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November 17, 1981

Carl ANDREWS, Pedro S. Cordero and Benjamin Tenzer, Plaintiffs,
Edward I. KOCH, both individually and as Mayor of the City of New York, the City of New York, Carol Bellamy, both individually and as President of the Council of the City of New York, Thomas J. Cuite, both individually and as Majority Leader and Vice Chairman of the Committee on Rules, Privileges, and Elections of the Council of the City of New York, Melvin Markus, both individually and as Chairman of the Redistricting Committee appointed by the Council of the City of New York, and the Board of Elections of the City of New York, Defendants

The opinion of the court was delivered by: NEAHER


Plaintiffs in this action seek partial summary judgment on their first cause of action, *fn1" which claims that New York City's electoral plan for electing ten of the 45 members *fn2" of the City Council on an at-large basis violates their constitutional rights under the "one person, one vote" principle derived from the Fourteenth Amendment's equal protection clause. Since there appears to be no genuine dispute among the parties as to the relevant and material facts pertinent to that claim, summary judgment is an appropriate procedure for determining whether the facts entitle plaintiffs "to judgment as a matter of law." Fed.R.Civ.P. 56(c). See SEC v. Research Automation Corporation, 585 F.2d 31, 35 (2d Cir. 1978).

 Plaintiffs, who include one black citizen and one of Puerto Rican or Hispanic heritage, are registered voters residing in different election districts within the Borough of Brooklyn and County of Kings in the City of New York. They claim the dilution of their voting rights by reason of defendants' actions. The individual defendants named hold the positions of mayor, president of the City Council, majority leader and vice-chairman of the Council's committee on rules, privileges and elections, chairman of the Redistricting Commission appointed by the Council, and members of the City's Board of Elections. *fn3" They are sued as the officials individually and collectively responsible for the enforcement of the City Council electoral plan of which plaintiffs complain. Defending the existing plan, defendants have cross-moved for summary judgment dismissing plaintiffs' claim for lack of merit.

 Pursuant to the Charter of the City of New York, §§ 21, 27, the City's legislative power is vested in the City Council. Sections 22 and 23 of the Charter, as amended, provide that the Council shall consist of a President, elected on a City-wide basis, Council members elected from Council districts, now numbering 35, which are subject to redistricting after each federal census to assure precise equality of population, and two Council members-at-large from each of the City's five boroughs. All are elected for four year terms. Plaintiffs' constitutional challenge on this motion is premised solely on the current differences in population of the boroughs the five pairs of at-large members represent, attributable in part to substantial racial minority increases in some of the boroughs.

 Before considering the respective parties' contentions, a brief history of the challenged electoral plan is in order. First, it should be noted, these defendants did not originate the plan; they simply carry it out as required by law. The plan was originally adopted by the voters of the City as part of the new New York City Charter at the general election held November 7, 1961, by a vote of 634,152 to 294,338. The plan went into effect as part of the Charter on January 1, 1963, and thus has governed the manner of electing at-large Council members for some 18 years. In 1965 the plan was challenged on the same constitutional grounds advanced by plaintiffs here and survived that challenge. A three-judge district court sitting in the Southern District of New York found that "(the) disparity in voting strength in the City Council between the boroughs due to the method of election of the Councilmen-at-large is not substantial but minimal." Blaikie v. Wagner, 258 F. Supp. 364, 369 (S.D.N.Y.1965). Noting that the at-large method was "designed to afford at least the possibility of representation to a large segment of the population" who could not otherwise elect minority representatives to the Council, the court concluded that there was no violation of the Fourteenth Amendment under the principle of "rational justification" referred to by the Supreme Court in Baker v. Carr, 369 U.S. 186, 235, 82 S. Ct. 691, 719, 7 L. Ed. 2d 663 (1961). Blaikie, supra, at 370. Defendants strongly urge this Court to adhere to the Blaikie ruling as dispositive here.

 That there are wide differences in borough population is evident from the following tabulation, the accuracy of which is not disputed:

 TABLE *fn4"

 Focusing primarily on Brooklyn's population of over six times that of Staten Island, plaintiffs contend that the present at-large councilmanic plan denies voters in the larger boroughs, such as Brooklyn, the full representational weight of their vote, since they elect only the same number of at-large City legislators as lesser populated boroughs. Plaintiffs complain that such inequality results in a debasement or dilution of their voting rights, operates as effectively as would a total denial of the right of suffrage, and has been repeatedly held to violate the equal protection clause of the Fourteenth Amendment in a long line of Supreme Court decisions following the leading case of Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964).

 While recognizing the substantial disparities in borough populations, defendants contend that statistical variations alone cannot displace legitimate political goals which non-proportional voting systems may constitutionally seek to advance. They maintain that before an apportionment system may be struck down for violating the statistical guidelines of Reynolds and its progeny, a reviewing court must consider whether the statistical deviations are caused by concern for legitimate political goals and whether the resulting legislative body adequately reflects the political interests of the populace. Here, defendants urge, the Council members-at-large device was not the creation of a legislature intent on preserving the power of a minority to control the legislative machinery, but a conscious "one person, one vote" decision by the voters themselves. They point out that two distinct political interests were advanced by the borough-wide election of two Council members per borough. One goal was to ensure minority representation in a local government dominated by a single political party, and the other to do so through political units, the boroughs, having a strong traditional base in New York City government, so as to assure adequate representation of borough-wide interests in replacement for the diminished powers of the Board of Estimate. *fn5" Emphasizing that the ten at-large seats constitute less than 25% of the Council, defendants argue that one and a half more Council members allotted to Staten Island is not so significant as to require further redistricting.

 As plaintiffs and amici cogently point out, however, the difficulty with defendants' position is that the Supreme Court has consistently adhered to quite different standards in assessing the conformity of electoral plans to constitutional requirements. First, the Court has instructed "that electoral apportionment must be based on the general principle of population equality and that this principle applies to ... local elections, Avery v. Midland County, 390 U.S. 474, 481 (88 S. Ct. 1114, 1118, 20 L. Ed. 2d 45) (1968)." Abate v. Mundt, 403 U.S. 182, 185, 91 S. Ct. 1904, 1906, 29 L. Ed. 2d 399 (1971). Second, even though "viable local governments may need considerable flexibility in municipal arrangements if they are to meet changing societal needs ... this (Supreme) Court has never suggested that certain geographic areas or political interests are entitled to disproportionate representation." Abate, supra, at 185, 91 S. Ct. at 1906. To the contrary, the Court has "underscored the danger of apportionment structures that contain a built-in bias tending to favor particular geographic areas or political interests or which necessarily will tend to favor, for example, less populous districts over their more highly populated neighbors ...." Id. at 185-86, 91 S. Ct. at 1906-1907.

 Abate, supra, is particularly apposite here as illustrating the Court's consistent adherence to its standard method of determining whether population deviations in election districts are within permissible limits. In that case Rockland County, New York, had devised a plan for an 18-member county legislature to be chosen from five districts which corresponded exactly to the county's five constituent towns. These towns varied widely in population and the number of legislative representatives was determined by assigning one representative to the smallest town and dividing its population into that of each of the other towns to ascertain how many additional representatives each larger town should be granted. The plan was challenged as unconstitutional but upheld by the New York Court of Appeals. In affirming that court's decision, the Supreme Court noted that population variations among the districts produced "a total deviation from population equality of 11.9%," id. at 184, 91 S. Ct. at 1906; but the Court was "not prepared to hold that the ... plan violates the Constitution" in view of Rockland County's long governmental tradition and "the fact that the plan before us does not contain a built-in bias tending to favor particular political interests or geographic areas." Id. at 187, 91 S. Ct. at 1907. Of significance here is the Court's concluding remark that:

"(Nothing) we say today should be taken to imply that even these factors could justify substantially greater deviations from population equality." 403 U.S. at 187, 91 S. Ct. at 1907.

 In Abate, supra, each district's legislative representation was in fact roughly proportionate to its population. See 403 U.S. at 184, n.1, 91 S. Ct. at 1906. Here, even on the most conservative basis as shown in the following table, the total deviation ...

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