The opinion of the court was delivered by: MOORE
Plaintiffs, David I. Wells and Donald S. Harrington, individually and as Acting Chairmen of the State Committee of the Liberal Party of the State of New York, bring this action against Nelson A. Rockefeller, as Governor of the State of New York, the Attorney-General, the Secretary of State, the Lieutenant Governor and Presiding Officer of the Senate, and the Speaker and Presiding Officer of the Assembly, and pray for judgment:
(1) that Article VII, Section 111, Chapter 980 of the Laws of 1961 (New York) is void and invalid as contrary to Article I, Section 2 of the United States Constitution;
(2) that alleged existing Congressional malapportionment deprives plaintiffs (a) of their rights without due process of law, and (b) of equal protection of the laws as guaranteed by the Fourteenth Amendment of the United States;
(3) that the Governor be restrained from certifying votes for the election of representatives from the Congressional Districts established under Chapter 980;
(4) that the Attorney-General, and the Secretary of State be restrained from enforcing various election procedures pursuant to said Chapter; and
(5) that the Presiding Officer of the Senate and the Speaker of the Assembly be directed to take such action as may be necessary to comply with the United States Constitution.
Jurisdiction is asserted under the Fourteenth Amendment of the United States Constitution and under 42 U.S.C. §§ 1983, 1988 and 28 U.S.C. § 1343(3). Declaratory relief is sought under 28 U.S.C. §§ 2201, 2202 and 2281 et seq.
Upon plaintiffs' motion, a three-judge court was convened to hear the issues presented. Before this court, plaintiffs now seek a summary judgment declaring Article VII, Section 111, Chapter 980 unconstitutional. Also before us is defendants' motion to dismiss the complaint.
The Statute Attacked as Invalid
Prior to the enactment of Chapter 980 (L.1961), Congress, acting upon the 1960 decennial census figures, reduced the number of New York's congressional districts from 43 to 41. Chapter 980 was enacted to establish the boundary lines of these 41 districts. At the time during which it was engaged in the task of reapportionment, the Joint Legislative Committee on Reapportionment did not have the advantage of the various rather recent decisions of the Supreme Court on the subject. Little purpose, therefore, will be served by commenting at this date on the Committee's arithmetic and geographic thinking in endeavoring to achieve such reapportionment because the ten (10%), fifteen (15%) (this figure the Committee selected as a maximum) and twenty (20%) percent variations considered by the Committee are now quite outmoded. Basically, however, the Committee did divide the population of the State into 41 parts which produced a hypothetical population figure of 409,326 per part. It then separated New York City with its population of 7,781,984 from the rest of the State. Assigning 19 districts to New York City, an average population per district of 409,578 resulted. The average for the other 22 districts was 409,109 per district. Thus, the equality of population in these areas, New York City and upstate on this grouping basis (19 and 22) is truly remarkable, and should satisfy the most population-minded court. However, in arriving at boundary lines for these 41 districts, the Legislature soon discovered that the problem was more difficult than one of long division on a classroom blackboard. Before legislative agreement was reached, the districts assumed designs of which a jigsaw puzzle artist would have been proud and which had very substantial population disparities. These disparities plaintiffs now attack and, in support of their position, cite many recent Supreme Court decisions in addition to Wesberry v. Sanders, 376 U.S. 1, 84 S. Ct. 526, 11 L. Ed. 2d 481 (1964), as establishing population equality as the only guide in reapportionment.
The defendants (collectively referred to as the State) claim that the constitutionality of Chapter 980 has been sustained twice by three-judge courts, and that dismissals of the complaints in Wright v. Rockefeller, 211 F. Supp. 460 (S.D.N.Y.1962) and in Honeywood v. Rockefeller, 214 F. Supp. 897 (E.D.N.Y.1963) have been affirmed by the Supreme Court, Wright v. Rockefeller, 376 U.S. 52, 84 S. Ct. 603, 11 L. Ed. 2d 512, rehearing denied, 376 U.S. 959, 84 S. Ct. 964, 11 L. Ed. 2d 977 (1964), and 376 U.S. 222, 84 S. Ct. 708, 11 L. Ed. 2d 656 (1964), respectively.
To test the validity of the State's claim, the issues presented in these cases must be analyzed. In Wright, supra, although population inequalities among the 17th, 18th, 19th and 20th Congressional districts were before the court, the plaintiffs there stressed an alleged segregation of eligible voters by race and place of origin and charged that the 17th district was contrived to exclude non-whites and Puerto Ricans, whereas the 18th, 19th and 20th districts were drawn so as to include large numbers of this group. The basis for the majority decision was a failure of proof that the Legislature had fixed the boundaries of these districts along racial lines. The grounds for affirmance by the Supreme Court make such failure of proof quite explicit. Mr. Justice Black specifically stated that there was no showing "that the challenged part of the New York Act was the product of a state contrivance to segregate on the basis of race or place of origin." Conversely, the Justice said that the court was not passing on the question "whether the state apportionment is constitutionally invalid because it may fail in its objective to create districts based as nearly as practicable on equal population," referring to Wesberry v. Sanders, decided at the same time. 376 U.S. at 58, 84 S. Ct. at 606.
In Honeywood, supra, the burden of the complaint was the alleged purposeful exclusion, by changing the old Fourth Congressional district into the new Sixth, of 75-80% of the Negro population residing in the old Fourth. Here again, the dismissal of the complaint was based primarily on failure of proof of any ...