The opinion of the court was delivered by: MOORE
This proceeding was commenced on July 27, 1962. After hearing argument on September 30, 1963, a judgment was entered on March 3, 1965 wherein, although the injunction sought in the complaint was denied, the denial was "without prejudice to renewal in the absence, within a reasonable time, of the political action afforded government bodies to be taken as indicated in the Court's decision herein." Bianchi et al. v. Griffing et al., D.C., 238 F. Supp. 997; appeal dism. 382 U.S. 15, 86 S. Ct. 52, 15 L. Ed. 2d 11 (1965).
Gross inequality of individual voter representation amongst the ten towns of the County scarcely can be disputed. Attempting to follow the precepts of the Supreme Court as they relate to constitutional equal protection of the laws with respect to the voting privilege of the individual citizen, the State courts in many of the counties of New York State have directed that such inequalities be remedied and have entered judgments hopefully designed for this purpose.* Although the State court in each malapportioned county would seem to have been better able, because of its more intimate knowledge of the local conditions existing therein, to pass upon the particular relief required to remedy any malapportionment situation, nevertheless the constitutional question is properly in the federal court and jurisdiction cannot be sloughed off.
Since "[apportionment] is primarily a legislative rather than a judicial function," Graham v. Board of Supervisors, Erie County, 49 Misc.2d 459, 267 N.Y.S.2d 383, 394, this court had hoped that some definitive action would be taken by the Board of Supervisors to have the Board more equally representative of the voters of the county than is true at the present time. No such action, however, has been taken and plaintiffs, acting under the privilege given to them, in December 1965 renewed their application for relief.
A Committee (25 in number) on Re-Apportionment for the County of Suffolk was appointed by the Board. At its first meeting on December 15, 1965 the Commissioner of the New York State Office of Local Government, John J. Burns, presented his views and an outline of a proposed reapportionment plan which maintained the towns as units having one Supervisor each except that one Supervisor was to be added for each 100,000 of population or fraction thereof for towns of over 100,000 population. Weighted voting on the basis of one vote for each 10,000 of population was to supply the equal protection element. Counsel Milton Alpert referred to instances where the courts themselves had imposed temporary reapportionment.
A second meeting of the Committee was held on January 4, 1966 at which various members offered suggestions as to a legislative body for the County to be elected at large, elected from assembly districts, elected from supervisor districts to be created, or elected from units of population. Arguments for and against weighted voting were advanced.
At subsequent meetings held on February 2, 1966, March 2, 1966, and March 16, 1966, other ideas as to plans were presented and discussed. A vote taken at the March 30, 1966 meeting showed a wide range of views as to the basic units for reapportionment and the weighting of votes.
The meeting of May 4, 1966 voted to submit four plans to the Board. In its report dated May 9, 1966, the Committee presented to the Board four recommended plans: (1) Burns-Klein (Weighted Vote); (2) Lazer Plan "A" (Districting); (3) Albertson (At-Large); and (4) Lundberg Plan "A" (Miscellaneous). At its meeting held on May 31, 1966 two of the four plans were preferred but the Board was unable to express a preference between these two. A local law (Local Law Intro. No. 1 - 1966, Suffolk County, New York) was introduced at a special meeting of the Board on May 31, 1966; the County Attorney is, however, unable to state that the Local Law is likely to be adopted.
The plans for which the County Board indicated a preference were the Albertson and the Klein (or Klein-Burns) plan. The Albertson plan would provide ten supervisors as at present, one from each town. The county supervisor could also hold the office of town supervisor. However, all county supervisors would be elected by county-wide balloting - the voter in Huntington (and every other town) voting for a slate of ten supervisors, one from each town. Each candidate running county-wide for county supervisor would also be permitted to run simultaneously in his own town for the office of Town Supervisor. The Klein plan would provide for continuing the ten town supervisors as members of the County Board of Supervisors and would accord each of them one vote for each ten thousand persons in his town; towns having over 100,000 of population would elect a second "county" supervisor, and towns having over two hundred thousand of population would elect a third supervisor. No town would have less than one vote, no supervisor more than ten votes; supervisors from the same town would share the votes equally but odd votes would go to the town supervisor or, if there were three supervisors and two "odd" votes, then to the town supervisor and the "county" supervisor who polled the larger number of votes.
The third plan was the Lazer plan. It would provide twenty county supervisors elected in districts varying in 1960 size between 30,861 and 35,925. The districts would be made up from existing election districts and would cut across town lines. Shelter Island, Southold and Riverhead would share one supervisor and Southampton and Easthampton would share one supervisor.
The fourth plan was the Lundberg Plan A. It would continue the ten town supervisors and each would have one vote at County meetings. In addition, ten "county coordinators" in addition to a county executive would be elected at large in the county. The County coordinators would do all the legislative committee work and each would have a single vote in county meetings, the County Executive continuing, as now, to have a tie-breaking vote. The theory of Plan A is that no combination of supervisors' votes could prevail over the votes of county-wide representatives, and, presumptively, the large-town votes would be reinforced by large-town influence in the electoral selection of the county coordinators.
A Lundberg Plan B would have retained a county board of ten but would elect the members at large; the County Executive's tie-breaking vote and veto would continue as in the present charter. Membership on the county board would be made incompatible with holding town office.
Local Law Intro. No. 1 would continue the town supervisors as the membership of the county board and give each a vote equal to his town's census population divided by 10,000 except that no town supervisor should have less than one vote nor more than half the total votes of the board. Each supervisor would have one vote on selection of a presiding officer, presence of a quorum, rules of procedure and their amendment or repeal, and adjournment. The tie-breaking vote of the County Executive would be continued.
The Albertson plan would appear not to rectify but to perpetuate the malapportionment that now exists. The Klein plan, while it would add certain "county" supervisors, in effect, gives to the supervisors, town and county, ...