OPINION AND ORDER Defendant, William Scott, moves for an order dismissing the indictment on the ground that it violates his right to a representative jury under the Fifth and Sixth Amendments to the Constitution, and the Jury Selection and Service Act of 1968, 28 U.S.C. §1861 et seq. (the “JSSA”). Def. Mot., ECF No. 17; Def. Mem. at 1, ECF No. 19. For the reasons stated below, the indictment is DISMISSED without prejudice. BACKGROUND I. Southern District of New York Jury Selection Procedure The Southern District of New York (the “Southern District”) embraces Bronx, Dutchess, New York, Orange, Putnam, Rockland, Sullivan, and Westchester Counties. 28 U.S.C. §112(b). The court sits in Manhattan, White Plains, and Poughkeepsie. Id.; About the District, U.S. District Court: Southern District of New York, https://www.nysd.uscourts.gov/about (last visited June 28, 2021). Grand juries are convened and jury trials take place in the courthouses located in Manhattan and White Plains. The Southern District creates a separate jury “wheel” for each of its two divisions pursuant to the Amended Plan for the Random Selection of Grand and Petit Jurors in the United States District Court for the Southern District of New York (Feb. 13, 2009) (the “Jury Plan”), https://nysd.uscourts.gov/sites/default/files/pdf/juryplan_feb_2009.pdf, which was drafted according to the JSSA. Under this plan, jury venires are constructed as follows. First, the Clerk of Court or a deputy (the “Clerk”) compiles a roster of all individuals whose names appear on the voter registration list of each relevant county. Jury Plan §III.A. From this roster, a number of people — whatever is “deemed sufficient for a four-year period” — is chosen at random. Id. The selected names are placed on “[m]aster [w]heel[s],” id., which are refilled every four years. Id. §III.B. Each county must be proportionally represented on the master wheels. Id. §III.A. When necessary, the Clerk chooses names randomly from the master wheel, and mails those individuals a questionnaire regarding their eligibility and availability for jury service (the “Eligibility Questionnaires”). Id. §III.D. When the Eligibility Questionnaires are returned, those persons deemed eligible from their responses are placed on a “qualified wheel.” Id. Petit and grand jury venires are then constituted from a random selection of those on the qualified wheel. Id. §III.F. The Jury Plan provides for two separate master wheels. Names are drawn from Bronx, New York, Putnam, Rockland, and Westchester Counties (the “Manhattan Division”) to create a master wheel for the Manhattan courthouses. Id. §III.C. Names are drawn from Dutchess, Orange, Putnam, Rockland, Sullivan, and Westchester Counties (the “White Plains Division”) to create a master wheel for the White Plains courthouse. Id. Therefore, Putnam, Rockland, and Westchester Counties (the “Overlapping Counties”) are included in both divisions. Each division constructs its own qualified wheel from its master wheel. Id. §IV.B. In practice, the White Plains Division’s jury selection process deviates from the Jury Plan in several respects. First, the White Plains Division does not include inactive voters on the voter registration lists of five counties: Orange, Putnam, Rockland, Sullivan, and Westchester. Martin Aff. 24, ECF Nos. 20-21. Thus, the names of those inactive voters do not appear on the lists the Clerk draws from to create the White Plains Division master wheel (the “Inactive Voter Exclusion”). Id. However, Dutchess County inactive voters are included on that county’s list. Id. Inactive voters are registered voters who have been flagged, by proxy identification methods, as having moved from their voting address, such as when a county’s board of elections sends mail to a voter that is then returned as undeliverable, or the Department of Motor Vehicles so informs the board. See Common Cause/New York v. Brehm, 432 F. Supp. 3d 285, 290 (S.D.N.Y. 2020). When a voter is marked as inactive, the county’s board of elections mails an address confirmation request to the voter. Id. To be reinstated, a voter can either reply to the confirmation notice or cast a valid affidavit ballot in a federal election. Id. at 291. A failure to vote for four years results in the state cancelling the voter registration. Id. In an unrelated case, another court in this district found that tens of thousands of voters in New York state were incorrectly marked as inactive. Id. at 293-98. Second, the number of individuals selected from the Overlapping Counties for each division’s master wheel is prorated, but in the White Plains Division, this method of proration causes fewer individuals to be chosen from the Overlapping Counties.1 Martin Aff.
34-35; Gov’t Opp’n at 27-28, ECF No. 28; Siskin Rep. 13, ECF No. 28-1. Specifically, although one out of three voters from Dutchess, Orange, and Sullivan Counties is chosen for the master wheel, only one out of 4.5 voters from the Overlapping Counties is picked (the “Disproportionate Proration”). Martin Aff. 37. Third, due to a technical error, the zip codes of some voters from Dutchess, Orange, Putnam, and Sullivan Counties who use a mailing address different from their voting address are not listed on the master wheel. Id.
