(Source: Albany County Redistrict Commission)

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.

“The parties agree that it is not possible to accurately analyze Hispanic voting patterns,” Kahn wrote. “Plaintiffs have compiled a record of anecdotal political cohesion to show that the black and Hispanic communities satisfy Section 2 cohesion requirements.”

Kahn bluntly rejected the county’s assertion that a new majority-minority district is unwarranted because many of the potential members are felons who are ineligible to vote.

“Even if the Court were to accept as true the bare allegations that the County’s black population contains a disproportionate number of felons, to deny relief on such basis would be irresponsible,” Kahn wrote in a footnote. “To potentially penalize a minority group seeking to reform one structural issue, an abridgment of voting power, because of the existence of another society issue, racially correlated felony rates, would directly counteract [the Voting Right Act's] broad remedial purpose.”

Statistical Evidence

The plaintiffs are represented primarily by Paul DerOhannesian II of Albany and Mitchell Karlan of Gibson, Dunn & Crutcher in Manhattan. Peter Barber of Murphy, Burns, Barber & Murphy in Albany and the Albany County Attorney’s office appeared for the county.

DerOhannesian noted that Kahn had initially held that the black and Hispanic voting populations could not be compiled absent statistical evidence of cohesiveness, but the Second Circuit subsequently found that statistical proof is not necessary. He said that if the black and Hispanic groups are combined for Voting Act purposes, it could justify not only a fifth majority-minority district in the City of Albany, but a sixth.

“It is a broad reading of the ability of Voting Rights Act to establish black and Hispanic voters as a community, even when there is no statistical evidence available concerning the voting patterns of Hispanic voters,” DerOhannesian said of the decision.

DerOhannesian said the plaintiffs have already shown that there are sufficient numbers of black residents to justify a fifth majority-minority district. At trial, he said, the plaintiffs will have to prove cohesion among the blacks and Hispanics as well as racial polarization in voting patterns.

Albany County Attorney Thomas Marcelle said he is neither surprised nor disappointed that Kahn wants to see proof of political cohesion and is allowing the case to proceed.

“He recognized that there is no statistical proof and that the experts could not say, looking at election results, that Hispanics and blacks are politically cohesive,” Marcelle said. “If they act as one politically, they can be counted as one for the purposes of Section 2. But if they are independent of each other and have different or varied interests…these two minority groups cannot be counted together.”

Marcelle said the open question of whether black and Hispanic voters can be combined into a single coalition under the Voting Rights Act needs to be resolved.

“Judge Kahn is certainly cognizant about the potential importance of this case and I think he is taking a rather cautious and conservative approach,” Marcelle said. “I think he will go forward and build what I imagine will be quite an extensive record on the subject, and then take a hard look at the evidence. Given the indecisiveness of the law, it is probably wise to have a full record.”

Marcelle stressed that the City of Albany lost one of its positions on the 39-member county legislature due to redistricting, but minority groups retained the majority-minority seat they won after the 2000 census. Consequently, he said, the increased minority population in the city is already reflected in the increased clout of the majority-minority seats on the county legislature.