In 2011, Anne Pope, the regional NAACP director, and five other individuals commenced a lawsuit to challenge the redistricting of the Albany County Legislature based upon the 2010 federal census. The plaintiffs claim that the black population of Albany County is large enough to require the 39 legislative districts to be apportioned to create five districts where the majority of the population is black (so-called minority-majority districts, or MMDs).

On Monday, Dec. 29, the legislature voted, 34 to 3, against a proposed settlement of the lawsuit.

Douglas Bullock, a legislator from Albany, spoke in favor of the settlement, noting that it would create the five MMDs to which plaintiffs were legally entitled. At the public hearing before the vote, I also spoke in favor of the settlement, saying that, even if the county were legally entitled to redistrict its legislature to create only four MMDs, creating the fifth MMD is the right thing to do, and that the county will ultimately be liable for millions of dollars of plaintiffs legal fees by continuing to fight a losing battle. 

Some legislators expressed legitimate concerns regarding the particulars of the agreement and others objected to the process by which it was negotiated. However, a common theme was the legislators’ desire to have the matter decided by the court: In other words, rather than negotiate a resolution of a divisive lawsuit that has been pending since 2011, either by accepting the proposed settlement agreement or by negotiating another agreement that would address their concerns, these legislators would like to drag out the matter for another two or three years, and have a resolution imposed upon them by the court, so they are not responsible.

Previous redistricting lawsuits

This is the third time in three decennial redistricting efforts that minority voters have challenged the redistricting of the Albany County Legislature in federal court. The 1990 lawsuit resulted in an increase from one to three MMDs. The litigation based on the 2000 redistricting created a fourth MMD, again reflecting the increased minority population in Albany County.

On both previous occasions, the county vigorously litigated the issues.  In 2011, the county once again failed to reapportion its legislature to comply with the legal requirements of the federal Voting Rights Act, and, once again, representatives of the minority community filed a lawsuit.

As in the earlier litigation, the plaintiffs are represented by the 1,200-lawyer firm of Gibson, Dunn and Crutcher, one of the largest and most powerful law firms in the country, which customarily represents large multinational corporations.

In one of its recent cases, the firm successfully brought a RICO (Racketeer Influenced and Corrupt Organizations) action against Steven Donziger, a United States lawyer who had the temerity to try to organize a legal defense for a community in Ecuador that had been ravaged by environmental misconduct by Gibson Dunn’s client Chevron (and by its predecessor Texaco).  During the course of the lawsuit, Gibson Dunn subpoenaed Internet service providers to try to learn the identities of any individual who had ever e-mailed Mr. Donziger.

Although the firm considers its work on behalf of the minority community in Albany as “pro bono,” it nevertheless expects to receive the attorneys fees to which it is entitled if it is successful in representing a civil rights plaintiff. 

Legal issues in this lawsuit

Shortly after the lawsuit was commenced in 2011, the plaintiffs moved for an injunction to stop the 2011 legislative elections.  To obtain an injunction, plaintiffs needed to show that they were likely to win at trial.

Plaintiffs’ motion was denied, and the Second Circuit Court of Appeals affirmed the denial, but provided a clear analysis of what issues would need to be addressed at trial.

Voting rights cases that allege a dilution of the minority vote by a redistricting scheme are analyzed under the four criteria set forth by the United States Supreme Court in Thornburg v. Gingles:

—1. Is the minority vote sufficiently large to constitute a majority in a particular district?;

— 2. Is the relevant minority “politically cohesive?”;

— 3. Does the majority vote in a bloc to defeat the minority vote? i.e. is the voting racially polarized?; and

— 4. Under the totality of circumstances, does the minority community have a fair opportunity to elect the candidate of its choice?

In analyzing these criteria, the Second Circuit overruled Judge Lawrence Kahn’s determination with respect to the first criterion and held that a simple majority of minority voters in a district was sufficient. The court did not address the cohesiveness issue and said that Judge Kahn “did not clearly err” in his ruling that plaintiffs had failed to demonstrate likely success with respect to racially polarized voting.

From late 2011 until early 2013, the case was extensively litigated. Fourteen separate attorneys from the Gibson Dunn firm appeared in the action (mega-firms usually use at least three lawyers to do what smaller firms do with one), discovery was conducted, and motions were made for sanctions with respect to discovery, until, finally, in March 2013, the county moved for summary judgment and plaintiffs moved for partial summary judgment.cJudge Kahn’s January 2014 ruling clarified the issues that would ultimately be tried, when the trial began last month.

Judge Kahn’s decision makes it clear that he does not think much of the County’s position. He rejected the county’s arguments that:

— 1. Plaintiffs lacked standing because they did not reside in white majority districts;

—  2. Plaintiffs could not combine black and Hispanic voters for the purposes of showing district size;

— 3. Plaintiffs had failed to prove political cohesion between black and Hispanic voting populations; and

— 4. Could not prove that Albany County voting was racially polarized.

Judge Kahn compared the case to a redistricting case in Bridgeport, Connecticut, where a court found that “anecdotal evidence” was sufficient to show political cohesion, and noted that the county had neither challenged the plaintiffs’ evidence nor offered to introduce any evidence of its own. Similarly, the county did not offer any evidence that racial polarization did not occur in Albany County voting. 

On the other hand, Judge Kahn granted plaintiffs’ motion for partial summary judgment on the issue of whether there were sufficient numbers of black voters to constitute five MMDs. He did not grant plaintiffs’ motion with respect to the issue of political cohesiveness because he believed that plaintiffs’  “anecdotal evidence” was the type of factual information that should be produced at trial, rather than be accepted on a motion.

However, he did not reject this evidence and he characterized defendants’ arguments against plaintiffs’ motion as “largely irrelevant.”

In order for plaintiffs to win, they will need to persuade Judge Kahn that their evidence with respect to political alliances between blacks and Hispanics is sufficient, and that the testimony of their expert witness on racially polarized voting should be credited. The county retained an expert with respect to this issue, but Judge Kahn, in a Nov. 18 ruling, denied a accommodation that would have permitted him to testify. 

Is the minority population

large enough for 5 MMDs?

The day after the county legislature rejected the settlement, I received a phone call from my legislator, Michael Mackey. We have had two extended conversations in the last week, and, even though we disagree, I appreciate his position, and his efforts to persuade me of it.

He voted against the settlement because three of the proposed MMDs, particularly two in Albany’s South End, had voting age black populations of 47.7 percent, 48.9 percent, and 49.4 percent — less than 50 percent.  He also pointed out that the same plaintiffs, in the 2003 case, argued that MMDs needed at least 55 percent black population to be viable.  Therefore, he voted against the settlement.

However, Judge Kahn concluded in his decision that it was possible to draw district lines with five MMDs with a greater than 50-percent black voting-age population. Therefore, it is not clear why either plaintiffs, or whoever was responsible for negotiating the settlement on behalf of the county, agreed to districts with less than 50 percent.

However, plaintiffs argue, apparently differently than 2003, that, even if the black population is insufficient, the Hispanic population should be included.  Adding the Hispanic voting-age population in the three districts results in combined minority voting age populations of 58.4 percent, 56.4 percent, and 60.7 percent.  If the black and Hispanic population should be considered together for “cohesiveness,” it seems fair to consider it for the purposes of simply determining the size of the vote.

Who will win the trial?

Mr. Mackey also told me that the county’s lawyers have been telling the legislature that they have a great case, and the plaintiffs are in trouble.  I do not doubt that Mr. Mackey is accurately reporting to me what he has been told: However, a belief that the county is likely to win ignores the history of the two previous lawsuits, what information can be inferred from Judge Kahn’s decision, and the fact that plaintiffs are united, while the county faces a sharp division between the county executive and the legislature, and among the legislators themselves.

Judge Kahn took the unusual step of ordering both sides to submit complex proposed findings of fact before the trial. These documents make it clear that the county is relying on its efforts to discredit plaintiffs’ experts, rather than presenting a case of its own.

Bluntly stated, if the county’s lawyers are telling legislators that this is a case that is likely to be won, they are either kidding themselves or, worse, misrepresenting the situation to their clients.

It appears that the legislature’s strategy is not to win at trial, but instead to moot the lawsuit by downsizing the legislature. The issue of whether the legislature should be downsized from its current 39 members to 29 or 25 has been the subject of public debate.

However, the legislature is presently considering downsizing to 35, and, to do it this year, an election year, rather than wait until the 2020 federal census. Downsizing will require the adoption of a local law, subject to a referendum that would have to be held this spring.

If the referendum were to be approved, the lines for all 35 new districts would have to be redrawn before the November election. However, with the larger districts, the minority population will arguably not be large enough to form five MMDs.

Mr. Mackey told me that the intention of the downsizing to 35 this year is primarily to take the first of two steps to reduce the legislature to 29 or 25, so that the disruption will be minimized.  However, the timing of the proposed downsizing, the fact that this explanation has not been publicly offered, combined with the obvious impact of the downsizing on the pending lawsuit, strongly suggests that the true motive of the downsizing is to defeat the lawsuit.

Settlement efforts

Large law firms are very good at spending tremendous amounts of time and energy litigating over very small points; however, sometimes they make very obvious mistakes.

Plaintiffs should have recognized that the county executive and the legislature would both have to approve any settlement, and are both necessary parties to the litigation. The plaintiffs’ failure to name the executive and the legislature as separate defendants, and to require them to have separate counsel has and will have serious consequences, especially with respect to settlement negotiations.

The two named defendants, the county and its board of elections, have been represented by County Attorney Thomas Marcelle and a retained lawyer from Guilderland, Peter Barber. However, at a Nov. 21 settlement conference, it became clear that the legislature and the executive had separate settlement positions and both attorneys recused themselves from settlement discussions.

Nevertheless, a settlement proposal was negotiated. This settlement, which was ultimately approved by Judge Kahn on Dec. 1, was signed on behalf of the county by a lawyer named Bryan Goldberger, who had not previously appeared as an attorney in the lawsuit, and who identified himself in the settlement document as “Special Counsel to the Legislature.”

It is still not clear to me who was responsible for this settlement.  Apparently, the legislature does not claim responsibility for it, and believes that it was negotiated at the instance of County Executive Daniel McCoy or County Attorney Marcelle. However, Mr. McCoy publicly threatened to veto it, and even commenced a lawsuit in state court to reaffirm that the executive, not the legislature, has the authority to negotiate settlements of pending litigation.

The settlement incorporated a map, one of several that have been proposed by the plaintiffs, setting the boundaries of 5 MMDs, and described a process for designing district lines for the remaining 34 legislative districts — a process that was expected to take a full year.

The legislative elections scheduled for 2015 would be delayed for a year, and the county agreed not to amend its charter to change the number of legislative seats until after the 2020 federal census. The county also agreed not to contest plaintiffs’ application for attorneys’ fees, but the fees were capped at $850,000. The terms of the settlement required their adoption by the legislature by Dec. 2, and either signature by the executive or a legislative override of a veto by Dec. 24.

However, the legislature did not vote to approve the settlement. Apparently, at a caucus of the 29-member Democratic majority, it became clear that there were not sufficient votes to override the threatened veto by the county executive. Therefore, the trial was scheduled to reconvene on Dec. 29.

County Attorney Marcelle, apparently at the direction of Mr. McCoy, prepared a new settlement proposal that was transmitted to the plaintiffs and to Magistrate Judge Christopher Hummel, who has been overseeing settlement discussions at some point in early to mid-December. According to Mr. Barber, Mr. Marcelle falsely represented that the proposal was supported by the legislature, an assertion that was subsequently denied by Mr. McCoy.

Mr. Barber stated that he advised Judge Hummel that he had been told that the legislature’s leaders had told him that they did not support the new settlement proposal and instead intended to proceed with the downsizing of the legislature. This suggests that, even if some legislative leaders had supported a settlement that would have created five MMDs in late November, and were willing to try to override an executive veto, their position changed at some point in December.

Mr. Barber, obviously frustrated with what he characterized as a “complete breakdown in the attorney-client relationship and trust with the county executive and county attorney,” advised both Mr. McCoy and Albany County Legislature Chairman Shawn Morse that he could no longer represent the county.

Nevertheless, a new settlement agreement was reached on Dec. 23, this time signed by Mr. Marcelle, as Albany County’s attorney. This new settlement again incorporated the same five MMDs. However, the settlement contemplated a very quick redistricting process for the remaining 34 districts, which presumed that a new redistricting plan would be implemented by May 2015, in time for the scheduled 2015 elections.

The settlement imposed a requirement that five MMDs must be maintained for the 2015 elections, even if the legislature decided to downsize this year, but permitted a proportional reduction in MMDs if the downsizing occurred after 2015. The new settlement agreement once again provided for an award of plaintiffs’ attorneys fees, but Mr. Marcelle was apparently able to negotiate a reduction of the cap to $750,000.

This is the settlement agreement that was rejected by the legislature on Dec. 29. While concerns could be raised over the actual map of the 5 MMDs, these concerns had not been raised in response to the same map when it was proposed the first time.

The legislature apparently takes exception to the fact that this was negotiated by the county executive’s office. The legislators feels that this new settlement is being rammed down their throats, especially since the settlement, by its terms, needed to be voted on by Dec. 29. However, I believe that the real agenda is that the legislature has now determined that it no longer wants to settle the matter.

Someone needs to be

the adult in the room

Plaintiffs are likely to prevail in their claim for five MMDs in any event, and both county Executive McCoy and whichever legislative leaders were responsible for the first settlement seem to understand this.

Mr. Marcelle, who Judge Kahn has directed to testify as a witness in the trial (to the barely concealed glee of some legislators), has played numerous, perhaps contradictory roles, throughout this litigation: as a litigation attorney, possibly as the architect of settlement proposals despite his recusal, and now as trial counsel.

If, as has been reported, he is now claiming that plaintiffs’ is case is weak, why did he (if he actually did) advocate for its settlement?

Some legislators may have legitimate concerns over the new map: If so, those concerns should be articulated and negotiated. However, the legislature and the executive need to get over themselves, and recognize that the county has nothing to gain and everything to lose by continuing this lawsuit.

Even if Judge Kahn decides this case soon, there will be extensive post-trial motions, appeals, and continued litigation that can and needs to be resolved by a settlement. Regardless of the tortured history of this case; regardless of who did or said whatever; regardless of the settlements that have been proposed, who proposed them, or why they have been rejected, it is clear that this case needs to be resolved with a map that provides for five MMDs, and puts an end to this litigation.

Responsible parties, if there are any, can and should be able to do this.

Editor’s note: Peter Henner is a lawyer who lives in New Scotland.