Case 2:18-cv-03549-GRB-ST Document 133 Filed 05/28/19 Page 1 of 81 PageID #: <pageID> UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------X ANA FLORES, RENE FLORES, MARIA MAGDALENA HERNANDEZ, MAGALI ROMAN, MAKE THE ROAD NEW YORK, MEMORANDUM OF and NEW YORK COMMUNITIES FOR DECISION & ORDER CHANGE, 2:18-cv-3549 (ADS)(GRB) Plaintiffs, -against- TOWN OF ISLIP, ISLIP TOWN BOARD, SUFFOLK COUNTY BOARD OF ELECTIONS, Defendants. ---------------------------------------------------------X SPATT, District Judge. This is an action brought under Section Two of the Voting Rights Act of 1965, 52 U.S.C. § 10301 et seq (“VRA”). The plaintiffs, Hispanic residents of the Town of Islip (the “Town” or “Islip”) as well as two community advocacy organizations, contest the at-large voting procedure used in the Town to elect the four councilpersons of the Town Board of the Town of Islip (the “Town Board”) (together with the Town, the “Islip Defendants”). The Plaintiffs complain that the at-large system dilutes the voting strength of the Hispanic minority, in violation of the VRA. They seek a preliminary injunction that enjoins the Islip Defendants and the Suffolk County Board of Elections (“BOE”) from holding elections for the Town Board under the current system and establishes a transition to single-member districts for all future elections. The BOE has not taken a position in this litigation but objects to the issuance of a preliminary injunction. In response to 1 Case 2:18-cv-03549-GRB-ST Document 133 Filed 05/28/19 Page 2 of 81 PageID #: <pageID> this motion, the Court conducted an evidentiary hearing at which 16 witnesses testified over a period of 12 days. The hearing concluded with closing arguments on May 2, 2019 and the Court reserved its decision. In deciding the instant motion, the Court notes that “enjoining an election is an ‘extraordinary remedy’ involving far-reaching power, which is almost never exercised by federal courts prior to a determination on the merits[.]” Cano v. Davis, 191 F. Supp. 2d 1135, 1137 (C.D. Cal. 2001) (quoting Oden v. Brittain, 396 U.S. 1210, 1211, 90 S. Ct. 4, 24 L. Ed. 2d 32 (1969)). I. LEGAL STANDARDS A. Preliminary Injunction In general, a preliminary injunction may be granted when the party seeking the injunction shows that (1) absent injunctive relief, she will suffer irreparable injury and (2) either (a) a likelihood of success on the merits, or (b) that there are sufficiently serious questions going to the merits of the claims to make them a fair ground for litigation, and a balance of hardships tips decidedly in her favor. N. Am. Soccer League, LLC v. U.S. Soccer Fed’n, Inc., 883 F.3d 32, 37 (2d Cir. 2018); Wright v. Giuliani, 230 F.3d 543, 547 (2d Cir. 2000); Brenntag Int'l Chems., Inc. v. Bank of India, 175 F.3d 245, 249 (2d Cir. 1999). If, on the other hand, “the moving party seeks a preliminary injunction that will affect government action taken in the public interest pursuant to a statutory or regulatory scheme, the injunction will be granted only if the moving party meets the more rigorous likelihood-of-success standard.” No Spray Coal., Inc. v. City of New York, 252 F.3d 148, 150 (2d Cir. 2001) (per curiam) (internal citations and quotation marks omitted). As here, when the movant seeks an injunction against the government that “will alter rather than maintain the status quo, the movant must show … [a] substantial likelihood of success.” Id. (internal citations and quotation marks omitted); Torres v. New York State Bd. of Elections, 462 2 Case 2:18-cv-03549-GRB-ST Document 133 Filed 05/28/19 Page 3 of 81 PageID #: <pageID> F.3d 161, 183 (2d Cir. 2006) (“[w]here ... the relief that plaintiffs seek either (1) stays governmental action taken in the public interest pursuant to a statutory scheme, or (2) mandates an affirmative action, plaintiffs must demonstrate a ‘clear’ or ‘substantial’ likelihood of success on the merits of their claim”), rev'd on other grounds, 552 U.S. 196, 128 S. Ct. 791, 169 L. Ed. 2d 665 (2008); see, e.g., Pankos Diner Corp. v. Nassau Cty. Leg., 321 F. Supp. 2d 520, 523 (E.D.N.Y. 2003) (requiring a clear or substantial likelihood of success on the merits where the plaintiffs sought “to enjoin enforcement of and, ultimately, void a statute that was already in effect at the time that the Complaint was filed”). An injunction in this case will alter the status quo by not only enjoining the Town and the BOE from holding elections under the current at-large structure, but requiring a transition to single- member districts on a preliminary basis. As a result, the Plaintiffs are required to establish a substantial likelihood of success on the merits. See Queens Cty. Republican Comm. ex rel. Maltese v. New York State Bd. of Elections, 222 F. Supp. 2d 341, 345-46 (E.D.N.Y. 2002) (Spatt, J.). In addition, the Plaintiffs must also demonstrate that they will suffer irreparable harm in the absence of an injunction and that it is in the public interest “to grant injunctive relief [when] faced with an impending election.” Montano v. Suffolk Cty. Legislature, 268 F. Supp. 2d 243, 260 (E.D.N.Y. 2003) (Spatt, J.). B. Voting Rights Act Section Two of the VRA, as amended, establishes the following: (a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 10303(f)(2) of this title, as provided in subsection (b). 3 Case 2:18-cv-03549-GRB-ST Document 133 Filed 05/28/19 Page 4 of 81 PageID #: <pageID> (b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population. 52 U.S.C.A. § 10301 (emphasis in original). A plaintiff is not required to prove discriminatory intent in order to prove a violation under Section Two. See Chisom v. Roemer, 501 U.S. 380, 394, 111 S. Ct. 2354, 115 L. Ed. 2d 348 (1991). In Thornburg v. Gingles, 478 U.S. 30, 106 S. Ct. 2752, 92 L. Ed. 2d 25 (1986), the Supreme Court established a framework to establish a Section Two cause of action. First, a plaintiff is required to satisfy three “preconditions”: (1) the minority group must be sufficiently large and geographically compact to constitute a majority in a single-member district; (2) it must be politically cohesive; and (3) the white majority must vote sufficiently as a bloc to enable it, in the absence of special circumstances, to defeat the minority's preferred candidate. Id. at 50-51. Regarding the third prong, the Supreme Court instructed that “in general, a white bloc vote that normally will defeat the combined strength of minority support plus white ‘crossover’ votes rises to the level of legally significant white bloc voting.” N.A.A.C.P. v. City of Niagara Falls, 65 F.3d 1002, 1007 (2d Cir. 1995) (quoting Gingles, 478 U.S. at 56). While the satisfaction of the Gingles preconditions is required to prove a Section Two violation, a court’s inquiry at that stage is far from complete. Next, a district court must consider whether, under the totality of the circumstances, “(1) the political processes for nomination and election (2) are not equally open to participation by members of the protected class (3) because the 4 Case 2:18-cv-03549-GRB-ST Document 133 Filed 05/28/19 Page 5 of 81 PageID #: <pageID> class members have less opportunity than others to participate and elect their representatives of choice.” Goosby v. Town Bd. of Town of Hempstead, 180 F.3d 476, 491 (2d Cir. 1999). In other words, a court must determine whether the minority group’s political power is actually diluted. Johnson v. De Grandy, 512 U.S. 997, 1013, 114 S. Ct. 2647, 2658, 129 L. Ed. 2d 775 (1994). To do that, the Supreme Court identified nine factors, which are listed in the Senate Report accompanying the 1982 amendments to Section Two of the VRA, as relevant to such an inquiry. Those factors are as follows: (1) the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process; (2) the extent to which voting in the elections of the state or political subdivision is racially polarized; (3) the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group; (4) if there is a candidate slating process, whether the members of the minority group have been denied access to that process; (5) the extent to which members of the