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April 14, 1993

THE NASSAU COUNTY BOARD OF SUPERVISORS, JOSEPH N. MONDELLO, GREGORY P. PETERSON, BENJAMIN L. ZWIRN, BRUCE NYMAN, ANGELLO A. DELLIGATTI, DONALD P. DERIGGI, in their official capacities as members of the Nassau County Board of Supervisors, COUNTY OF NASSAU, NASSAU COUNTY BOARD OF ELECTIONS, SINITA WALKER AND JOHN MATTHEWS, in their official capacities as commissioners of the Nassau County Board of Elections, Defendants.


The opinion of the court was delivered by: ARTHUR D. SPATT


SPATT, District Judge.

 "Within a given constituency, there can be room for but a single constitutional rule -- one voter, one vote" ( Gray v. Sanders, 372 U.S. 368, 382, 9 L. Ed. 2d 821, 83 S. Ct. 801 [1963]). In his concurrence in Gray, Justice Potter Stewart reaffirmed the right of political participation which reaches back to The Federalist Papers and forward to as yet unknown possibilities of electronic politics in the 21st century. One can only imagine what Hamilton, Madison and Jefferson would have thought of modern "PCs" and "MACs" humming overtime on complicated apportionment formulas.

 Yet despite the growth of our population and the development of our complex technology, the fundamental character of the right to vote remains paramount, surfacing from time to time in issues raised about both the quantity and quality of representation. Whether these questions arise at the national or neighborhood level, as they do in the instant case, the fundamental principle of "one person, one vote" is unchanging. What does change is how Government carries out its mandate to retain the vitality of that basic precept.

 In the case before the Court, eight voter-residents of Nassau County, in bringing this constitutional challenge, ask the Court to re-examine the structure of the legislative body which governs the County in light of the Supreme Court's reaffirmance of the "one person, one vote" rule in New York City Bd. of Estimate v. Morris, 489 U.S. 688, 692-703, 109 S. Ct. 1433, 103 L. Ed. 2d 717 (1989).


 A. The Parties

 The eight plaintiffs are registered voters in the Towns of Hempstead and Glen Cove. Specifically, George Jackson and Elaine Nesin are White voters in the Town of Hempstead; William Donald Stanford, Alonzo Hopkins, Kathryn Rogers, Carlos E. Mackey and David Ford are Black voters in the Town of Hempstead; and Francine Grier is a Black voter in the Town of Glen Cove.

 The defendant Nassau County Board of Supervisors, established in 1937 pursuant to the New York State Constitution, Article IX and Local Law of Nassau County Article 1, is the general legislative body for Nassau County. At the time this suit was commenced, the individual defendants held the following positions: Joseph Mondello, Presiding Supervisor of the Town of Hempstead; Gregory P. Peterson, supervisor of the Town of Hempstead; Benjamin L. Zwirn, Supervisor of the Town of North Hempstead; Bruce Nyman, Supervisor of the City of Long Beach; Angelo A. Delligatti, Supervisor of the Town of Oyster Bay; and Donald P. DeRiggi, Mayor-Supervisor of the City of Glen Cove.

 The defendant Nassau County Board of Elections has the responsibility for conducting elections for the Board of Supervisors. Defendants Sinita Walker and John Matthews are Commissioners of the defendant Board of Elections and they are responsible for the conduct of the elections in Nassau County.

 Each individual defendant is sued in his or her official capacity.

 B. Jurisdiction

 Jurisdiction in this case is based upon 28 U.S.C. §§ 1331 (federal question), 1343 (civil rights), 1357 (injury under federal laws), and 2201 (declaratory judgments). This action is brought under the aegis of the Equal Protection Clause of the Fourteenth Amendment, the Fifteenth Amendment to the United States Constitution and pursuant to 42 U.S.C. §§ 1973, 1983 and 1985.

 C. The Complaint

 The Nassau County Board of Supervisors serves as the legislative body for Nassau County and is composed of elected representatives from the County's five municipalities. As the largest municipality, the Town of Hempstead has two representatives on the Board; each of the other municipalities has one representative. These six lawmakers sitting on the Board are each "permitted to vote on proposed legislation in accordance with a weighted voting method devised by Prof. John F. Banzhaf III" (Complaint, P1). The particulars of the weighted voting plan are delineated at Points III and IV, infra. The Nassau County Board of Supervisors has, since 1917, used a system of weighted voting that gives more votes to Board members from the more populous towns and cities than to Board members from the less populous areas.

 The Banzhaf method assertedly is intended to allow "municipalities with disparate populations to be represented on the County Board while purporting to satisfy the constitutional requirement that representation be proportionate to population" (id.). The plaintiffs contend that the United States Supreme Court rejected the Banzhaf methodology in New York City Board of Estimate v. Morris, 489 U.S. 688, 103 L. Ed. 2d 717, 109 S. Ct. 1433 (1989), stating that it was "an unrealistic approach [for] determining whether citizens have an equal voice in electing their representatives" ( Id. at 689).

 This suit consists of three causes of action. In their first claim, the plaintiffs allege that Nassau County's weighted voting system, which uses the Banzhaf method, allocates votes to each municipality in a manner that is not directly proportional to the population of the municipalities and therefore violates on its face the "one person, one vote" principle mandated by the Equal Protection Clause of the Fourteenth Amendment. In their second cause of action, the plaintiffs assert that the manner in which the Banzhaf Index is applied to the structure and voting functions of the Board of Supervisors is unconstitutional. The third claim encompasses the alleged dilution of voting strength among Black and Hispanic voters in the County. With respect to this third claim, the plaintiffs contend that


"the use of a weighted voting scheme which permits the creation of large districts and further permits, in Hempstead, the election of representatives on an at-large basis has the effect of diluting the electoral opportunities of the minority communities in Nassau County and of denying these communities fair and effective representation in violation of Section 2 of the Federal Voting Rights Act, 42 U.S.C. § 1973 et seq. " (Complaint, P2).

 Ultimately, the plaintiffs seek declaratory and injunctive relief to enforce the provisions of the First, Fourteenth and Fifteenth Amendments to the Constitution as well as Section 2 of the Voting Rights Act.

 D. Prior Constitutional Challenges to the Weighted Voting Plan

 The arguments asserted by both sides in this controversy contain various interpretations of the previous cases dealing with the principle of "one person, one vote" and the concept of weighted voting in several counties within New York State. Therefore, it is necessary to review the actions which provide the background for the instant challenge before turning to the merits of the motion now before the Court.

 (1) Iannucci v. Board of Supervisors

 In the mid-1960s, Washington County, a municipality in upstate New York, attempted to implement a plan of permanent reapportionment based on weighted voting (see Iannucci v. Board of Supervisors of Washington County, 27 A.D.2d 346, 279 N.Y.S.2d 458 [3d Dept. 1967]). The Supreme Court at Special Term issued an order invalidating the plan as unconstitutional.

 On appeal, the Appellate Division, Third Department held that weighted voting on the county level as presented could not satisfy the "one person, one vote" mandate of Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506, rehearing denied, 379 U.S. 870, 85 S. Ct. 12, 13 L. Ed. 2d 76 (1964). The court went on to note that weighted voting, "although not as unrepresentative as the historical representation by town supervisors, is unconstitutional and the only practical solution to the problem of reapportionment is by the method of district representatives based on population or, perhaps, by the county wide election of supervisors at large" ( id. 279 N.Y.S.2d at 459). In reaching its decision, the Third Department observed that while weighted voting cures the previous favoritism in areas of smaller population, "it by the very system itself creates new inequities in terms of power" (id.). The board was directed to prepare and submit a permanent plan of reapportionment within ten days. It adopted an "Adjusted Weighted Voting Plan."

 The New York State Court of Appeals thereafter reviewed the Washington County case, along with a reapportionment action from Saratoga County, and found that both boards as then constituted were "malapportioned" and violative of the "one person, one vote" principle ( Iannucci v. Board of Supervisors of Washington County, 20 N.Y.2d 244, 249, 282 N.Y.S.2d 502, 506, 229 N.E.2d 195 [1967]). In reaching this conclusion, the court cited Prof. John Banzhaf's work on weighted voting, noting that the "significant standard for measuring a legislator's voting power . . . is not the number of fractions of votes which he may cast but, rather, his 'ability . . . by his vote, to affect the passage or defeat of a measure'" ( id. at 251, quoting Banzhaf, "Weighted Voting Doesn't Work: A Mathematical Analysis," 19 RUTGERS L. REV. 317, at 318).

 The court did not hold that weighted voting plans are unconstitutional per se, but did point out their fundamental flaws, as follows:


"the principle of one man-one vote is violated, however, when the power of a representative to affect the passage of legislation by his vote, rather than by influencing his colleagues, does not roughly correspond to the proportion of the population in his constituency. Thus, for example, a particular weighted voting plan would be invalid if 60% of the population were represented by a single legislator who was entitled to cast 60% of the votes. Although his vote would apparently be weighted only in proportion to the population he represented, he would actually possess 100% of the voting power whenever a simple majority was all that was necessary to enact legislation. Similarly, a plan would be invalid if it was 'mathematically impossible' for a particular legislator representing say 5% of the population to ever cast a decisive vote. Ideally, in any weighted voting plan, it should be mathematically possible for every member of the legislative body to cast the decisive vote on legislation in the same ratio which the population of his constituency bears to the total population. Only then would a member representing 5% of the population have, at least in theory, the same voting power (5%) under a weighted voting plan as he would have in a legislative body which did not use weighted voting -- e.g., as a member of a 20-member body with each member entitled to cast a single vote. This is what is meant by the one man-one vote principle as applied to weighted voting plans for municipal governments. A legislator's voting power,measured by the mathematical possibility of his casting a decisive vote, must approximate the power he would have in a legislative body which did not employ weighted voting ( Iannucci, 20 N.Y.2d at 252).

 In order to measure the mathematical voting power of each member of the county boards of supervisors, the court found that the opinions of experts using computer analyses would be necessary -- an expensive proposition ( id. at 252-253). The court further found that the boards are not entitled to rely on a presumption that their legislative acts are constitutional. Such a presumption


"is derived from the principle that it is improper for a court, in passing upon a constitutional question, to lightly disregard the considered judgment of a legislative body which is also charged with a duty to uphold the Constitution. With respect to weighted voting, however, a 'considered' judgment is impossible without computer analyses and, accordingly, if the boards choose to reapportion themselves by the use of weighted voting, there is no alternative but to require them to come forward with such analyses and demonstrate the validity of their reapportionment plans" ( id. at 254).

 Prophetically, the court's last word was one of caution -- that such reapportionment cases had the potential to drag the courts unnecessarily into a "mathematical quagmire"(id., citing Baker v. Carr, 369 U.S. 186, 268, 82 S. Ct. 691, 7 L. Ed. 2d 663 [1962]).

 (2) Franklin v. Mandeville

 In 1968, five plaintiffs, each of whom was a resident, taxpayer, and qualified voter of one of the three towns andtwo cities comprising Nassau County brought an action for declaratory judgment, seeking an order declaring unconstitutional Section 104 of the Nassau County Charter, Laws 1936, c. 879, as violative of the "one person, one vote" principle (see Franklin v. Mandeville, 57 Misc. 2d 1072, 294 N.Y.S.2d 141 [Sup. Ct. Nassau Cty. 1968]). Citing Iannucci, the Supreme Court, Nassau County held that the concept of "one person, one vote" applied to local legislative bodies ( id. 294 N.Y.S.2d at 146).

 Specifically, the court found that the scheme of apportionment which was mandated by the county charter failed to comply with the dictates of the Equal Protection Clause of the State and Federal Constitutions, and was therefore invalid in its entirety (id. at 147-148). Stating that the only conclusion which could be reached was that Section 104 was not in compliance, the court noted that


"the present plan is invalid because each citizen of the Town of Hempstead enjoys a voting status inferior to that of any other voter in Nassau County. These citizens cumulatively constitute substantially over 50 per cent of the County's population, yet their representatives have less than 50 per cent of the Board's total vote" (id. at 148).

 The court ultimately directed the defendants to submit a reapportionment plan consistent with the "one person, one vote" principle within six months of the judgment.

 On appeal, the Appellate Division, Second Department agreed with the findings of Special Term that the weighted voting plan for the election of Supervisors of the County of Nassau violated the "one person, one vote" precept as explained in Reynolds v. Sims (see Franklin v. Mandeville, 32 A.D.2d 549, 299 N.Y.S.2d 953, 954 [2d Dept. 1969]). In affirming for the reasons stated in the opinion below, the Second Department noted that it was unnecessary to take testimony on whether the plan was also invalid under the premise set forth in Iannucci in that it did not accord to each legislator the voting power measured by the mathematical possibility of his casting a decisive vote (id. at 955).

 The Court of Appeals affirmed the decision in principle but modified the order to direct that a valid reapportionment plan be adopted by the Board within six months after public announcement of the results of the 1970, rather than the 1960, federal census concerning the number of inhabitants in Nassau County ( Franklin v. Mandeville, 26 N.Y.2d 65, 69-70, 308 N.Y.S.2d 375, 377, 256 N.E.2d 534 [1970]). In referring to Section 104, the Court of Appeals observed that "inequality in some degree is mandated and, indeed, perpetuated by the charter provision . . . a vital factor which distinguishes the case from Abate v. Mundt, 25 N.Y.2d 309, 305 N.Y.S.2d 465, 253 N.E.2d 189, recently decided" ( id. 26 N.Y.2d at 69).

 A brief word about Abate v. Mundt is necessary here since both parties rely to some extent on this case as support for their arguments. In Abate, the New York Court of Appeals found that for the purpose of determining whether a particular plan of apportionment meets the requirements of the Equal Protection Clause, the question is whether the plan adequately apportions representatives on a population basis ( Abate v. Mundt, 25 N.Y.2d 309, 314, 305 N.Y.S.2d 465, 466-467, 253 N.E.2d 189 [1969]) (emphasis supplied). In response to a reapportionment suit brought by taxpayers, the Rockland County Board of Supervisors submitted a plan calling for a County Legislature of 18 members chosen from five districts corresponding to the county's five constituent towns ( id. at 313). The smallest district with a population of 12,114 was assigned one representative in the County Legislature; the number of representatives of each of the other districts was determined by dividing the population of each remaining district by the population of the smallest district, with any fractional results rounded to the nearest integer (id.).

 In affirming the Appellate Division's approval of the plan, the Court of Appeals observed that "the issue is not to be resolved merely in terms of a sterile mathematical exercise" and held that a 12% variation in the number of people per legislator was not of itself "sufficient to render the plan constitutionally defective" ( id. 25 N.Y.2d at 314-315).

 The Supreme Court granted certiorari in the case and affirmed the New York Court of Appeals decision upholding the plan (see Abate v. Mundt, 403 U.S. 182, 91 S. Ct. 1904, 29 L. Ed. 2d 399 [1971]). In cautioning about apportionment structures that contain a built-in bias, the court found that there was no such indigenous bias in the Rockland County plan ( id. at 186). In making that observation, the court also noted the following:


"we emphasize that our decision is based on the long tradition of overlapping functions and dual personnel in Rockland County government and on the fact that the plan before us does not contain a built-in bias tending to favor particular political interests or geographic areas. And nothing we say today should be taken to imply that even these factors could justify substantially greater deviations from population equality " ( id. at 187) (emphasis supplied).

 (3) Franklin v. Krause

 The Nassau County Board of Supervisors did not adopt a plan within the six month period mandated by the Court of Appeals, but rather introduced a plan on August 14, 1972, which it subsequently adopted on September 25, 1972 as Local Law No. 13-1972 (see Franklin v. Krause, 72 Misc. 2d 104, 338 N.Y.S.2d 561, 563 [Sup. Ct., Nassau Cty. 1972]). Again the plaintiffs brought an action in Supreme Court, Nassau County for an order appointing a non-partisan commission to prepare a plan, asserting that since the Board of Supervisors had not acted within the specified time, the Board "forfeited the right to adopt a plan of its own" ( id. 338 N.Y.S.2d at 562).

 The plaintiffs further contended that the plan adopted by the Board on September 25, 1972 was only a "warmed over version of one previously held unconstitutional by the Court of Appeals" and was itself unconstitutional. In setting the standard for the allocation of votes, Local Law No. 13-1972 provided for the following:


"the vote 'voting power' of a Supervisor shall be measured 'by the mathematical possibility of his casting a decisive vote on a particular matter.' . . . the percentages of voting power 'shall approximate' the corresponding percentages of population and it further guarantees that no town or city shall be wholly without voting power.


Finally, in establishing its general standards for the system, the new plan requires that in preparing each reapportionment of votes defendant-Board shall employ 'an independent computerized mathematical analysis' and any other methods which shall 'most nearly analyze' the percentages of voting power and population (id. at 563).

 Working with the assistance of an independent computerized analysis, the Board arrived at a total of 130 votes to be allocated, divided as follows: Hempstead -- Presiding Supervisor (35 votes); Hempstead -- Supervisor (35); Oyster Bay (32); North Hempstead (23); Long Beach (3); and Glen Cove (2) ( id. 338 N.Y.S.2d at 564). The number of votes to achieve a majority was set at 71, while a "two-thirds" vote would require 92. "The computer then calculates the number of decisive votes each Supervisor may cast, then the respective percentages of voting power and, finally, for comparison purposes, the corresponding percentage of the population" (id.). In terms of relevant percentages and deviations, the new "majority" plan resulted in the following figures: Percentages Percentages of of Population Voting Power Deviation Hempstead (Total) 56.2 54.6 -1.6 Oyster Bay 23.1 20.4 -2.7 North Hempstead 16.5 13.0 -3.5 Long Beach 2.3 5.6 .3 Glen Cove 1.8 5.6 .8


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