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March 23, 1970

David I. WELLS, Plaintiff,
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 Perry B. Duryea, Jr., as Speaker and Presiding Officer of the Assembly of the State of New York, Defendants, and Earl W. Brydges, as Temporary President of the New York State Senate, Intervenor

The opinion of the court was delivered by: MOORE

MOORE, Circuit Judge.

As a result of the retention of jurisdiction, this court has the dubious privilege of deciding for the third time whether the New York State Legislature has divided its 41 congressional districts into such units as may be constitutionally acceptable to the Supreme Court. The Legislature so acted because of an order of this court (June 17, 1969) directing that the Legislature "enact into law not later than January 30, 1970 a congressional districting plan that is in compliance with the requirements of the United States Constitution and which shall govern the election of members of the United States House of Representatives from the State of New York in the primary and general elections in the year 1970 * * *." We retained jurisdiction to conduct further proceedings as might be necessary to assure compliance with the order. There is no "requirement" in the Constitution for absolute equality in population in the various congressional districts. This requirement was created by judicial interpretation in Wesberry v. Sanders, 376 U.S. 1, 84 S. Ct. 526, 11 L. Ed. 2d 481 (1964) wherein the Supreme Court said "'by the People of the several States' means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's." At pp. 7, 8, 84 S. Ct. at p. 530. Elaborations upon this construction of Art. I, § 2 have been set forth in the various subsequent decisions of the Supreme Court and, more particularly, in those addressed to the congressional districting of the State of New York.

Little time need be expended in an historical review of the apportionment situation. Because of population changes some ten years ago, New York was reduced from 43 to 41 congressional seats. In 1961 the Legislature prescribed the lines for 41 districts. In June 1966 the plaintiff brought this suit, attacking the districting plan because of wide disparities in the population of various districts. This court held the statute invalid for this reason. Wells v. Rockefeller, 273 F. Supp. 984 (1967), aff'd 389 U.S. 421, 88 S. Ct. 578, 19 L. Ed. 2d 651 (1967), and directed that a plan be promulgated which would be in conformity with Supreme Court decisions relating thereto.

 In late February 1968 the Legislature enacted a second plan in which substantial district equality was obtained but on a somewhat sectional basis. This court, believing that the second plan conformed far more closely with the Supreme Court's specification of the salient factors to be taken into consideration and mindful that early 1968 was virtually on the threshold of a 1970 census, which would render any 1968 reapportionment quite academic, upheld the plan despite the realization that a slight shifting in lines in a few instances would have achieved better population equality in certain districts. 281 F. Supp. 821.

 The Supreme Court noted probable jurisdiction, 393 U.S. 819, 89 S. Ct. 115, 21 L. Ed. 2d 91, and on April 7, 1969, in a decision closely tied to its decision in Kirkpatrick v. Preisler, 394 U.S. 526, 89 S. Ct. 1225, 22 L. Ed. 2d 519 (1968) involving reapportionment in the State of Missouri, invalidated New York's 1968 statute, holding in effect that Article I, § 2 of the Constitution required that congressional districts "provide equal representation for equal numbers of people". Pursuant to this mandate, this court directed the Legislature to enact a new plan not later than January 30, 1970 which would be in conformity with Supreme Court requirements, namely, "to equalize population in all the districts of the State." 394 U.S. 542, 89 S. Ct. 1234, 22 L. Ed. 2d 535 (1969).

 On January 22, 1970 the Legislature enacted an Act to repeal Article Seven [the previous districting Act] and to substitute therefor a new Article Seven (S. 6266, A. 1518). Subsequently - but on the same day - an amendment was passed relating to Queens County lines. Both Act and amendment were signed by the Governor the next day and became Chapters 5 and 6, respectively, of the Laws of 1970.

 Fundamental to the Legislature's three plans, the Supreme Court's decisions thereon and this court's decisions is the hypothesis (unrealistic though it be) that the 1960 census figures are the basis for the apportionment. There are no other meaningful figures available for use in a statewide scheme. Not until the 1970 census is announced will the extent of the radical population shifts be officially known. *fn1" The present plan before the court adopts the 1960 census figures throughout the State as do we in our consideration thereof.

 Although this case in theory is an adversary proceeding in that there is a plaintiff and there are defendants, for all practical purposes it merely involves the submission of the plan to this court for its opinion as to whether it conforms to the standards set by the Supreme Court.

 To give plaintiff and any other persons properly qualified an opportunity to present their views and criticisms, this court directed that a hearing be held. At that time, plaintiff presented a plan (entitled his "basic" plan) which would better satisfy his views as to how the State should be divided. His proposed plan has a district population variance from a low of 406,923 to a high of 412,099 in contrast with the Legislature's virtually equal division of a low of 409,011 to a high of 409,814, the mean being 409,324 based on a 1960 population of 16,702,304.

 As an alternative plaintiff tendered a "stopgap" plan in which many districts remain unaltered, several are slightly altered and a few substantially redrawn. He revises the Legislature's plan to eliminate according to his views what he calls "partisan gerrymandering ". In fact plaintiff concedes that "In the present case the only issue that plaintiff brings back to this Court is his challenge to the 1970 congressional districting statute on the ground that the legislative action, if allowed to stand, would accomplish a partisan gerrymander, * * *." In short, because the Legislature has with remarkable mathematical accuracy complied with the Supreme Court's equality requirements (the only requirements specified in its decision), plaintiff no longer has available the population inequality arguments urged on previous occasions and would now impute to the Legislature wholly political motives in their creation of equal districts.

 Whether were such a motive established it would have constitutional significance need not be discussed or decided unless and until there be proof that the district lines were actually drawn to accomplish an unconstitutional result.

 To encase 409,324 persons within some kind of district boundaries must have required the skill of many draftsmen. They in turn must have reported their results to the Joint Legislative Committee on Reapportionment. Had plaintiff wished to ascertain what motivated the draftsmen to divide certain cities between districts or include or exclude certain towns and cities, certainly such proof should have been available from some source. No draftsman and no committeeman was called by plaintiff.

 Plaintiff proceeded largely by taking the 1968 Republican and Democratic congressional election figures in certain districts, excluding therefrom Liberal and Conservative party votes and by assuming that these votes would be static and committed to the particular party in the future. Then by substituting his own suggested boundary lines, plaintiff claims that certain numbers of Republicans and Democrats could be added or subtracted from the districts as presently drawn which ...

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