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May 13, 1995


The opinion of the court was delivered by: THOMAS J. MCAVOY

 In the case before the court, plaintiffs Roxbury Taxpayers Alliance and three voter-residents of Delaware County, challenge the system of apportionment which allocates weighted votes to members of the Delaware County Board of Supervisors. Plaintiffs allege that the system violates the one person, one vote principle implicit in the Equal Protection Clause of the 14th Amendment.


 A. The Parties

 Plaintiff Roxbury Taxpayers Alliance is an unincorporated association concerned with voting rights and political representation in Delaware County, New York. Plaintiffs Susan E. Moore and Edward E. Moore are residents and registered voters of the Town of Middletown, Delaware County. Plaintiff Elsa McDonald is a resident and voter from the Town of Sidney, Delaware County, the most populous town in the county.

 Defendant Delaware County Board of Supervisors is the county's chief legislative body. The Board of Supervisors was established pursuant to Article IX of the New York State Constitution and Article IV of the County Law of New York. It is responsible for adopting the weighted voting plan which is in use today and which is the subject of this suit.

 B. Delaware County's Weighted Voting Plan

 According to the 1990 census, Delaware County has a population of 47,225 and is divided into 19 townships ranging in population from 550 to 6667. In accordance with state and county laws, the registered voters in each town periodically elect one town supervisor. The elected town supervisor represents his or her town on the county Board of Supervisors. Thus, voters of each town are represented by a single member of the board, regardless of the population of the town in which they reside and vote.

 Voting on the Board of Supervisors is governed by Local Law No. 4 of 1991. Under this law, votes are distributed according to each town's percentage of the total county population. For example, the Town of Bovina has a population of 550 out of a total county population of 47,225, and therefore constitutes 1.17% of the county population. Under the weighted voting plan, Bovina has 39 out of a total of 3480 votes, *fn1" which represents 1.12% of the total votes. The Town of Sidney, population 6667, constitutes 14.12% of the county population and has 468 votes, representing 13.45% of the total number of votes. *fn2"

 These types of weighted voting is more prevalent in New York, where it is used by more than twenty counties, than anywhere else in the country. M. David Gefland & Terry E. Allbritton, Conflict and Congruence in One-Person, One-Vote and Racial Dilution Litigation: Issues Resolved and Unresolved by Board of Estimate v. Morris, 6 J. L. & Pol. 93, 112 (1989). Weighted voting was originally developed in response to the landmark case of Reynolds v. Sims, 377 U.S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964). In Reynolds the Supreme Court found that apportionment plans in which districts of different sizes elected representatives who each had a single vote undervalued the franchise of voters in districts with populations above the mean, and impermissibly overvalued the franchise of voters in districts with populations below the mean. Id. at 563. The Reynolds Court therefore held such plans to be unconstitutional under the one person, one vote principle of the Equal Protection Clause of the 14th Amendment. Id. at 569.

 By allocating votes in proportion to the population of the electoral district, weighted voting plans were used as a device for satisfying the one person one vote requirement, while simultaneously preserving traditional political subdivisions which often had wide variations in population. *fn3"

 C. Procedural Posture of the Case

 The parties are in substantial agreement on all issues of material fact relating to the weighted voting system in Delaware County. Plaintiffs concede that the Delaware County weighted voting plan results in each board member casting votes "which [are] essentially proportionate to the population of his or her district." (Plaintiffs' Statement Pursuant to Local Rule 10(j), P 9, dated Nov. 4, 1994). Plaintiffs do not, therefore, challenge the current system as it is applied to them. Instead, the Plaintiffs have moved for summary judgment under Fed. R. Civ. P. 56, on the ground that weighted voting has been held to be per se unconstitutional by the Supreme Court in Board of Estimate v. Morris, 489 U.S. 688, 103 L. Ed. 2d 717, 109 S. Ct. 1433 (1989).

 D. Standing

 The Defendant correctly maintains that the Roxbury Taxpayers Alliance, Susan Moore and Edward Moore lack standing to bring this challenge. First, in League of Women Voters v. Nassau County Bd. of Supervisors, 737 F.2d 155 (2d Cir. 1984), the Second Circuit restricted organizational standing under § 1983 "by interpreting the rights [§ 1983] secures to be personal to those purportedly injured." Id. at 160 (citing Aguayo v. Richardson, 473 F.2d 1090 (2d Cir. 1974)). The Second Circuit concluded that "neither the language nor the history . . . [of § 1983] suggests that an organization may sue under the Civil Rights Act for the violations of rights of members." Id. Accordingly, the Roxbury Taxpayers Alliance, which is an association concerned with its members' voting rights and political representations, lacks standing to bring this action on behalf of its members.

 Second, Plaintiffs Susan Moore and Edward Moore also lack standing, as they have failed to show injury under the weighted voting plan. In League of Women Voters v. Nassau County Bd. of Supervisors, the Second Circuit adopted the position of the Fifth Circuit in Fairley v. Patterson, 493 F.2d 598 (5th Cir. 1974), and held that plaintiffs who could not show injury by demonstrating that they were domiciled in an underrepresented voting district, "lacked standing to contest a reapportionment law." League of Women Voters, 737 F.2d at 161. Plaintiffs Susan Moore and Edward Moore are registered voters in the Town of Middletown which has 7.21% of the county population and 7.30% of the weighted votes. *fn4" Because Middletown is slightly over represented under the current plan, Plaintiffs Susan Moore and Edward Moore can not show injury and therefore lack standing to challenge the apportionment plan.

 The Defendant does not dispute the standing of Plaintiff MacDonald, who is a resident of Sidney. Sidney's percentage of the county's weighted votes is marginally lower than its percentage of the county population. As such, Plaintiff MacDonald has grounds for alleging injury and therefore has standing to prosecute this action.


 Turning now to the merits of the claim before the Court, it is based on the theory that "the Fourteenth Amendment requires that all local legislatures be structured so that the legislators represent districts which are at least roughly equal in population. A legislature which is not so structured cannot conform to the constitutional command by using weighted voting." (Pl.'s Mem. Supp. Summ. J. at 2-3). In other words, the Plaintiff claims that there is but one method of apportionment that is constitutionally acceptable--a system based on districts of equal population--and that all weighted voting plans are per se unconstitutional. In support of this position, the Plaintiff relies on Board of Estimate v. Morris, 489 U.S. 688, 103 L. Ed. 2d 717, 109 S. Ct. 1433 (1989), and the recent interpretation of this case in Jackson v. Nassau County Bd. of Supervisors, 818 F. Supp. 509 (E.D.N.Y. 1993).

 This Court finds Plaintiff's reliance on Morris to be misplaced, and that Plaintiff misinterprets the exhaustive analysis of Morris performed by Judge Spatt in Jackson. Furthermore, this Court finds that the current system of weighted voting in Delaware County satisfies the two core constitutional requirements for a plan of apportionment: (1) a quantitative requirement that guarantees that the vote of any citizen is approximately equal in weight to that of any other citizen; and (2) a qualitative requirement that the system provide fair and effective representation for all citizens. Morris, 489 U.S. at 701 (citing Reynolds v. Simms, 377 U.S. at 565-66, 576).

 A. Weighted Voting Before Board of Estimate v. Norris

 It is well settled that prior to Morris, both the Second Circuit and the Supreme Court had held that weighted voting plans substantially similar to that of Delaware County were constitutional. Abate v. Mundt, 403 U.S. 182, 29 L. Ed. 2d 399, 91 S. Ct. 1904 (1971); League of Women Voters v. Nassau County Bd. of Supervisors, 737 F.2d 155 (2d Cir. 1984); Greenwald v. Board of Supervisors of the County of Sullivan, 567 F. Supp. 200 (S.D.N.Y. 1983), aff'd, 742 F.2d 1433 (2d Cir. 1983); Franklin v. Krause, 32 N.Y.2d 234, 344 N.Y.S.2d 885, 298 N.E.2d 68 (1973), appeal dismissed for want of substantial federal question, 415 U.S. 904, 94 S. Ct. 1397, 39 L. Ed. 2d 461 (1974). Because these cases articulate the judicial approach to weighted voting ...

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