New York Law School’s Digital Commons@NYLS

Wice, Jeffrey M.

DigitalCommons@NYLS 
Redistricting Roundtable Updates NY Census and Redistricting Institute 
3-25-2024 
March 25 Roundtable Update 
Jeffrey M. Wice 
Follow this and additional works at: https://digitalcommons.nyls.edu/redistricting_roundtable_updates 
 
 
 
 
 
    N.Y. ELECTIONS, CENSUS & REDISTRICTING UPDATE 
 
REDISTRICTING LITIGATION 
 
NYC Council Challenge: Desis Rising v. NYC Districting 
Commission 
 
On March 15, in the Appellate Division, First Department, the city’s 
Corporation Counsel submitted the city’s response brief arguing that the trial 
court’s dismissal of the case challenging the city council map should be 
affirmed. The city’s central arguments for dismissal are that (1) the petitioners 
waited too long to bring this challenge and to appeal (laches) and (2) the 
petition lacks merit as the commission rationally approved the final 
redistricting plan based on a reasonable view of the facts and their contention 
that the city charter does not require maximizing minority populations in a 
single district at all costs. 
 
On their laches argument, the city contends that granting the petition when it 
was filed would have upended the 2023 election calendar, and granting it at 
this point, now that the commission’s term has expired, would create greater 
issues as there is no process in the charter for redrawing district lines at this 
point. 
 
On the merits, the city asserts that the final plan complied with the charter’s 
requirement that the commission ensure fair and effective representation of 
Asian voters “to the maximum extent practicable.” Further, the city argues that 
the petitioners’ preferred “Unity Map” was actually insufficient at achieving 
their goals of bolstering minority representation. The city also emphasizes the 
commission’s duty to apply the redistricting criteria in the priority order set 
forth by the charter and that the commission has discretion to determine what 
is practicable when applying the criteria.  
  
VOTING RIGHTS 
  
Cheektowaga Town Board: A lawsuit has been filed challenging the at-large 
election system used to elect the Cheektowaga Town Board. In the 
November 2023 election for the Cheektowaga Town Board, the plaintiff was 
the candidate of choice for the minority population living in the northwest 
portion of Cheektowaga. The plaintiff did not win a seat on the Town Board 
because of majority-white voting bloc outside of the northwest section.  
  
Determinations by the defendant’s experts established that there is racially 
polarized voting. As a result, black residents of northwestern Cheektowaga 
 
 
are unable to elect candidates of their choice and the New York Voting Rights 
Act, which prohibits voter dilution, has allegedly been violated.  
  
To remedy the alleged violation, the current Town Board voted on a resolution 
to hold a town-wide referendum during the 2024 elections on whether to 
adopt single-member districts or wards to elect town board members. The 
plaintiff argues that a referendum alone is insufficient because NYVRA 
violations must be resolved by laws enacted by local government or by a 
proposal approved by a court or the New York Attorney General. The plaintiff 
has asked the court to order Cheektowaga to enact a map of 6 single-
member districts for future town board elections.  
  
NYC Non-Citizen Voting: The plaintiffs of Fossella v. Adams have  appealed 
an  appellate court  decision to the New York Court of Appeals. The appellate 
court ruled in February that a New York City law, which would have allowed 
certain non-citizens to vote in local elections, violated the New York State 
Constitution and Municipal Home Law. The law would have authorized more 
than 800,000 green card holders and other residents with federal work 
authorization to vote in local elections. The judge wrote that if noncitizens 
were allowed to vote, it stands to reason they could also run for mayor.  
  
COMING SOON 
  
Redistricting Reform: New York Law School will be convening a conference 
on New York redistricting reform in the late Spring. Discussion will focus on 
how to reform New York’s redistricting process through a new constitutional 
amendment. Further information will be included in upcoming weekly 
newsletters. In the meantime, please share your idea on how to improve the 
process via a return email to this address. 
 
 
 
 
 
 
 
 
 
 


English

March 25 Roundtable Update

DigitalCommons@NYLS 
Redistricting Roundtable Updates NY Census and Redistricting Institute 
4-15-2024 
April 15 Roundtable Update 
Jeffrey M. Wice 
Follow this and additional works at: https://digitalcommons.nyls.edu/redistricting_roundtable_updates 
 
 
 
 
 
N.Y. ELECTIONS, CENSUS & REDISTRICTING UPDATE 
 
N.Y. VOTING RIGHTS ACT 
 
Two Counties Respond to Attorney General’s Guidance on 
State Voting Rights Act Preclearance 
 
On December 19, 2023, the Office of the New York Attorney General (OAG) 
published guidance on the NYVRA’s preclearance provisions. In the 
guidance, the OAG preliminarily identified the jurisdictions that will be subject 
to preclearance (covered entities) beginning September 22, 2024. The OAG 
accepted written comments on the guidance until February 20, 2024. Two 
comments have been published, one objecting to Orange County’s 
preliminary designation as a covered entity and the other requesting further 
investigation into whether Dutchess County qualifies for preclearance 
coverage. 
 
Orange County: County Attorney Richard B. Golden submitted a letter 
objecting to Orange County’s preliminary designation as a covered entity. 
One of the ways covered entities can be identified under the NYVRA is if the 
jurisdiction has been the subject of a court order due to a violation of the 
Federal VRA, the 14th Amendment, and other laws. Golden disputes the 
OAG’s identification of Orange County based on the case Molina v. County of 
Orange. Golden argues that this case does not constitute a valid basis to 
designate the county as a covered entity as that case did not result in a 
finding of a violation of the Federal VRA or 14th Amendment or any other 
relevant statutes or amendment. The full letter can be read here. 
 
Dutchess County: Kate Magill, Director of Litigation and Voter Protection at 
the Democratic Congressional Campaign Committee (DCCC) submitted a 
letter requesting that the OAG conduct additional investigation regarding 
Dutchess County, “where the Board of Elections has repeatedly attempted to 
disenfranchise eligible voters in violation of the law.” Magill notes three 
instances in recent years where Dutchess County BOE has violated New 
York and federal law, including the refusal to set up polling locations on the 
Vassar and Bard College campuses and the refusal to accept student voter 
registration applications that did not include dorm information. The full letter 
can be read here. 
 
 
 
 
 
LITIGATION 
 
NYC Council Challenge: Desis Rising v. NYC Districting 
Commission – Desis Rising Answers NYC Defenses 
 
On April 5, in the Appellate Division, First Department, Desis Rising filed a 
reply brief refuting the Commission’s arguments and asking the court to either 
invalidate the map and provide instructions to redraw the city council district 
lines in compliance with the NYC Charter or reverse the trial court’s dismissal 
and send the case back to the trial court for further proceedings. 
 
The crux of Desis Rising’s argument is that the criterion set forth in Section 
52(1)(b) of the NYC Charter, one of several prioritized districting 
requirements, (districting plans must ensure the fair and effective 
representation of racial and language minority groups in NYC which are 
protected by the federal VRA) is “mandatory, not discretionary.” Desis Rising 
asserts that this provision was intended to require the districting commission 
to “ensure that minority communities have a voice in government.” Desis 
Rising also contends that 52(1)(b) requires the commission to refrain from 
breaking up minority communities so that they can elect their candidates of 
choice AND so that council representatives cannot ignore them. Therefore, 
they argue, “it was patently unreasonable for the Commission to brush aside 
the [Richmond Hill / South Ozone Park] community as undeserving of the ‘fair 
and effective representation’ that Section 52(1) requires the Commission to 
prioritize.” 
 
In response to the trial court’s suggestion that courts should not question the 
commission’s determination that it ensured opportunities for racial and 
language minority groups to participate in the political process, Desis Rising 
argues that this interpretation, which the Commission adopts as well, turns 
“Section 52(1)(b) into a bare procedural requirement with no substantive 
force.” Desis also argues that this reasoning fails because the Commission 
refused to provide any explanation regarding its decision to ignore the 
Richmond Hill / South Ozone Park Asian community, thereby removing the 
judiciary’s ability to analyze the Commission’s reasoning as required by 
administrative law. 
 
Desis Rising also refutes the argument that the court should affirm the 
dismissal based on laches. Desis argues that the Commission’s claim of 
prejudice as to the 2023 City Council election is invalid as the election has 
already occurred. Desis also refutes the Commission’s claim of prejudice 
based on the fact that the Commission’s term has expired because, among 
other reasons, there are a number of procedural channels the court could use 
to order a new map which would not be “disruptive or extraordinary,” including 
reconvening the Commission. 
  
 
 
The appeal will be heard by the court on May 2nd. 
  
CENSUS 
  
New York’s Foreign-Born Population 
  
For more than 20 years, New York has maintained a stable native-born 
population. According to census data collected in 2022, 56% of New York 
adult residents were born in the state, decreasing by only 0.4% since 2000. 
Over the same period, the internationally born population in New York 
increased from 25 to 28%.  
  
As of 2022, immigrants made up more than one-fifth of the population in only 
4 out of 50 states: California, Florida, New Jersey, and New York. Between 
2010 and 2022, New York’s foreign-born population dropped from second to 
fourth largest in the country. About 4.5 million foreign-born individuals live in 
New York, accounting for roughly one-third of the population—a number that 
has remained consistent for the past 2 decades.  
  
The remaining 15% of New Yorkers are residents who were born in another 
state. The most popular regions for residents to be born are the Northeast 
(5%) and the South (4%). New Jersey is the most common birthplace of the 
49 other states, with roughly 1.7% of New Yorkers being born there. 
California and Pennsylvania are the next most popular states, with about 1% 
of New York’s population being born in each state.  
 
AROUND THE NATION 
  
Louisiana: A federal trial in Louisiana began last week and will determine the 
future of the state’s new congressional map. In January, the Louisiana 
legislature enacted a new congressional map after a federal court ruled that 
the previous map violated Section 2 of the Voting Rights Act. The court 
ordered Louisiana to draw a new map that included two majority-Black 
districts.  
  
After the legislature passed a new map, a group of voters who identified 
themselves as “non-African American” filed a lawsuit. The plaintiffs allege that 
the new maps are a racial gerrymander and violate the 14th and 15th 
Amendments. Advocates are calling this lawsuit a “collateral attack” on the 
success of Black voters for achieving enforcement of Section 2 of the Voting 
Rights Act.  
  
Nevada: The Nevada Supreme Court heard arguments over an effort to 
invalidate two proposed ballot questions seeking to create an independent 
redistricting commission (IRC). The arguments were in response to an appeal 
of a February ruling that the petitions filed by Fair Maps Nevada would violate 
 
 
the Nevada Constitution by creating an unfunded mandate. The issue is 
whether the change could create additional expenses that the ballot measure 
is not yet prepared to pay.  
  
The two submitted petitions from Fairs Maps are identical except for the 
timelines. One petition calls for an IRC to redraw the state congressional and 
legislative maps in 2027 at the earliest. The other petition calls for the next 
redistricting cycle to be in 2031. The Supreme Court is expected to issue a 
decision in the next few months. This is Fair Map Nevada’s third attempt to 
propose a redistricting commission ballot measure, doing so in 2020 and 
2022. 


April 15 Roundtable Update

Roth, Renee R.

LaPiana, William P.

DigitalCommons@NYLS 
Other Publications Faculty Scholarship 
2-26-2024 
The Future of Wills in New York 
Renee R. Roth 
William P. LaPiana 
Follow this and additional works at: https://digitalcommons.nyls.edu/fac_other_pubs 
1/7
By Benjamin Daniels, Jennifer Driscoll and Sabrina Galli
The Future of Wills in New York
www-law-com.nyls.idm.oclc.org/newyorklawjournal/2024/02/26/the-future-of-wills-in-new-york
ANALYSIS
It is well established law in New York that to be valid, a
will, with minor exceptions, must be in writing. It
appears this is about to change. A bill has been
introduced in the New York Assembly, which adds a
new Part 6 authorizing “electronic wills” to Article 3 of
the Estates, Powers and Trusts Law.
February 26, 2024 at 09:37 AM
11 minute read
By Renee R. Roth and William P. LaPiana | February 26, 2024 at 09:37 AM
It is well established law in New York, even going back to our colonial days, that to be valid
in our state, a will, with minor exceptions, must be in writing. Indeed, before it is admitted to
probate, a will traditionally has been described as a “paper writing.” Attorneys who practice
in this area have been confident in their knowledge surrounding this aspect of wills.
It appears this is about to change. A bill has been introduced in the New York Assembly (A.
7702), which adds a new Part 6 authorizing “electronic wills” to Article 3 of the Estates,
Powers and Trusts Law.
Before we discuss the proposed statute, it is noted that the bill is an enactment of the
Uniform Electronic Wills Act approved by the Uniform Law Commission in 2019 and
enacted in six states (Colorado, Idaho, Minnesota, North Dakota, Utah and Washington),
the District of Columbia and the Virgin Islands. Six other states (Arizona, Florida, Illinois,
Indiana, Maryland and Nevada) have enacted non-uniform legislation authorizing electronic
wills. All these statutes are still so recently enacted that there appear to be no reported
cases dealing with their provisions.
What is an Electronic Will?
Before we go any further, we remind the reader of the old warning “don’t blame the
messenger.” The Uniform Act §2(3) and the New York Bill 3-6.2(c) define an electronic will
as a will “executed electronically in accord with the execution provisions” of the statute.
2/7
Those provisions require the will to be signed by the testator (or in the testator’s name by
another person who acts at the testator’s direction and in the testator’s physical presence)
and by at least two other persons within a reasonable time of witnessing the testator signing
the will or the testator’s acknowledgement of the signing or of the will. So what’s so
electronic about that?
First, the will must be a “record” that is “readable as text” at the time of signing. A record, in
turn, is defined as “information that is inscribed on a tangible medium or that is stored in an
electronic or other medium and is retrievable in perceivable form.”
Second, “sign” is defined as executing or adopting a “tangible symbol” that can be a written
signature, or affixing or logically associating with the record “an electronic symbol or
process.” It is observed that this definition is the same as that of “electronic signature” in
State Technology Law §302(3).
Although this would appear to be helpful, Section 307 of such law states that the electronic
signature rules do not apply to wills and various other documents disposing of an
individual’s person or property upon death or loss of capacity. The federal E-Sign Act
includes the same definition, 15 U.S.C. §7006(5), and exclusions, 15 U.S.C. §7003(a)(1).
So what makes an electronic will electronic is its existence only as a digital file of some sort
rather than as a hardcopy on paper and its being signed through the use of some sort of
electronic process, whether by using a stylus on a screen, typing one’s name on a signature
line, or using one of the commercial e-sign services.
Provisions of the Bill
With that introduction, we turn to some provisions of the bill. The bill, like the Uniform Act,
provides that an electronic will may be “simultaneously executed, attested, and made self-
proving” by acknowledgment of the testator and affidavits of the witnesses. The bill includes
forms for both an attestation clause and a self-proving affidavit, 3-6.8. This would be helpful
except that the self-proving affidavit differs substantially from the form based on the
requirements of SCPA 1406 and the official form of the witness affidavit executed after the
testator’s death. It makes no reference to the testator’s literacy in English nor to the
supervision of the execution by an attorney. The latter requirement is important because of
the well-established presumption in New York of due execution when the ceremony is
supervised by an attorney. It is unclear whether the attestation clause in the statute is a
substitute for, or in addition to, the traditional attestation clause used in paper wills.
It is noted that the final paragraph of the section provides that signatures, whether physical
or electronic, on an affidavit that it physically attached to or “logically associated with” an
electronic will are deemed signatures on the will. The comment to the Uniform Act provision
3/7
makes it clear that this provision refers to the signature of the testator on the attestation
clause which is included as part of the statutory form.
A striking departure from existing New York law is another provision which substitutes for
the two or more witnesses an acknowledgment by the testator before a notary public.
Presumably the use of the statutory form attestation clause and the acknowledgement of
the testator’s signature before a notary will be enough.
This is only the beginning. There is even more. One of the most notorious provisions of the
Uniform Probate Code is the “harmless error rule” (§2-503), which deems as being a
properly executed any “document or writing on a document” if it can be established by clear
and convincing evidence that the decedent intended the document to be the decedent’s will,
a partial or complete revocation of a will, an addition to or alternation of a will or a document
reviving in whole or in part a previously reviled will.
The Uniform Act includes the harmless error rule and offers two alternatives: a provision
that limits the rule to “a record readable as a text” not executed in compliance the
requirements of the Act and for those jurisdictions that already have a harmless error rule
(not New York), a provision that states the rule applies to “a will executed electronically.”
The proposed Bill 3-6.6 enacts the above text and makes it apply to any document not
executed in compliance with EPTL 3-2.1. This provision may not apply to electronic wills,
which in the bill, as in the act, are referred to as “a record readable as a text” rather than a
“document,” but certainly makes the harmless error rule part of New York law applicable to
any “document.” This is a radical change and surely requires further discussion beyond its
application to electronic wills.
What about the requirement of “in the presence of the testator”?
The Uniform Act does not take a position on remote signing and notarization but includes
an optional definition of “electronic presence” which means “the relationship of two of more
individuals in different locations communicating in real time to the same extent as if the
individuals were physically present in the same location.” (§2(2)).
The Uniform Act then has optional provisions in the execution rules to allow the testator,
witnesses and any notary involved to be in each other’s electronic presence. The bill adopts
the electronic presence provisions so that an electronic will can be properly executed, and
the necessary acknowledgements taken with all parties present to each other only
electronically.
The bill provides that, notwithstanding the remote notarization rules of Executive Law 135-c
(a permanent enactment of a pandemic accommodation), “electronic wills may be notarized
by notary publics that are not physically present in the state of New York.”
4/7
The extent of this exception is unclear. Its inclusion in the execution section would seem to
indicate that it is limited to notarization of the testator’s signature as an alternative to
witnessing that signature and would therefore not apply to notarization of the attestation and
the self-proving affidavit.
The final major provision of the bill governs revocation of an electronic will. First, an
electronic will may revoke all or part of a previous will. There is no requirement that the
previous will be an electronic will. A subsequent will (electronic or otherwise) may revoke
“all or part of an electronic will” either expressly or by inconsistency.
An electronic will may also be revoked in whole or in part by a physical act if it is shown by
a preponderance of the evidence that the testator, with the intent to revoke in whole or in
part, performed the act or directed another to perform the act who did so in the testator’s
physical presence.
What sort of physical act can be performed on an electronic will? The comment to Uniform
Act §7 includes deletion of the file containing the will, physical destruction of the flash drive
that holds the file, writing “revoked” on a printed copy of the will and typing “revoked” on an
electronic copy, that is, so long as the file is not locked.
The same comment also states that the traditional rule that makes the physical revocation
of one counterpart a revocation of all applies to electronic wills, as does the presumption of
destruction with the intent to revoke if a will that was in the possession of the testator
cannot be found after the testator’s death.
The comment does not discuss the questions that can arise when trying to determine if an
electronic will was in the testator’s possession. Presumably, if the file is on the testator’s
computer or other device or stored in the cloud in the testator’s account it is in the testator’s
possession. If the file has been deleted, is that enough to raise the presumption assuming
only the testator has access to the device or account?
It must also be noted that partial revocation by physical act is not possible under EPTL 3-
4.1. The bill, therefore, creates a different rule for electronic wills. There would seem to be
no principled reason for the difference. For example, testator properly executes a hardcopy
Will that makes a general disposition of X dollars to Y. If the testator crosses out that
provision nothing has changed. If the will were electronic and the testator deleted or struck
through the provision, it would be revoked. The rules should be consistent.
What About Wills Executed in Another Jurisdiction?
The bill includes choice of law rules as follows: An electronic will is valid if it is executed in
compliance with the law of the jurisdiction (1) where the testator is physically located when
the will is signed, (2) where the testator is domiciled or resides when the will is signed or (3)
5/7
resides when the will is signed or at death. This provision is different from our current choice
of law rule contained in EPTL 3-5.1(c), which does not include validity under the law of the
jurisdiction where the testator resides either at the time of execution or at the time of death.
The Bill includes a provision allowing any individual to create a certified paper copy of an
electronic Will by affirming under penalty of perjury that the paper copy “is a complete, true,
and accurate copy of the electronic will.” The copy must include the self-proving affidavits.
What Does the Bill, and the Uniform Act, Not Address?
Neither has any provision describing what sort of technology can be used to create
electronic presence. The definition refers only to “electronic means” allowing
communication in “real time.”
The Uniform Act and the bill do not incorporate provisions governing remote notarization
which are found in other statutes. Nor do they have any provisions dealing with storage or
custody of electronic wills. Non-uniform statutes often include such provisions.
The Nevada statutes, for example, require that if the will is to be self-proving it must
designate a “qualified custodian” who must have custody of the will until it is offered for
probate, see, Nev. Rev. Stat. 133.086, and there are provisions governing qualification as a
qualified custodian and setting forth the qualified custodian’s duties and responsibilities,
Nev. Rev. Stat. 133.300-340. Florida has similar provisions, see Fla. Stat. §§732.523,
732.524.
It is important to observe that the bill deals only with the formalities of executing and
revoking an electronic will, the creation of what can be called “formal authenticity.” The
proposal makes no change in the law that governs “substantive authenticity,” the rules and
concepts designed to make sure the will really does embody the desires of the testator. The
laws of undue influence, insane delusion, fraud and testamentary capacity are no different
for the electronic will and neither are the rules of construction, interpretation and
reformation.
Conclusion
Assembly Bill 7702 if enacted will add New York to those jurisdictions who have adopted the
Uniform Act’s approach to legalizing electronic wills. Before that happens, however, the
effect of the bill on the law of wills in New York must be fully discussed, especially the
addition of the harmless error rule to New York law. Even if adopted, however, the bill will
effect only wills. Electronic signatures will still not be possible for lifetime trusts and other
estate planning related documents.
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Renee R. Roth is former a Surrogate, New York County and of counsel to McLaughlin &
Stern. William P. LaPiana is Dean of Faculty, Rita and Joseph Solomon Professor of Wills,
Trusts, and Estates, and Director, Estate Planning Studies, Graduate Tax Program, at New
York Law School.
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The Future of Wills in New York

February 20, 2024
Jose F. Anderson, Dean Joseph Curtis Professor of Law at the University of Baltimore School of Law, will join Kirk Burkhalter, Professor of Law and Director of the 21st Century Policing Project, for a conversation discussing Charles Hamilton Houston\u27s enduring legacy as a lawyer, educator, and civil rights activist.https://digitalcommons.nyls.edu/racial_justice_project_events_flyers/1000/thumbnail.jp

New York Law School

DigitalCommons@NYLS 
Racial Justice Project Event Posters 
2-20-2024 
Black History Month Event: Honoring Legal Icon Charles Hamilton 
Houston 
New York Law School 
Follow this and additional works at: https://digitalcommons.nyls.edu/racial_justice_project_events_flyers 
N OOL I Racial Justice Project 
BLACK HISTORY MONTH EVENT 
Charles Houston, ca. 1940. Gelatin si lver 
print. NAACP Collection. Prints and 
Photographs Division, Library of Congress 
(068.00.00) Courtesy of the NAACP 
Digital ID# cph-3c31020 
Tuesday, February 20, 2024 
12:45 p.m.-2:00 p.m. 
- New York Law School 
Room W420 
185 West Broadway 
New York, NY 10013 
RSVP: www.nyls.edu/RJPrsvp1 
Jose F. Anderson, Dean Joseph Curtis 
Professor of Law at the University of 
Baltimore School of Law, will join Kirk 
Burkhalter, Professor of Law and Director 
of the 21st Century Policing Project, for a 
conversation discussing Charles Hamilton 
Houston's enduring legacy as a lawyer, 
educator, and civil rights activist. The event 
will be moderated by John Marshall Harlan 
II Professor of Law and Director of the 
Racial Justice Project Penelope Andrews. 


Black History Month Event: Honoring Legal Icon Charles Hamilton Houston

https://digitalcommons.nyls.edu/alum_mag/1026/thumbnail.jp

Office of Marketing and Communications,

New York Law School Magazine, Vol. 41, No. 1

Perlin, Michael L.

DigitalCommons@NYLS 
Articles & Chapters Faculty Scholarship 
2024 
Foreword | The Parkland School Shooter: Culpability and FASD 
Michael L. Perlin 
Follow this and additional works at: https://digitalcommons.nyls.edu/fac_articles_chapters 
Foreword 
"Fetal alcohol syndrome" was not mentioned in a reported legal case until 1981 (In 
re Price, a child neglect case), nor was it mentioned in the legal literature until two 
years later (Weinberg, 1983). T)'pically, US courts "have been dismissive of claims 
that (fetal alcohol spectrum disorder) needs to be taken seriously in the criminal law 
process, whether on questions of capacity to stand trial, responsibility, or sentencing 
punishment" (Perlin & Cucolo, 2023, p. 611, discussing inter alia, Aoyd v. Filson, 
2020). We know individuals with fetal alcohol spectrum disorder (FASD) are at 
greater risk of ending up in the criminal courts system (Sessa et al 2022; Streissguth 
et al ., 1996), and there is no question individuals with FASD are a "potentially vul-
nerable group of offenders in the context of a criminal prosecution owing to sub-
stantial cognitive, behavioral, and social challenges commonly seen in those with 
the diagnosis" (McLachlan et al, 2014, p. 15). There is strong support to suggest 
persons with FASD may "be at increased risk for misunderstanding, misapprecia-
tion, and miscommunication across arrest and trial contexts" (McLachlan et al., 
2014, p. 20). 
In this book, the authors shine a light on the significance of FASD in the context 
of one of the most well-known of all school shooting cases, in which Nikolas Cruz 
killed 17 people and injured 17 others in Parkland, Florida. The fact that the jury did 
not sentence the defendant to death was front-page news around the world, and that 
fact already has been the subject of multiple Jaw review articles (see, e.g., Hunt, 
2023; Toledo, 2020). Yet, until now there has not been a comprehensive work that 
contextualizes the facts of the Cruz case with his specific condition in the larger 
context of FASD and similar neurodevelopmental disorders. Until this book, there 
has been no consideration of the meaning and significance of FASD similarly con-
textualized in a legal case (in this situation, a mind-numbing case). The authors here 
do this brilliantly. 
This book takes the reader from Cruz's nearly unbelievable back story (there 
may have been a case in the American system with more red flags than this, but 
likely not) to what the authors accurately characterize as a "primer" on FASO, to a 
discussion of why FASD is so often "hidden" to the outside world, to the potential 
significance of an FASD diagnosis in a capital case, and to the trial itself (focusing 
vii 
viii Foreword 
on why three jurors in Cruz's case rejected the death penalty). It shows how Cruz's 
condition should have been apparent to all "players" from his early childhood on, 
how all the cues and clues (red flags) were ignored or minimized, how virtually 
every decision that was made about his life was the wrong one, how-it seems 
inevitable in retrospect-the tragic denouement played out, and how all of this was 
placed before the jury (in spite of the best efforts of a hostile, later-censured judge 
to favor the prosecution at every step of the proceedings), leading to the remarkable 
outcome in the case. The authors underscore how multiple red flags were ignored, 
regularly and invariably, despite many signs of profound disability throughout 
Cruz's life, which were noticeable to professionals as early as his toddler years, an 
oversight the authors accurately refer to as "catastrophic." The reader is left saying 
to him/herself, "Why didn't anyone do anything earlier?!?" It is great fortune Cruz 
had such an extraordinary team of lawyers and expert witnesses working on his case. 
The authors expertly lay all this out for the reader-professional and lay reader 
alike-in ways that add to the frustration of what we know about how all of the 
significant mileposts of Cruz's life were mishandled, how treatment opportunities 
were ignored, and how the, again, tragic conclusion was virtually inevitable. My 
hope is that this book will be read by all relevant decision-makers so the chances of 
this recurring will be significantly minimized. 
Michael L. Perlin 
References 
Floyd v. Filson, 949 F.3d 1128 (9th Cir. 2020). 
Hunt, A. (2023). Declining competency: Protecting defendants with worsening mental illness on 
death row from the death penalty. Boston College Law Review, 64, 1723-1761. 
McLachlan, K., Roesch R., Viljoen, J. L., & Douglas, K. S. (2014). Evaluating the psycholegal abili-
ties of young offenders with fetal alcohol spectrum disorder. Law and Human Behavior, l 0-22. 
Perlin, M. L. & Cucolo, H. E. (2023). "Take the motherless children off the street": Fetal alcohol 
syndrome and the criminal justice system. University of Miami Law Review. 77, 561-612. 
In re Price, (1981) WL 4645, at •3 (Ohio Ct. App. Nov. 25 , 1981). 
Sessa, F., Salemo, M., Esposito, M., Di Nunno, N., Li Rosi, G., Roccuzzo, S., & Pomara,C. (2022). 
Understanding the relationship between fetal alcohol spectrum disorder (FASO) and c riminal 
justice: A systematic review, Healthcare, 10, 84-98. 
Streissguth, A. P., Barr, H. M., Kogan, J., & Bookstein, F. L. ( 1996). Final report: Understanding 
the occurrence of secondary disabilities in clients with fetal alcohol syndrome (FAS) and fetal 
alcohol effects (FAE). Seattle, WA: University of Washington Publication Services. 
Toledo, A. (2020). Shooting for change: Red flag laws. St. Thomas Journal of Complex Litigation, 
7, 13- 25. 
Weinberg, S. R. ( 1983). A maternal duty to protect fetal health? Indiana Law Journal, 58, 531-546. 


Foreword | The Parkland School Shooter: Culpability and FASD

Leonard, Arthur S.

Civil Litigation | Notes

Petrovic, Aleksandra

United States v. Dingwall

DigitalCommons@NYLS 
Redistricting Roundtable Updates NY Elections, Census, and Redistricting Institute 
11-12-2024 
November 12 Elections, Census & Redistricting Update 
Jeffrey M. Wice 
Follow this and additional works at: https://digitalcommons.nyls.edu/redistricting_roundtable_updates 
 
 
 
 
 
N.Y. ELECTIONS, CENSUS & REDISTRICTING UPDATE 
 
N.Y. VOTING RIGHTS ACT LITIGATION 
 
New York Voting Rights Act Struck Down in Clarke v. 
Newburgh (Orange County) 
 
The New York Voting Rights Act (NYVRA) was struck down in a decision from the 
Orange County Supreme Court. In January, three Black and three Hispanic residents 
of Newburgh filed this lawsuit. The residents alleged that the town’s at-large election 
system for Town Board elections has prevented Black and Hispanic residents from 
electing candidates of their choice. 
 
The lawsuit was filed under the NYVRA for a violation of § 17-206(2)(b)(i), which 
addresses instances of voter dilution. On September 25th, the defendants (the Town 
of Newburgh and the Town Board of Newburgh) filed for summary judgment.  
 
On November 7th, the court ruled that the NYVRA violated the Equal Protection 
Clause of the U.S. Constitution’s Fourteenth Amendment and granted the 
defendants’ motion. When race or national origin is the basis for unequal treatment 
by a state, the state (here, the NYVRA) must satisfy the “strict scrutiny.” In order to 
satisfy strict scrutiny, the NYVRA must be shown to serve both a “compelling state 
interest” and be “narrowly tailored.” The court ruled that the NYVRA did not satisfy 
these requirements and thus must be “struck in its entirety.” 
 
On November 8th, attorneys for the plaintiffs filed a letter with the judge to seek 
clarification on whether the decision struck down § 17-206(2)(b)(i) or the entirety of 
the NYVRA. The case only related to that subsection, but the language of the 
decision seemed to strike it in its entirety. On November 8th, the New York State 
Attorney General submitted a letter with the judge seeking to clarify the same issue. 
 
On November 11th, the plaintiffs filed a notice of appeal to the New York Appellate 
Division, Second Judicial Department. 
 
The defendants in Coads et al. v. Nassau County, NY Communities for Change v. 
Nassau County, and Serratto et al. v. Town of Mount Pleasant (Westchester County) 
have filed letters to inform the courts about this decision. The Town of Mount 
Pleasant has further requested that the court dismiss the action. 
 
ELECTIONS 
 
New York State 2024 Election Turn Out Results 
 
Nearly 8 million voters cast ballots in New York State for President. Kamala Harris 
won New York by 900k; however, President-elect Donald Trump gained ground in 
 
 
New York from 2020, with 178,000 more votes than he received against Joe Biden in 
2020.  
 
Harris won 55% of the vote to Trump’s 43%, compared to Biden’s 61% to Trump’s 
38%. Although 2024 New York State voter turnout was lower than it was in 2020, 
57.69% of eligible voters cast their ballots, in line with 2016 turnout and is still one of 
the highest in decades.  
 
The entire country moved more towards Trump in this election, including New York; 
but low turnout by Democrats is more to blame for the shift in New York. Democrats 
lost more voters than Republicans gained in 2024, giving a misleading impression 
that there was a big of a jump towards Republicans. That said, Trump made a 5% 
gain in Manhattan, 6% in Brooklyn, 11% in both the Bronx and Queens, and 8% in 
already Republican-leaning Staten Island”. Five counties from Long Island and rural 
upstate moved from Democrat to Republican in 2024: Rockland, Nassau, Clinton, 
Broome and Essex. 
 
Of the counties that flipped to red, Democrats still won congressional seats in 
Nassau County (NY-4), where Democrat Laura Gillen defeated Republican 
incumbent Anthony D’Esposito; and in Broome County (NY-19), Democrat Josh 
Riley defeated Republican incumbent Marc Molinaro. 
 
New York is still a Democratic Party stronghold, but the margins were smaller than 
they have been in decades. 
 
AROUND THE NATION 
 
LOUISIANA: The U.S. Supreme Court will hear two cases (which were consolidated 
into one) regarding Louisiana’s new congressional map.  
 
In January, a group of twelve “non-African American” voters filed a lawsuit to 
challenge the state’s new congressional map, which included two majority-Black 
districts. This map had been drawn in response to a prior lawsuit, in which federal 
courts determined that the previous map violated Section 2 of the federal Voting 
Rights Act. As a result, the legislature was ordered to draw a map with a second 
majority-Black district. 
 
This group of twelve voters alleged that the new map was unconstitutional for 
violating the 14th and 15th Amendments because race was used as a “predominant 
factor” when drawing it. A federal district court agreed and struck down the map in 
April, stating that the legislature must enact a new map by June or an interim map 
would be used instead.  
 
Louisiana stated that the congressional map needed to be finalized by mid-May. The 
state submitted an emergency appeal to the U.S. Supreme Court asking for the 
district court’s order to be temporarily paused until after the 2024 election. The Court 
agreed and allowed the congressional map with two majority-Black districts to be 
used.  
 
 
 
The Court will now hear the case and determine whether this map is constitutional. A 
decision is expected by next summer. 
 
 
The N.Y. Elections, Census & Redistricting Institute is supported by grants 
from the New York Community Trust, New York Census Equity Fund, the 
Alfred P. Sloan Foundation, and the New York City Council. This report was 
prepared by Jeff Wice, Alexis Marking, & Jennifer Hutz. 
 


November 12 Elections, Census & Redistricting Update

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