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FLATEAU v. ANDERSON

April 2, 1982

John FLATEAU, Robert V. Connelly, Audrey Bynoe and Angel A. Rodriguez, and all persons similarly situated, and Stanley Fink, both individually and as Speaker of the Assembly of the State of New York, Plaintiffs, and Puerto Rican Legal Defense and Education Fund, Inc., et al., and Manfred Ohrenstein, Plaintiffs-Intervenors,
v.
Warren M. ANDERSON, both individually and as Temporary President and Majority Leader of the New York State Senate; Jay P. Rolison, Jr., both individually and as Co-chairman of the Legislative Task Force on Reapportionment; the Senate of the State of New York; Melvin Miller, both individually and as Co-chairman of the Legislative Task Force on Reapportionment; the Assembly of the State of New York; Hugh L. Carey, both individually and as the Governor of the State of NewYork; Mario M. Cuomo, both individually and as Lieutenant Governor of the State of New York and as Presiding Officer and President of the Senate of the State of New York; the Legislative Advisory Task Force and the Board of Elections of the State of New York, Defendants, and James L. Emery, Defendant-Intervenor



Per Curiam

I.

This lawsuit challenges the constitutionality of the present apportionment scheme of the New York State Senate, Assembly and congressional districts. Plaintiffs are four New York State voters, the Speaker of the State Assembly, the Minority Leader of the State Senate, and the Puerto Rican Legal Defense and Education Fund, Inc. Defendants are the Majority Leader of the State Senate, the Senate itself, the Minority Leader of the State Assembly, the Assembly, the Governor, the Lieutenant Governor, the State Board of Elections, and the Legislative Advisory Task Force on Reapportionment and its two co-chairmen. *fn1"

 The complaint was filed on February 10, 1982. Pursuant to 28 U.S.C. § 2284, a three-judge court was convened. The court heard argument on various motions, including motions for summary judgment, on March 26, 1982.

 All plaintiffs essentially argue that based on the 1980 New York decennial census data, which show a shift and decrease in total population, the existing apportionment schemes for New York's legislative and congressional districts, drawn pursuant to the 1970 census, violate, respectively, the "one-person, one-vote" principle enunciated under the Equal Protection Clause, Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964), and Article 1, § 2 of the United States Constitution. Some plaintiffs also urge that due to an increase in minority population the existing apportionment scheme for the state legislature violates the Fifteenth Amendment to the United States Constitution and the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973 et seq. (1981). All the plaintiffs urge that the present apportionment schemes be declared unconstitutional.

 All but one plaintiff request the court to order New York State to enact a constitutional plan of reapportionment by April 16, 1982 and failing that, request that this court devise a reapportionment plan. The Puerto Rican Legal Defense and Education Fund, Inc. requests that the court itself immediately redistrict the State.

 Certain of the defendants (the State Senate, Warren M. Anderson individually and as Majority Leader of the Senate, and Jay P. Rolison, Jr. individually and as co-chairman of the Legislative Advisory Task Force on Reapportionment) agree that a reapportionment plan must be enacted now with respect to New York's congressional districts but dispute the need to reapportion immediately with respect to the state legislative districts. They argue that Article 3, § 4 of the New York State constitution allows up to six years for the creation of a reapportionment plan for State Senate and Assembly districts. *fn2"

 Governor Carey, another defendant, agrees with plaintiffs that the state should be required to prepare redistricting plans for congressional, Senate and Assembly districts by a date to be fixed by the court, but cautions against any finding of unconstitutionality which would affect either the power of the legislature to act as presently constituted, or the propriety of filling existing legislative vacancies by special elections prior to redistricting. All defendants urge that there should be no finding that the present district lines violate either the Voting Rights Act of 1965 or the Fifteenth Amendment.

 At the conclusion of the arguments on March 26, 1982, we disposed of the pending motions for summary judgment by issuing an order 1) which held that the present New York congressional, Senate and Assembly districts may not, consistent with the Equal Protection Clause of the Fourteenth Amendment and Article 1, § 2 of the Constitution, be employed to conduct any elections for terms commencing on or after January 1, 1983; 2) which directed New York State to devise and enact a constitutional reapportionment plan for Senate, Assembly and congressional districts by April 16, 1982; 3) which specified that special elections intended to fill vacancies in the present state legislature were not affected by the order; and 4) which retained jurisdiction in this court pending final resolution of all issues raised in this action. This opinion sets forth the bases upon which that order was issued.

 II.

 There is no dispute with respect to the following: *fn3"

 In 1972, the New York State Legislature with the approval of the Governor enacted congressional and State Senate and Assembly reapportionment and redistricting plans for the 1972 statewide primary and general elections. *fn4"

 On January 10, 1974 the United States District Court for the District of Columbia entered an order subjecting the counties of Kings, New York and Bronx to the provisions of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973 et seq., thus requiring compliance, as to those counties, with the preclearance requirements of Section 5, 42 U.S.C. § 1973c. *fn5" To effect such compliance, New York State in 1974 amended the 1972 reapportionment and redistricting plans by altering 16 out of 150 Assembly districts, 8 out of 60 Senate districts, and 4 out of 39 congressional districts. 1974 New York Laws, c. 588, c. 589.

 Since 1974 no new reapportionment or redistricting has taken place.

 On December 31, 1980 the United States Census Bureau officially certified to the President of the United States the total population of New York State as 17,557,288. As a result of the decrease in New York's population as evidenced by the census, New York State has lost 5 congressional seats, from 39 to 34. The population mean of each congressional district will be 516,391 persons. *fn6" Based on a presently existing State Senate of 60 members, the population mean of each senatorial district under the 1980 census will be 292,621 persons. The population mean of each of the 150 Assembly districts will be 117,048 persons.

 Based on the above figures, the maximum positive and negative percentage deviations from the population means for the State Senate and Assembly districts as presently constituted are as follows: *fn7" Maximum Percentage Deviation Percentage District from population Mean Deviation Senate # 1 48.91 Senate # 32 -35.84 84.75 Assembly # 1 51.91 Assembly # 79 109.00

 It has been conceded that if a legislative reapportionment plan for the State Assembly and Senate were enacted today which contained such deviations from the population means, it would violate the Equal Protection Clause of the Fourteenth Amendment. *fn8" ...


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