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August 21, 1984

BEVERLY MORRIS, JOY CLARKE HOLMES, JOANNE OPLUSTIL, Plaintiffs, against THE BOARD OF ESTIMATE, THE CITY OF NEW YORK, EDWARD I. KOCH, individually and as Mayor of New York, CAROL BELLAMY, individually and as City Council President, HARRISON J. GOLDIN, individually and as Comptroller for the City of New York, HOWARD GOLDEN, ANDREW STEIN, STANLEY SIMON, DONALD MANES, ANTHONY GAETA, each individually and as Borough Presidents of the boroughs of the City of New York, Defendants, and FRANK V. PONTERIO, Intervenor-Defendant, ROBERT A. STRANIERE, individually and as a member of the New York State Assembly, Intervenor-Defendant.

The opinion of the court was delivered by: NEAHER


NEARHER, District Judge.

 In December, 1981, plaintiffs filed suit charging that the New York City Board of Estimate ("Board") deprived them of equal protection under the fourteenth amendment to the United States Constitution. More precisely, as Brooklyn residents, plaintiffs maintained that sections 61 and 62 of the New York City Charter, outlining the Board's legislative plan, devalued their ballots by violating the one person, one vote rule. See 1 New York City Charter & Ad. Code Ann. §§ 61-62 (Williams Press 1976 & Supp. 1982-83).

 In December, 1982, however, the court held that the Board was not subject to that constitutional principle. The court, as a consequence, granted summary judgment to defendants -- the Board and its members ("city defendants") -- as well as to intervenor-defendant Frank V. Ponterio, a Staten Island resident. Morris v. Board of Estimate, 551 F. Supp. 652, 657 (E.D.N.Y. 1982).

 In May 1983, the Second Circuit reversed.

 "[W]e conclude tha the Board . . . is selected by popular election and performs general governmental functions. The principle of one person, one vote is therefore applicable."

 Morris v. Board of Estimate, 707 F.2d 686, 690 (2d Cir. 1983). The Second Circuit, furthermore, remanded with instructions:

 "[T]he district court must determine the degree of malapportionment present (after deciding on the appropriate methodology for doing so) and rule on the policies and interests which the Supreme Court has held may justify deviations from the literal one person, one vote formula."

 Id. (footnote omitted).

 On return, plaintiffs moved for summary judgment; but, after conferring with the court, the parties stipulated that the proceedings should be bifurcated. In the first stage, the most suitable mathematical measure would be identified and superimposed over the Board's electoral scheme to ascertain the malapportionment. If more than a minor deviation were disclosed, the Supreme Court approved policies and interests served by the Board would be discerned in the second stage to settle the variance's acceptability. *fn1"

 In accordance with that agreed course, the court has reviewed the submissions, the record and the law. Based on that examination, the court holds, as to the first stage issues, that the Supreme Court's methodology in Abate v. Mundt, 403 U.S. 182, 184 & n.1, 29 L. Ed. 2d 399, 91 S. Ct. 1904 (1971), is the appropriate standard and, when applied, reveals a 132.9% maximum deviation. The reasons impelling these holdings will be set forth after a brief relation of the limited facts pertinent to this suit's present posture.


 The court and the Second Circuit have detailed the uncontested facts in the prior opinions. To forego needless repetition, reference is made to those previous treatments. Morris v. Board of Estimate, 551 F. Supp. at 653-55, rev'd, 707 F.2d at 687-88. Accordingly, only those facts particularly germane to the instant issues will be recounted.

 The Board is one of New York's governing bodies and consists of eight members, who -- importantly -- area mixture of at-large (city-wide) and district (borough) representatives. As delineated in sections 61 and 62, the Mayor, Comptroller and City Council President possessing two Board votes each, are selected by the metropolitan electorate as a whole. The Borough Presidents of Brooklyn, Queens, Manhattan, Bronx and State Island (Richmond), having one Board vote each, are chosen by their respective borough constituencies. *fn2" As manifest from the 1980 federal census, the boroughs range appreciably in population. Borough Population Brooklyn 2,230,936 Queens 1,891,325 Manhattan 1,427,53 3 Bronx 1,169,115 Staten Island 352,121

 Yet, notwithstanding that sweep were Brooklyn as the largest has more than six times the population of Staten Island as the smallest, each borough has but one assigned Board vote. That difference in population but equivalence in franchise is the primary basis for plaintiffs' charge that, as Brooklyn residents, the Board's legislative design violates their right to equal protection.


 I. Methodology

 A. The Abate Test

 Broadly grouped, reapportionment disputes fall into two categories: quantitative and qualitative.

 "In [a strictly quantitative] case, there are a number of coordinate districts . . . and voters in larger districts allege that their votes are devalued in comparison to those of voters in smaller ones. The issue in a typical reapportionment case, therefore, is whether population deviations from the average district are impermissbly large. . . . The comparison is one based purely on population figures; no showing of discrimination along racial, ethnic, or political lines need be shown."

 Nevett v. Sides, 571 F.2d 209, 215 (5th Cir. 1978), cert. denied, 446 U.S. 951, 64 L. Ed. 2d 807, 100 S. Ct. 2916 (1980) (emphasis added).

 A distinctly qualitative suit, in contrast, transcends straightforward computations.

 "[T]he theory of the qualitative reapportionment action is more subtle and abstruse. This action alleges that district lines were drawn or erased so as to diminish the political input of a cognizable element of the voting population."

 Corder v. Kirksey, 585 F.2d 708, 710 n.2 (5th Cir. 1978), cert. denied, 460 U.S. 1013, 103 S. Ct. 1253, 75 L. Ed. 2d 482 (1983). See also The Supreme Court 1982 Term - Elections, 97 Harv. L. Rev. 135, 139 (1983) ("Elections") ("[F]air apportionment has two dimensions, one "quantitative" and the other "qualitative". The quantitative dimension -- captured by the one-person-one-vote standard -- requires that each individual's vote be of equal weight, and is compromised when districts are of unequal population. Mere numerical equality among voting districts, however, "does not guarantee "substantive equality in the sharing of power." The qualitative dimension, therefore, requires that individuals be able to act in effective voices in representation.") (emphasis in original) (footnotes to citations omitted). *fn3"

 Here, though, plaintiffs have limited their attack to the quantitative aspect by intentionally omitting qualitative contentions. See, e.g., Pl. Br. at 28 n.65 *fn4" ("[Plaintiffs"] argument is not, at this time, . . . a r acial discrimination claim under the Equal Protection Clause."). Necessarily then, as a quantitative action, this suit's outcome is governed mainly by the Board's variance from the one person, one vote principle. See, e.g., Andrews v. Koch, 528 F. Supp. 246, 252 (E.D.N.Y. 1981), aff'd, 688 F.2d 815 (2d Cir. 1982), aff'd sub nom. Giacobbe v. Andrews, 459 U.S. 801, 103 S. Ct. 32, 74 L. Ed. 2d 46 (1982) ("The issue . . . does not implicate questions of political, racial or ethnic discrimination. Simply stated, the question is whether the allocation of an equal number of at-large Council seats to each of the five boroughs, without regard to substantial population disparities, comports with the constitutional rule of substantial numerical equality. . . .").

 While perhaps dispositive in a quantitative suit such as this, deviation from population equality is "fundamental in reapportionment litigation" in general. League of Women Voters of Nassau County v. Nassau County Board of Supervisors, 737 F.2d 155, 169 (2d Cir. 1984). As the Supreme Court has pronounced:

 "Population is . . . the starting point for consideration and the controlling criterion for judgment in legislative apportionment constroversies."

 Reynolds v. Sims, 377 U.S. 533, 567, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964) (quoted in League of Women Voters of Nassau County v. Nassau County Board of Supervisors, 737 F.2d 155, 169 (2d Cir. 1984) (emphasis added and footnote omitted by the Second Circuit). See Abate v. Mundt, 403 U.s. at 185 ("[E]lectoral apportionment must be based on the general principle of population equality and . . . this . . . applies to state and local elections."). See also Note, The Reapportionment Dilemma: Lessons from the Virginia Experience, 68 Va. L. Rev. 541, 569 (1982) ("Reapportionment Dilemma") ("Population equality remains the single most important factor in judicial evaluation of apportionment schemes.").

 After that elemental investigation of the deviation, any subsequent steps depend on the variation exposed. In Brown v. Thomson, 462 U.S. 835, , 103. S. Ct. 2690, 2696, 77 L. Ed. 2d 214 (1983), the Supreme Court described that disparity's contingent effect on a more searching probe.

 "[W]e have held that "minor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of invidious discrimination . . . so as to require justification by the State." [Citation omitted.] Our decisions have established . . . that an apportionment plan with a maximum population deviation under 10% falls within this category of minor deviations. . . . A plan with larger disparities . . . creates a prima facie cse of discrimination and therefore must be justified by the State." *fn5"

 Discovering where the Board's legislative plan sets within the Brown variational framework begins with selecting a methodology. Fortunately, the Supreme Court has eased that choice by its demonstrated impatience with mathematical metaphysics.

 "These are the figures found by the District Court. Appellee . . . argues [for] another method of computation. . . . The State and the city . . . disputed that the deviation . . . was as much as claimed. . . . We decline to enter this imbroglio ofmathematical manipulation and confine our consideration to the figures actually found by the court. . . ."

 Mahan v. Howell, 410 U.S. 315, 319 n.6, 35 L. Ed. 2d 320, 93 S. Ct. 979 (1973) (emphasis added). See Boyer v. Gardner, 540 F. Supp. 624, 628 (D.N.H. 1982) ("[Mahan ] indicate[s] a reluctance to involve the courts in statistical complexities, at least absent reasons to indicate that a more complicated approach is required. . . .").

 Consistent with that perceived disinclination to entertain esoteric, result-oriented equations, the Supreme Court has approved a simple methodology -- the Abate test -- names for the case in which it was sanctioned.

 "An accepted measure . . . is that of maximum percentage deviation from the population mean.Such a formula was approved by the Supreme Court in Abate v. Mundt, 403 U.S. 182, 29 L. Ed. 2d 399, 91 S. Ct. 1904 (1971). The maximum percentage deviation is determined by adding the percentage deviation above the population mean of the district with the greatest number of voters to the percentage deviation below the population mean of the district with the fewest number of voters."

 Flateau v. Anderson, 537 F. Supp. 257, 261 n.7 (S.D.N.Y. 1982). See Brown v. Thompson, U.S. at , 103 S. Ct. at 2701 ("We have come to establish a rough threshold of 10% maximum deviation . . . (adding together the deviations from average district size of the most underrepresenteed and most over-represented districts). . . .") (Brennan, J., dissenting). See also Andrews v. Koch, 528 F. Supp. at 250 ("This is the formula devised by the Supreme Court to measure the extent to which population disparities among legislative districts either conform or fail to conform to the constitutional requirement of substantial population equality."). See generally Guido, Deviations and Justifications: Standards and Remedies in Challenges to Reapportionment Plans, 14 Urb. Law. 57, 58 (1982) ("Guido") ("Variances are most commonly expressed as a percentage range, which is the sum of the percentage by which the most populous district exceeds the mathematical ideal and the percentage by which the least populous district falls short of that ideal."). *fn6"

 Besides being simple, the Abate test is also adaptable to disparate representational designs. To illustrate, in Abate itself, the multi-member voting plan of New York State's Rockland County was studied. Abate v. Mundt, 403 U.S. at 184. In White v. Weiser, 412 U.S. at ...

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