Court Questions Plans to Create Minority Voting District

, New York Law Journal

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ALBANY - A federal judge in Albany has ordered a trial on an issue that continues to perplex the federal appellate courts: Are black and Hispanic voters politically cohesive?

The question arises in the context of a voting rights case in which minorities in Albany County are seeking a fifth "majority-minority" district, one in which minorities are in the majority.

After a challenge following the 1990 census, the Albany County Legislature added a third majority-minority district. Another was added after the 2000 census. And now the minority community is seeking a fifth.

Plaintiffs in Pope v. County of Albany, 11-cv-0736, want to combine black and Hispanic voters to bolster their claim under Section 2 of the Voting Rights Act of 1965 to meet one of the requirements that would entitle them to a fifth district, namely, political cohesiveness.

But it is unclear whether blacks and Hispanics are indeed politically cohesive and whether, together, they constitute a "minority group" as envisioned under the Voting Rights Act.

Northern District Judge Lawrence Kahn (See Profile) said courts have split on whether a "coalition" of minority groups can, for Section 2 purposes, comprise a single minority group. He noted that the U.S. Court of Appeals for the Second Circuit, in this case, declined to decide the issue (see Pope v. County of Albany, 687 F.3d 565 (2012)).

Additionally, Kahn said the U.S. Supreme Court has sidestepped the question, and in Growe v. Emison, 507 U.S. 25 (1993) advised only that "if such claims were allowed, the entire minority group would have to be politically cohesive." Kahn said the Fifth and Eleventh circuits have approved coalition claims, but the Sixth has not.

Kahn agreed with the reasoning of the Fifth and Eleventh circuits, finding nothing in the statute or its legislative history that would preclude the right of politically cohesive minority groups to coalesce under the Voting Rights Act.

But that leaves open the question of whether blacks and Hispanics in Albany County, which overwhelmingly live in the same geographically compact sections of the City of Albany, meet the test of political cohesiveness by sharing common interests and evincing a tendency to vote as a bloc.

Kahn acknowledged a dearth of empirical or statistical evidence on Hispanic voting trends in Albany, but said that whatever empirical or statistical evidence exists is augmented by anecdotal evidence, at least to the extent necessary to preclude summary judgment and to allow the matter to proceed to trial. He also noted that the City of Albany, in its redistricting of city council wards, found that the black and Hispanic populations within the municipality are politically cohesive.

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