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WHELAN v. CUOMO

June 15, 1976

Robert P. WHELAN, Plaintiff,
v.
Mario CUOMO, Secretary of State of the State of New York, Defendant



The opinion of the court was delivered by: JUDD

JUDD, District Judge.

 MEMORANDUM AND ORDER

 In this civil rights action plaintiff seeks to enjoin the election of Congressmen from New York, on the theory that 2 U.S.C. § 2, fixing the number of representatives at 435, is unconstitutional.

 Plaintiff seeks the convening of a three-judge court pursuant to 28 U.S.C. §§ 2281, 2284, and summary judgment pursuant to F.R.Civ.P. Rule 56. The defendant has filed his own motion for summary judgment.

 Facts

 Plaintiff is a citizen of the United States of America and a resident of New York State. Plaintiff has been an eligible voter since 1944 and avers that he has never failed to vote in an election for a member of the House of Representatives. The defendant is the Secretary of State of the State of New York and, as such, is charged with the responsibility to

 . . . prepare a general certificate under the seal of the state and attested by him as secretary thereof, addressed to the house of representatives of the United States, in that congress for which any person shall have been chosen, of the due election of all persons chosen at that election as representatives of this state in congress, and shall transmit the same to the house of representatives at its first meeting. . .

 N.Y. Election Law § 278(4).

 The plaintiff seeks to obtain a declaratory judgment that 2 U.S.C. §§ 2 and 2a are unconstitutional and to enjoin the defendant from performing his responsibility under § 278(4) of the New York Election Law. Section 2 of Title 2 of the United States Code fixes the number of members of the House of Representatives at 435. Section 2a provides the method of reapportioning this number of representatives among the several states in accordance with their population as determined by the decennial census.

 Simply put, the plaintiff's complaint avers that, given the present population of the nation, section 2 of Title 2, in fixing the number of members of the House of Representatives at 435, violates Article I, section 2, clause 3 of the Constitution. Article I, section 2, clause 3 deals first with the apportionment of representatives and direct taxes among the states, then provides for a census ("enumeration") every ten years, and then specifies, in relevant part:

 
The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; . . .

 The balance of clause 3 sets forth the initial apportionment of 65 representatives.

 The population of the United States was over 203 million at the time of the 1970 census. If there were one representative for each 30,000 of population, the House of Representatives would consist of over 6,700 members.

 Discussion

 Plaintiff's motions may be defeated on at least two procedural grounds even before the court reaches the merits. First, in an action which attacks the constitutionality of an act of Congress, notice must be given to the United States Attorney General and the United States Attorney. 28 U.S.C. § 2284(2). This was not done. Second, the New York Secretary of State exercises only a ministerial function in certifying the results of the votes cast for Congressmen. Matter of Hart, 161 N.Y. 507, 55 N.E. 1058 (1900). His functions concerning Congressional elections are not comparable to those of the Secretary of State of Tennessee concerning state legislators. Therefore, there is no significance in the fact that the Secretary of State of Tennessee was the defendant in Baker v. Carr, 179 F. Supp. 824 (M.D.Tenn.1959), reversed, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). The result of an injunction against the New York Secretary of State would be simply to leave New York with no representatives in Congress, since he would have no power to fix a different number to be elected. The answer to the complaint presents a defense of failure to join an indispensable party, although this was not pressed in defendant's brief. F.R.Civ.P. 19.

 Mindful of the need for a district court to canvass all issues that may be presented on appeal, the court will address itself to the constitutional issue in spite of the preliminary barriers to plaintiff's success in the action.

 On its face, the language of the Constitution has not been contravened here. The population of the United States as of 1970, the year of the last official federal census, was 203,184,772. The number of representatives therefore does not exceed one for every 30,000, there being approximately one for every 467,000.

 Plaintiff does not dispute these simple mathematics. Rather, plaintiff contends that the present ratio of one representative for every 467,000 contravenes the spirit, if not the letter, of Article I, section 2, clause 3 of the Constitution. However, an examination of the history of the Constitutional Convention and the surrounding debate shows that plaintiff's position is without merit.

 The provision which ultimately became the relevant portion of Article I, section 2, clause 3 is an example of several major compromises reached at the Constitutional Convention. An understanding of these broader issues is helpful to put the provision here into context. The first of these themes is the struggle between the large, more populous states and the smaller states. The division between the Senate and the House of Representatives reflects this basic tension. The Senate guaranteed some protection for the smaller states by giving each state equal weight regardless of ...


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