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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 would be beneficial to his conception of the kind of political balance, or better imbalance, which he would like to achieve.

 Specifically, plaintiff has singled out eight areas for his criticism:


the 6th C.D. (Queens);


the 4th and 5th C.D. s (Nassau);


the 15th and 16th C.D. s (Brooklyn);


the 17th and 19th C.D. s (Manhattan);


the 25th C.D. (Westchester-Rockland);


the City of Albany (split);


the City of Syracuse (split);


the City of Rochester (Marginal, i.e., not certain).

 In each of these areas by making certain assumptions and by redrawing boundary lines, plaintiff believes that certain different political results can be achieved. This, however, is merely to bring about his own gerrymandering. As said by the New Jersey Supreme Court in Koziol v. Burkhardt, 51 N.J. 412, 416, 241 A. 2d 451, 453 (1968) quoting from Jones v. Falcey, 48 N.J. 25, 222 A. 2d 101, 105 (1966) (cases involving the charge of political gerrymandering):


"* * * it would seem impossible for a court to pass upon the validity of political interests without itself making a political judgment or appearing to do so. For these reasons the view generally taken in this new area of judicial activity is that, if the mathematics are acceptable, it rests with the voters, rather than the Court, to review the soundness of the partisan decisions which may inhere in the lines the Legislature drew."

 The function of fixing district lines is, and should be, for the Legislature. Only when their handiwork is violative of fundamental constitutional rights should the courts interfere. This legislative prerogative is just as constitutional, if not more so, as equal representation, if proper respect for the division of powers between the executive, legislative and judiciary branches of government is to be maintained. By way of illustration, were we to accept plaintiff's proposal to reject the lines which split the cities of Albany and Syracuse thereby improving the chances of incumbent Congressmen of the Democratic party in forthcoming elections, we would indeed be entering the "political thicket" *fn2" and would be subject to charges of judicial political gerrymandering.

 Furthermore, the foundation for many of plaintiff's arguments, namely, 1968 congressional election figures in certain areas for certain candidates, is unrealistic. Recent election figures (in particular 1968) in the areas selected for his challenge are only indicative of the voters' reaction to a particular candidate. True, throughout the State there are, and will be, areas predominantly Republican and predominantly Democratic. But this court will not be so naive as not to be aware of the existence, and in certain areas the increasing strength, of the Liberal and Conservative parties. And throughout the nation other parties have come into being which have recently received the support of many voters. Plaintiff's approach of a fixed Republican-Democrat society ignores the all-important factors, amongst others, of the candidate's personality, the public's conception of his ability and integrity and the current issues which he may espouse, or offer to espouse, on behalf of his constituents. For this and other reasons we find no legal (certainly no constitutional) basis for accepting plaintiff's speculations as to benefits, except to his own cause, to be derived from his own schematic approach. *fn3"

 Although this decision could rest on plaintiff's failure of proof, a brief analysis of the legislative procedure is justified. The Legislature's plan could not have come into existence without the participation of many human beings. It was not placed before the Legislature by a deus ex machina descending from the heavens with a plan prepared on a Mount Olympus. Witness the Committee's expression of thanks "to the staff who were required to work long and tedious hours" and without whose effort "this most difficult project could not have been completed."

 How was the plan prepared? According to the "Interim Report of the Joint Legislative Committee on Reapportionment" dated Albany, New York, January 19, 1970 and appendices thereto, there were twelve members of the Committee and seven in staff. This Committee was created by concurrent resolutions first adopted March 15, 1965 and subsequently May 2, 1969, to continue to March 31, 1970. Their report gives an account, and the only account made available to this court, of the rationale behind the fixing of the boundary lines adopted. Briefly stated, the Committee and the Legislature had to deal with certain constants, i.e., 41 districts, a mean population per district of 409,324, the topographical shape of New York State extending from the tip of Fisher's Island and the Atlantic Ocean on the east to Lake Erie and Pennsylvania on the west. For practical reasons it was expedient for the districtographers to start at the east and move to the west in units of approximately 409,324. To achieve the goal of 409,324 or as close thereto as possible, it was in their opinion necessary in certain instances to divide cities and counties. At the same time consideration was given to such municipal subdivisions as were in existence and to statements and opinions of various witnesses (19 listed in the Report) elicited at public hearings held in Brooklyn, New York City, Albany, Mineola and Buffalo on five occasions, respectively, between July 29, 1969 and August 19, 1969. The report was signed by eight of the twelve members of the Committee under date of January 19, 1970, Albany, New York. Four members did not sign.

 Debate on the bills (Chaps. 5 and 6, Laws of 1970) occurred on January 22, 1970 in both Senate and Assembly. The arguments pro and con were directed largely to the areas covered by plaintiff here. The speakers urged acceptance or rejection based upon considerations affecting their own districts. The discussion often was acrimonious but left little doubt as to the speakers' beliefs concerning the merits or demerits of the plan. The bills were passed by a party vote of both houses.

 No one of the four non-signing members of the Committee was called as a witness. Instead a paper entitled "Affidavit" of the four members - but signed only by two - was introduced to show that they had not been consulted during the preparation of the legislation. In addition a four-page statement entitled "Minority Report of Joint Legislative Committee on Reapportionment" dated February 16, 1970, was introduced although no substantiating proof to establish its competency was presented. However, transcripts of the debates in both Senate and House were made available to the court. Pltf's Exhs. 3 and 4.

 Reverting to the plan, obviously where one city or one county was too large or too small for a single unit some invasion into a neighboring district had to be made. The Supreme Court had indicated that former political unit lines were to be subordinated to equality and that modern transportational facilities now overcame former barriers. *fn4" Illustrative of this situation is the 25th C.D. where it was deemed necessary to fill out the district on the east side of the Hudson River to pick up segments of the population on the west side. The areas selected are connected in one case by the Tappan Zee Bridge and the other closely adjacent to the Bear Mountain Bridge.

 To meet the goal of mathematical equality in a State in which population density varies widely, the Legislature had to cope with boundary lines drawn to accomplish this result. Some recognition was undoubtedly given to the pattern laid out in antecedent plans. However, geometric nicety of design must give way to numerical equality. A series of perfect squares, rectangles or even triangles, each containing 409,324 persons, could not be placed upon a map of New York State so that 41 districts would fit congruously therein. Therefore, curious shapes were bound to result. But it is not for this court to direct - even if we possessed the competence - the Legislature to straighten a line here, bend it there or include or exclude various towns in a manner differing from the plans as drawn.

 Finally, in their briefs plaintiff and defendants both discuss the questions of jurisdiction and justiciability of the political gerrymander issue. We accept jurisdiction. Despite serious doubts as to the justiciability of the gerrymander issue, we find it unnecessary to resolve this question. Since there has been no proof presented of any gerrymander, other than plaintiff's speculations as to what might have motivated the individual Senators and Assemblymen in voting for the bills, any opinion expressed upon the hypothesis of gerrymander would be ill-founded and gratuitous.

 In summary, no evidence has been presented to us to indicate that a good faith effort to comply with the Supreme Court's mandate has not been made. Of course, a myriad of plans could have been drafted. A few thousand people could have been moved here and there but, as previously stated, the sole question before us is: does the plan as enacted comply with the mandate of the Supreme Court? Our answer is that it does.

 This three-judge court has now fulfilled its obligations to conduct proceedings and to examine the plan to assure compliance with the Supreme Court's mandate and this court's own order of June 17, 1969. Accordingly, it approves the plan enacted and as amended as in conformity with Constitutional requirements and dismisses the complaint.

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