07/09/07 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

        
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
 :              
UNITED STATES OF AMERICA
and CESAR RUIZ,     :
 :            
        Plaintiffs,    :  
 :              
           v.       : 06 Civ. 15173 (SCR)
 :              
 :              
VILLAGE OF PORT CHESTER,    :    
 :              
    Defendant.    :
 :            
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
 POST-TRIAL MEMORANDUM OF LAW OF
PLAINTIFF-INTERVENOR CESAR RUIZ
            
      Patsy D. Gouldborne & Associates, P.C.
      Patsy D. Gouldborne  
       Richard St. Paul  (RS6388)
      959 East 233
rd
 Street
Bronx, New York 10466
(718) 515-7500
Randolph McLaughlin
       RMM2690
       78 North Broadway
       White Plains, N.Y. 10603
       914-422-4340
    
       Debra S. Cohen
       DSC6430
       470 Mamaroneck Ave.
       Suite 400
       White Plains, N.Y.  10605
       914-478-1623 2
TABLE OF CONTENTS
Preliminary Statement         4
Statement of Facts              5
ARGUMENT                     13
PORT CHESTER SHOULD BE ENJOINED FROM CONDUCTING
ELECTIONS FOR THE VILLAGE BOARD OF TRUSTEES
          ON AN AT-LARGE BASIS.                                                                                   13
Conclusion                        17 3
TABLE OF AUTHORITIES
Cases:
Goosby v. Town Bd. of Hempstead, 180 F.3d 476 (2d Cir. 1999)   passim
NAACP v. City of Niagara Falls, 65 F.3d 1002 (2d Cir. 1995)    14,15
Thornburg v. Gingles, 478 U.S. 30 (1986)      passim
Statutes:
42 U.S.C. section 1973       13 4
Preliminary Statement
 Plaintiff-Intervenor Cesar Ruiz respectfully submits this memorandum in support
of the issuance of a permanent injunction enjoining the Village of Port Chester from
holding elections for the Village Board of Trustees on an at-large basis.  Plaintiff Ruiz
will discuss the evidence adduced at the trial on the merits.  Additionally, Plaintiff  Ruiz
adopts the findings of fact and conclusions of law contained in the Post Trial
Memorandum of the United States with respect to the proof of plaintiffs’ claim that the
at-large election system in the Village of Port Chester violates section 2 of the Voting
Rights Act.  
As more fully discussed below, a review of the facts demonstrates that the at-
large election system has served as an insurmountable impediment to the ability of
Hispanic voters in the Village to nominate and elect candidates of choice. As of July
2006 Hispanic residents were estimated to constitute 27.5 % of the Village of Port
Chester’s voting age population. Despite the significant growth of the Village’s Hispanic
population, ethnically and racially polarized voting patterns in village-wide elections
have prevented Hispanic residents from meaningfully participating in the political
process. Although Hispanic residents such as Plaintiff Cesar Ruiz have shown their
interest and ability to serve the Village as elected officials, no Hispanic has ever been
elected under the present at-large system to a village office. Additionally, only a handful
of Hispanic residents have been appointed to serve on Village boards and
commissions.
The present at-large system has created insurmountable obstacles for Hispanic
residents to elect candidates of their choice and to have their interests and concerns
represented on an equal basis as White residents of the Village. Voting practices and 5
procedures in the conduct of local elections have enhanced the discriminatory effects of
the at-large election system. The procedures used by the political parties to nominate
candidates for the Port Chester Board of Trustees have disadvantaged the selection of
candidates preferred by Hispanic voters. Political campaigns in the Village have been
characterized by overt and subtle racial appeals. The recent Mayoral election, which
took place in the midst of this lawsuit, revealed the underbelly of Port Chester’s
dysfunctional political process where local officials and candidates could be intimidated
into complicity with the dissemination of a flier they acknowledged was “racist” and
“disgusting”.  These facts, coupled with the findings and conclusion that the Court
reached in its preliminary injunction decision clearly demonstrate that without the
Court’s intervention, Hispanic voters will not be able to nominate and elect a candidate
of choice under the current at-large election scheme.
Statement of Facts
Plaintiff Ruiz’s experience with the political process
In 2001, Plaintiff Ruiz ran for the office of Village trustee on the Democratic Party
line. During the course of the campaign, Plaintiff Ruiz began to discuss issues he felt
were important to many Hispanic residents in the Village such as the need for affordable
housing, a downtown clinic and more bilinguals in Village offices. Ruiz, PIT., p. 36. After
Plaintiff Ruiz began speaking out on these issues he was instructed to limit his
campaign activities to contacting registered Latino voters. Ruiz, PIT. p. 39. He refused,
and was not given any support by the Democratic Party for the rest of the election.
Ruiz, PIT, p. 40.  6
Former Mayor Gerald Logan testified that he found it “unusual” that during the
2001 election, when he was running for re-election for Mayor as a Republican and
Plaintiff Ruiz was running for a seat on the Board of Trustees as a Democrat, he
observed the Democratic Mayoral candidate and other Democratic trustee candidate
walking around the Village campaigning together but never saw them with Plaintiff Ruiz.
Mr. Logan testified that in his experience “all three candidates would walk together
through neighborhoods, through the buildings, stand in front of the post office, all the
things you did in a campaign.” He therefore found it “strange” to see Plaintiff Ruiz
“walking by himself”. Logan, TT., p. 391-92.
This pattern of exclusion repeated itself in 2006 when, prior to the Court enjoining
the trustee election, a Hispanic candidate, Reverend Ariel Acosta, ran as a Republican
trustee candidate on the slate with Mayoral candidate Domenick Cicatelli and trustee
candidate Bart Didden. Mr. Cicatelli testified that he campaigned door to door with Mr.
Didden but not with Reverend Acosta. Cicatelli,TT, p. 750-751.  
Despite receiving the overwhelming support of Latino voters in his 2001 race,
Plaintiff Ruiz placed last in the election. Ruiz, PIT, 43-44. From that point on, Mr.  Ruiz
concluded that it would be futile to run again in an “at large” system in part because in
every election “anybody that wins an election wins from the northern districts of 18, 19,
and 25”. Ruiz, PIT, p. 45. This presumption on his part is supported by the fact that
presently almost all of the Village Trustees, and the Mayor, reside within a few blocks of
each other in the northern section of the Village. Pl. Exh. 32; Morrison, TT p.561.
Plaintiff Ruiz does not believe that any Hispanic preferred candidate has a
chance in an “at large” election because “anyone who runs for office as Hispanic, they 7
will get used the same way I was used.” Ruiz, PIT, p. 46. Although the political support
he provided to others was not reciprocated during his own election experience, Plaintiff
Ruiz’s political acumen and credibility, particularly in regard to Port Chester’s Hispanic
voters, continues to be sought after by candidates running for Village office. In 2004, Mr.
Ruiz was asked by Democratic trustee candidate (now Mayor) Dennis Pilla to assist him
with drafting Spanish language fliers and accompanying him on campaign walks in
south and central Port Chester. TT, p. 164-165.
History of Discrimination against Hispanics
 The history of racial discrimination towards Hispanics is demonstrated by the
policies, procedures and practices used to implement the voting process on Election
Day. Despite the Village’s significant Hispanic population, most polls had no Spanish
speaking poll worker. Deputy Village Clerk Joan Marino testified that it was not the
practice of the Village to employ Spanish speaking election inspectors. Marino TT, p.
80. It was not until special circumstances presented themselves in the form of this
lawsuit that she was instructed to undertake efforts to identify bilingual inspectors.
Marino TT, p. 97.  
Prior to the 2007 election, no efforts were made to determine the percentage of
Hispanic voters in the respective election districts as a consideration for assigning
bilingual poll workers. Marino TT p. 121. Poll inspector Luz Chavisa testified that during
the election of 2002, she was the only person working at the polling place who spoke
Spanish and that her fellow poll workers ignored her all day.  Chavista TT, p. 840.    8
Hispanic and non-Hispanic voters were treated differently at the polls both in the
courtesy extended to them by poll workers and requirements imposed upon Hispanic
voters in order to vote. Chavista TT, p. 844-845. Palma TT, p. 136-138, 140-141.
Spanish-speaking voters were required to produce driver’s licenses as photo
identification in order to vote. Chavista TT, p. 847-848, 857-858. Spanish-speaking
voters were turned away when their names did not appear on voter lists while other
voters were allowed to fill out an affidavit ballot. Chavista TT, p. 848- 849, Palma, TT, p.
136-138, 140-141.
Non-Hispanic election poll worker Joanne Villanova recalled that the Election
Day she worked with Ms. Chavista at the polls in 2006 was the only time in fifteen years
she had a Spanish speaking coworker. Villanova TT, p. 923.  Ms. Villanova does not
speak Spanish herself. When she was unable to understand a Spanish speaking voter’s
name when they came to vote, she would ask them for identification. Villanova TT, p.
925-926. Since she did not speak Spanish, Ms.Villanova used hand signals to try to
communicate to Spanish speaking voters what she was requiring of them in the way of
identification prior to allowing them to vote. Villanova TT, p. 981. Ms. Villanova noted
that information in the ballot was provided in Spanish, as well as English for the past
few years only after “things came, arose that their people were not being treated
right…”. Villanova TT, p. 928-929.
Village Trustee John Crane, a lifelong resident of Port Chester, testified that he
has had people express to him in “couched” terms their frustration about Hispanic
residents and recalled a particular comment where he was told, “You have to do
something about them people”. Crane TT p. 664-667.  9
Crane grew up in a neighborhood in southern Port Chester identified as District 6
in the government’s illustrative plan. Crane TT, p. 668-670. According to Mr. Crane, the
area’s Caucasian population has declined and the Latino population increased as
“Caucasians that were becoming more affluent …moved to other areas or other
municipalities. Crane TT p. 67-671. In 2004 Mr. Crane joined most of the members of
the Village Board of Trustees when he moved to a neighborhood in the northern in the
northern part of Port Chester, identifiable as District 1 in the government’s illustrative
plan, that is predominantly single family homes occupied by “European” non-Hispanics.
Crane TT, p. 672.
Trustee Crane, along with Trustee Cicatelli and other local officials, has identified
overcrowding and illegal apartments as a major problem in Port Chester. Crane TT, p.
673-673. Overcrowding and illegal apartments are not a problem in the northern part of
District 1 where almost all of the trustees presently live because the homes in that area
are primarily single-family homes. Crane TT, p. 674. One of Mr. Crane’s proposals to
address this problem was to make the rental of an illegal apartment a felony that would
apply to tenants as well as landlords. Crane TT p. 677-678
Village Planning Consultant, and former Village planner, Patrick Cleary, testified
at length regarding conditions in a community he described as the “central core” in the
Village. He described the housing in that part of town as of less quality than other parts
of town and the people living there as “transient”. Cleary TT, p. 810, 820. Cleary’s view
was that “less pride” was taken by “tenants, as well as perhaps landlords” in their
buildings. Mr. Cleary’s conclusion was based on inferences drawn from his
“observations”. Cleary TT, p. 825. He had no actual firsthand knowledge garnered from 10
conversations with local residents that they did not take pride in their building or
neighborhood. Cleary TT, p. 821-825.
Racial Appeals in Political Campaigns
 Elections for Mayor and two Village Board of Trustee seats were scheduled to
take place in March 2007. The Republican candidate for Mayor was sitting trustee
Domenick Cicatelli. The Republican trustee candidates were Reverend Ariel Acosta and
Mr. Bart Didden. Didden TT, p. 228. Mr. Didden also serves on the Village’s Planning
Commission, Parking Authority and Alarm Review Board. Didden TT p. 222-223.
Although Mr. Didden was a Republican trustee candidate in March 2007, he was also
interviewed by the Democratic selection committee as a potential nominee for trustee or
Mayor. Didden TT p. 226-227. He ran as a Republican after refusing to run as a trustee
candidate on a slate with Dennis Pilla as the mayoral candidate. Didden TT, p. 226.
As a result of this lawsuit, the Court issued a preliminary injunction staying the
March election for the two Village Board of Trustees seats but allowed the election for
Village Mayor to proceed. Shortly before the election an anonymously authored flier was
sent in the mail to Village voters. The flier began with the statement “Pilla Will Sell Us
Out”. Pl. Exh. 63. Mr. Didden initially denied any responsibility for the flier but after
receiving a subpoena in this action, revealed he was responsible for the flier in
“collaboration” with Trustee John Crane and School Board member Dominic
Bencivenga. Didden TT. p. 247-248, 251, 253. The flier describes Democratic mayoral
candidate Dennis Pilla’s Hispanic campaign manager, Blanca Lopez, as a “super secret
double agent”. Didden TT, p. 266. It stated, “what Blanca cares about is only Hispanic” 11
and asks, “What does Blanca Lopez, the wolf in sheep’s clothing, want for Port
Chester? More affordable housing, more subsidized housing, more Section 8 housing?”.
Didden TT, p. 262,265. The flier observed, “and she is going to get it because Lopez
and Pilla are in bed together on the village affordable housing subcommittee. The wolf
is in the house, thanks to Pilla.” Didden TT, p. 267. The flier describes Plaintiff Cesar
Ruiz as a “hot dog vendor turned political consultant”.
Trustee Crane described Mr. Didden as a “sick person” and the flier as racist, sexist,
disturbing, inappropriate, offensive, disgusting and highly inflammatory. Crane TT p.
631, 634, 641, 681. He believed the flier, if sent, would ruin fellow Republican Domenick
Cicatelli’s chances of getting elected Mayor of Port Chester. Crane TT p. 632,682.Yet,
Mr. Crane did not take steps to stop Mr. Didden from sending the flier, change the flier’s
contents nor alert Mr. Cicatelli or others that it was to be sent out. After the flier was
sent, Trustee Crane “kept Mr. Didden’s confidence” about the flier out of “fear of
retribution”.  Crane TT. p. 680-681. Mr. Crane did not reveal Mr. Didden’s authorship of
the flier because “Bart’s a force to be reckoned with”, he wanted to “stay out of his line
of fire” and not “incur the wrath of Bart.”  Crane TT, p. 634 -635.
Republican mayoral candidate Domenick Cicatelli sent out 3-4 flyers and mailers
during the 2007 Mayoral election. As during his 2004 campaign, none were in Spanish.
Cicatelli TT, p. 731. This voting rights lawsuit was the subject of materials put out by Mr.
Cicatelli’s campaign. One flier stated, “If Port Chester adopts this plan, it may well be
sued by a disgruntled citizen alleging a violation of their constitutional rights.” Pl. Exh.
70, Cicatelli TT, p. 741. The person referenced in Mr. Cicatelli’s flier was one of the 12
Trustee candidates he supported who ran with him on the Republican slate prior to the
Court’s enjoining of the Trustee election, Bart Didden. TT 743, 749.
 In addition to the involvement of Trustee Crane and School Board member
Bencivenga in the “Pilla Will Sell Us Out” flier, there are other examples of Mr. Didden’s
influence on the political process despite his racially polarizing actions and attitudes.
After the March mayoral election, there were two vacancies on the Village Board of
Trustees to be filled by appointment. Despite his awareness of Mr. Didden’s role in the
flier, Trustee John Crane recommended Mr. Didden’s appointment to the Village Board.
Mr. Crane wrote in an e-mail, “If Mr. Branca gets voted on, I will then recommend Mr.
Didden. Why? Because we need people up there that will rebuild the perception of our
party from weak and dysfunctional to strong and organized.” Pl. Exh. 88, Crane TT, p.
649.  After Mr. Didden failed to be appointed to the Village Board, he in turn sent an email to approximately twenty five people asking, “Am I the white casualty to the Cesar
Ruiz syndrome?”.Pl’s Exh. 88,  Didden TT, p. 231.  
 The foregoing facts clearly support the Court’s earlier conclusion that a section 2
violation has been established and that the at large election system must be enjoined
permanently.  The history of discrimination in both the political process and the electoral
process is evident from the testimony adduced at trial.  The ethnic divisions are evident
from the use of a racist flier after this Court had enjoined the trustee election in March,
and the involvement of a current trustee, a school board member, and a candidate for
election to the trustee board in the creation of the flier.   13
ARGUMENT
PORT CHESTER SHOULD BE ENJOINED FROM CONDUCTING
ELECTIONS FOR THE VILLAGE BOARD OF TRUSTEES ON AN AT-LARGE BASIS.
 In his Complaint, plaintiff Cesar Ruiz alleges that Port Chester’s at-large system
of electing its Trustees impermissibly dilutes the voting strength of, and has the effect of
discriminating against, Port Chester’s Hispanic voters in violation of Section 2.  Section
2 of the Voting Rights Act, as amended, states in part as follows:
(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 . . . .
(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. . . .
42 U.S.C. § 1973.  The essence of a Section 2 claim is that an “electoral law, practice,
or structure interacts with social and historical conditions to cause an inequality in the
opportunities enjoyed by [minority] and white voters to elect their preferred
representatives.”  Thornburg v. Gingles, 478 U.S. 30, 47 (1986).
 In Gingles, the Supreme Court held that claims of vote dilution under Section 2
must meet three preconditions:
1. The minority group must be able to demonstrate that it is sufficiently large
and geographically compact to constitute a majority in a single member
district;
 2.  Second, the minority group must be able to show that it is politically
cohesive;
  3.  Third, the minority group must be able to demonstrate that the white
majority votes sufficiently as a bloc to enable it — in the absence of 14
special circumstances, such as the minority candidate running unopposed
– usually to defeat the minority’s preferred candidate.
  
478 U.S. at 50-51; Goosby v. Town Bd. of Hempstead, 180 F.3d 476, 491 (2d Cir.
1999).
 Once the Court determines that the Gingles preconditions are met, it must also
analyze the “totality of circumstances” with reference to the following factors, which
were listed in the Senate Report for the 1982 amendments to the Voting Rights Act:
1 whether there is a history of official discrimination in the political unit;
2 whether voting is racially polarized;
3.       whether current electoral mechanisms enhance vote dilution;
4.       if there is a candidate slating process, whether access to such a process
           is denied to minorities;
5. the extent to which members of the minority group in question bear the
effects of discrimination in education, employment, and health, that hinder
their ability to participate in the political process;
6.        whether racial appeals have formed part of political campaigns; and
7.      whether minorities have been elected to public office in the jurisdiction;
Gingles, 478 U.S. at 44-45 (citing S. Rep. No. 417, 97th Cong., 2d Sess. (1982));
Goosby, 180 F.3d at 491.  The Gingles Court also noted two other factors in the Senate
Report that plaintiffs may elect to show in some cases: whether elected officials have
failed to respond to minority needs, and whether the policy underlying at-large elections
is tenuous.  See Gingles, 478 U.S. at 45; Goosby, 180 F.3d at 491-92.
With respect to the Senate Factors, the Second Circuit clarified that “[t]he list of
factors is neither comprehensive nor exclusive.  Rather, in deciding whether section 2
has been violated, courts are to engage in a searching practical evaluation of the past
and present reality.”  NAACP v. City of Niagara Falls, 65 F.3d 1002, 1007 (2d Cir.
1995).  If the Gingles preconditions are met, however, “[i]t will be only the very unusual
case in which the plaintiff can establish the existence of the three Gingles factors but 15
still have failed to establish a violation of section 2 under a totality of the circumstances.”
Id. at 1020 n.21.  
As stated above, Plaintiff Ruiz incorporates by reference the Court’s earlier
findings of fact and conclusions of law regarding the evidence offered at the preliminary
injunction hearing with respect to the Gingles preconditions and the totality of
circumstances test. Plaintiff Ruiz discusses below the additional proof that was offered
at the trial on the merits that provided additional support for the Court’s earlier
conclusions and findings of a Section 2 violation.
 The Court in reaching its decision on the government’s motion for a preliminary
injunction concluded that the three Gingles preconditions have been met by the
evidenced adduced at trial. Plaintiff Ruiz will rely on the proof at the preliminary hearing
and on the Court’s earlier findings and discuss below the additional evidence that
supports a section 2 violation under the totality of circumstances test. Plaintiff Ruiz
observes, however, that “it will be only the very unusual case in which the plaintiffs can
establish the existence of the three Gingles factors but have still failed to establish a
violation of § 2 under a totality of the circumstances.” Niagara Falls, 65 F.3d at 1020
n.21 (quotation marks and citation omitted).  
  The slating process in Port Chester compromises the ability of Hispanic voters to
elect their candidates of choice (Senate factor # 4).  In Port Chester, candidates are
selected by party caucuses rather than political primaries.  In 2001, when the
Democratic Party nominated Plaintiff Ruiz , the Party used Mr. Ruiz to attract Hispanic
votes for his running mate, but did not support him in return. The testimony of Mayor
Logan supports that conclusion.  As noted above, he never observed Plaintiff Ruiz
campaigning with his running mates as was the common practice in the Village.  Plaintiff
Ruiz also believed that he was used to garner support in the Hispanic community, but
that the other candidates did not reciprocate in the white sections of the village.  Thus,
the party hierarchy’s control over its caucusing and nominating process has hindered, 16
and will continue to hamper, the ability of minorities and minority-preferred candidates to
be nominated and elected to the office of village trustee.
 Additionally, the experience of Hispanic voters at the polls lends further support
to the conclusion that the political processes are not equally open to minority group
participation.  Both Ms. Chavista and Mr. Palma testified that that they observed that
Spanish speaking voters were treated differently by election inspectors.  Spanishspeaking voters were asked for identification by inspectors and not permitted to vote
when they could not produce the proper form of identification.  Ms. Villanova testified
that she had only worked on one occasion with a Spanish speaking inspector, Ms.
Chavista.   Ms. Villanova also testified that when she could not communicate with
Spanish speaking voters in their language she used hand signals.  
  Elections involving Hispanic candidates have involved racial and ethnic appeals.
The proof is crystal clear that even after this Court reached its conclusion that there was
a Voting Rights Act violation, local officials and members of the Republican Party, and a
candidate for office as trustee, created a racist, sexist, disgusting flier in an effort to
inflame the already polarized electorate against the Democratic candidate for Mayor.  It
is clear that they sought to use his affiliation with a Hispanic leader and his campaign
manager, Blanca Lopez, as a weapon to divide the voters on the basis of racist beliefs.
They used wedge issues, such as section 8 and affordable housing concerns, to inflame
the voters.  If this is what they will do when the Court is directly involved and monitoring
the process, one need not speculate what will happen if this matter is concluded and
business is allowed to continue under the status quo.  While the appeal may not have
been as effective in dividing the voters this time, there is no guarantee what will happen
in the future.  If the present system remains in place, the elements who have previously
spewed racial bigotry into the political arena may well be successful in using tactics of
intimidation and retribution to further polarize the people of Port Chester and prevent
Hispanic residents from meaningfully participating in the democratic process.  17
CONCLUSION
 In light of the foregoing proof and the evidence adduced at the preliminary
hearing, the Court should issue a permanent injunction enjoining the village from
holding elections under the at-large system.
Dated:  Bronx,  New York
  July 9, 2007
              Respectfully submitted      
      Patsy D. Gouldborne & Associates, P.C.
      Patsy D. Gouldborne
      Richard St. Paul  (RS6388)
      959 East 233
rd
 Street
Bronx, New York 10466
(718) 515-7500
By: _____________________
       Richard St. Paul (RS6388)
            
Randolph McLaughlin
       RMM2690
       78 North Broadway
       White Plains, N.Y. 10603
       914-422-4340
       By:  ____________________________
               Randolph McLaughlin (RMM2690)
    
       Debra S. Cohen
       DSC6430
       470 Mamaroneck Ave.
              Suite 400        
       White Plains, N.Y.  10605
       914-478-1623
       By:  _______________________
               Debra S. Cohen (DSC6430)
       Counsel for Plaintiff Cesar Ruiz