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March 20, 1968

David I. WELLS and Donald S. Harrington, Individually and as Acting Chairman of the State Committee of the Liberal Party of the State of New York, Plaintiffs,
Nelson A. ROCKEFELLER, as Governor of the State of New York, Louis J. Lefkowitz, as Attorney General of the State of New York, John P. Lomenzo, as Secretary of State of the State of New York; Malcolm Wilson, as Lieutenant Governor of the State of New York, and Presiding Officer of the Senate of the State of New York, and Anthony J. Travia, as Speaker and Presiding Officer of the Assembly of the State of New York, Defendants

The opinion of the court was delivered by: MOORE

MOORE, Circuit Judge.

In its order (July 26, 1967), this court directed the Legislature of the State of New York "to enact into law a congressional districting plan, effective no later than March 1, 1968, which districting plan shall be in conformity with the redistricting principles as set forth in the applicable decisions of the Supreme Court and/or such Congressional enactments as may be in force with respect thereto." In its opinion, 273 F. Supp. 984 (May 10, 1967) this court held that "[on] the basis of population inequality alone, the Act [the 1961 Act] fails to meet constitutional standards." Elaborating upon this inequality, the court noted a population in the former 12th district (Kings County) of 471,001 and in the adjoining former 15th district (also, Kings County), a population of 350,635 - a difference in contiguous districts of 29.5% from the state average. Six pairs of adjacent districts had population differences of over 100,000. These figures, of necessity, were based on the 1960 census; there will be no other statewide census until 1970.

 The Supreme Court has indicated that time is of the essence and that voters should not have to await such future legislative action as may be required after the 1970 figures shall have been announced. Accordingly, this court held that "the 1968 and 1970 (even possibly the 1972) congressional elections ought to be held in districts far more equalized than they are at present." Mindful of the practical difficulties attendant to an expeditious equalization of districts, the court, although reiterating a lack of any intention "to dictate to the Legislature the methods whereby substantial equality is to be attained" suggested that "[there] are enough changes which can be superimposed on the present districts to cure the most flagrant inequalities" and urged that "[even] if perfection cannot be achieved between now and 1973, improvement is worth the effort."

 The Legislature reconvened in January 1968 and on February 26, 1968 repealed Article Seven relating to congressional districts (held to be unconstitutional) and enacted a new Article Seven establishing new congressional districts (S.3980-A.5780). On that day, the new act became law as Chapter Eight of the Laws of 1968 upon signature by the Governor.

 This court had retained jurisdiction of the action to enable the parties to apply for further relief. Pursuant to this provision, the plaintiffs submitted their objections to the new enactment. Various individuals sought leave to intervene to express their objections. Leave was granted to all and an opportunity was given for the presentation of their views on a hearing in open court held on March 12, 1968. Plaintiffs and the intervenors have also submitted briefs and affidavits. The Attorney General representing the defendants has also presented a brief and the "Interim Report of the Joint Legislative Committee on Reapportionment". In addition, Robert Brady (Special Counsel for the Committee) and Donald Zimmerman (Counsel for the Temporary President of the New York State Senate) made statements to the court in explanation of the rationale of the plan.

 The intervenors, Frederick W. Richmond, a resident of the 14th district, Eugene Victor, a resident of the old 12th, now the new 15th district and Armand J. Starace, a resident of the Bay Ridge area, all complain of the way the district lines in Brooklyn have been drawn. They claim that the integrity of their communities and neighborhoods has been violated and that the new lines represent a bipartisan agreement to protect all incumbents. Victor charges that as a Reform Democrat, his candidacy for Congress has been impaired by so drawing the lines as to remove him from the Flatbush area (the 13th) to the new 15th. They also point to the divisive character of the lines as they affect Coney Island and Bay Ridge. All desire the adoption of plaintiffs' proposed plan.

 The intervenors Mary Leff and Kathryn Goldman are disgruntled with the new 21st and 23rd districts in the Bronx. Mary Leff is a member and an officer of an Independent Democratic Club in the 21st district which will become part of the 23rd and Kathryn Goldman is a member of a Reform Democratic Club and a County "committeeman" for her election district. She also wishes to have the lines of the 21st and 23rd districts redrawn in a manner proposed on a map submitted by these intervenors.

 The intervenors Andrew Cooper, Paul S. Kerrigan and Joan C. Bacchus are primarily interested in the Brooklyn districts. John R. Pillion also intervened.

 The intervenors, Samuel I. Popack, Simon Goldman, Shirley Levitin, Danny Carter, Israel Chanowitz and Rabbi S. H. Fox object to the division of their community, Crown Heights, in Brooklyn between the new 10th and 12th districts and would have Atlantic Avenue as the dividing line instead of the line fixed by the Legislature.

 The rationale of the plan as enacted is contained in the Interim Report of the Joint Committee on Reapportionment submitted to the Legislature to accompany S.3980; A.5780 dated February 22, 1968 (Interim Report). The report assertedly took cognizance of the various decisions of the Supreme Court with reference to redistricting from Wesberry v. Sanders, 376 U.S. 1, 84 S. Ct. 526, 11 L. Ed. 2d 481 (1964) to Swann v. Adams, 385 U.S. 440, 87 S. Ct. 569, 17 L. Ed. 2d 501 (1967) and Lucas v. Rhodes, 389 U.S. 212, 88 S. Ct. 416, 19 L. Ed. 2d 423 (December 4, 1967). The 1960 census figures were used. Because primary elections are to be held on June 18, 1968 and the first day to circulate petitions is April 2, 1968, the report recommended following "election district lines where at all possible, to reduce the work of the individual Boards of Elections to a minimum." *fn1"

 Priority was given to population totals of the various districts. Other considerations were "the geographical conformation of the area to be districted, the maintenance of county integrity, the facility by which the various Boards of Elections can 'tool up' for the forthcoming primary election, equality of population within the region, and equality of population throughout the state." *fn2"

 The peculiar geographical contour of the State was taken into consideration. It "most naturally divides into regions." *fn3" The report concludes that "[population], interest, finances, a charter, custom and history - all tend to separate the City of New York from the rest of the state." *fn4" There has been no contention by any of the parties that the separability of New York City from the rest of the State is not logical and proper. Actually the 19 City districts average 409,109 persons per hypothetical district as against a State average for 41 districts of 409,326 (1960 census).

 Long Island east of New York City contains only the counties of Nassau and Suffolk. To obtain equality of population per district for this area, five districts were necessary. Almost exact equality of population was obtained, the range being from 393,585 to 393,183. [Had four districts been drawn, the population of each would have been over 491,000, a disproportionately large figure. Any attempt to start at Montauk Point and to move west in units of 409,000 would have violated county, city, town and other historical traditions as well as requiring an invasion of New York City].

 Queens and Kings, the western counties of Long Island, although a part of New York City are geographically separated from Manhattan and the Bronx by water. To preserve county integrity, as far as possible, Queens except for the 10th district was divided into four units with a population range of 434,770 to 434,552 - and a part of Queens joined with a part ...

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