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October 14, 1965

Robert B. BLAIKIE, Plaintiff,
Robert F. WAGNER, Mayor of the City of New York, et al., Defendants. Timothy W. COSTELLO, individually and as State Chairman of the Liberal Party of New York State et al., Plaintiffs, v. Nelson A. ROCKEFELLER, as Governor of the State of New York, et al., Defendants

The opinion of the court was delivered by: MOORE

MOORE, Circuit Judge.

The Blaikie Suit

 Plaintiff, Robert B. Blaikie, as a registered voter in the 16th election district of the 7th assembly district of New York County, sues the Mayor, the President and Clerk of the City Council of New York, the ten Councilmen-at-Large for the boroughs of Queens, Brooklyn, Staten Island, Manhattan and the Bronx (the areas of the boroughs are co-terminous with the counties of Queens, Kings, Richmond, New York and the Bronx, respectively), the three Commissioners of the Board of Elections, the Secretary of State and the Attorney General of the State of New York and seeks a judgment declaring Chapter 2, section 22 of the Charter of the City of New York *fn1" unconstitutional and violative of the Fourteenth Amendment of the United States Constitution in that section 22 in providing for the election of two Councilmen-at-Large from each of the five boroughs "results in a gross malapportionment and an unfair weighting of the said City Council in favor of the lesser populated boroughs of the City of New York" (Blaikie complaint) (28 U.S.C. § 2201). In addition to such a declaration, plaintiff seeks an injunction against the city officials named and the at-large members of the Council from exercising their functions as such, against the Election Commissioners from conducting an election for Councilmen-at-Large, against the Attorney General from enforcing the provisions of the City Charter and against the Secretary of State from distributing election material relating to the City Council.

 The Costello Suit

 The plaintiffs sue both individually and as Chairmen of the Liberal Party of New York State, respectively, for the State and the five counties of the City of New York. The defendants are the Governor, the Secretary of State, the Mayor, the President of the City Council, the Comptroller, the five Borough Presidents and the three Commissioners of Election. The relief sought is a declaration (28 U.S.C. § 2201) that section 22 of the City Charter is unconstitutional because of an alleged violation of the Fourteenth Amendment of the Constitution of the United States in that each of the counties (boroughs) are entitled to elect two Councilmen-at-Large, although there is a substantial disparity in population, particularly as to Richmond County (Staten Island). Injunctive relief is sought against the Commissioners of Election, enjoining them from conducting an election for Councilmen-at-Large.

 The complaints in both suits request that a three-judge court hear and determine the cases (28 U.S.C. § 2281 et seq.). Such a court has been convened. Prior to the convening of this three-judge court, a motion on various grounds to dismiss the complaint in the Costello suit as against the Governor was granted on consent by Judge Wyatt and a motion to intervene as defendants in the Costello suit by Councilmen-at-Large Aldrich and Donnelly from the Boroughs of Manhattan and Brooklyn, respectively, was granted on consent by Judge Wyatt. In both suits motions have been made for the defendant city officials and councilmen-at-large to dismiss the complaints for failure to state a claim upon which relief can be granted (Fed.R.Civ.P. 12(b)(6)) and cross motions have been made for plaintiffs for summary judgment in their favor (Fed.R.Civ.P. 56). Oral argument in both suits was heard on June 30, 1965. The facts essential to a determination of the legal question involved are sufficiently set forth in such pleadings as have been filed. Therefore, this court will consider both cases as if motions for summary judgment had been made by the respective parties. It would be impractical to deal with each argument advanced by the respective parties in both suits, specifying the particular party sponsoring the argument. The use of the generic term, plaintiffs and defendants, however, is not intended to ascribe any such argument to any party who has not presented or adopted it.


 Defendants initially urge that the Fourteenth Amendment was not intended to apply to voting in municipal elections. They delve at length into the legislative history of the Fourteenth Amendment and conclude that cases previously decided, holding to the contrary, gave no consideration to the legislative history; hence, they cannot be regarded as controlling precedents.

 The questions of justiciability and the applicability of the so-called "one-man-one-vote" principle to legislative bodies at a lesser than State level were carefully considered in Bianchi v. Griffing, 238 F. Supp. 997 (D.C.1965), appeal dismissed 382 U.S. 15, 86 S. Ct. 52, 15 L. Ed. 2d 11 (1965). Although there were decisions of the Supreme Court which would have supported a contrary result and although persuasive arguments can be made to the effect that government at such levels should be by the people and not by the judiciary, the decisions of various courts, State and Federal, so overwhelmingly point to the principle's application at County and City levels that in Bianchi this particular Rubicon was crossed. Furthermore, logic, for whatever merit it may have in this situation, is persuasive against a re-crossing. Concededly, the City Council is the legislative body enacting laws affecting the lives of over eight million people - a population far greater than that of many States.


 The section attacked is section 22 of the New York City Charter adopted by the people of the city on November 7, 1961, under the provisions of Chapter 87 of the Laws of the State of New York for 1961. Section 21 vests the city's legislative power in the City Council. The "composition" (sec. 22) of the Council is to consist of a President and one councilman from each senate district wholly or partly within the city and two councilmen-at-large from each of the boroughs. By law (Laws of 1965, Chap. 16, Sec. 1, effective March 29, 1965), the Charter was amended to provide for the division of the city into twenty-seven councilmanic districts "in such manner that such districts shall be as nearly equal in voter population * * * or as nearly equal in number of inhabitants or in number of citizens, as is practicable, * * *." On June 1, 1965, these districts were established. *fn2" No complaint is made that these now existing districts do not afford to each voter in each district an opportunity to vote for his district's councilman or that there is district inequality. Thus, the Council consists of a president (non-voting except in case of a tie) and thirty-seven councilmen (27 from the districts, ten (2 each) from the five boroughs). A majority affirmative vote is required for the enactment of any local law or resolution (Chap. 2, Sec. 34). As a consequence, nineteen votes are necessary before any local law is imposed on the people.

 The Councilmen-at-Large

 The Charter provides that "two councilmen shall be elected at large from each of the boroughs" (Sec. 22, subd. b). Further limiting restrictions are imposed by the requirements that

 "c. No party or independent body as defined in the election law shall nominate more than one candidate for councilman to be ...

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