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REFORM OF SCHOHARIE COUNTY v. SCHOHARIE COUNTY BD.

August 20, 1997

REFORM OF SCHOHARIE COUNTY, LAWRENCE BUSH, WAYNE COOPER, ANDREW L. MASON, SUSAN McGIVER, DENISE SCHERMERHORN, ROBERT SCHERMERHORN, LEO SIEMION, ROBERT D. SMITH, RONALD L. SPRINGSTEAD, WAYNE R. STINSON, and DARYL VAN DYKE, Plaintiffs
v.
SCHOHARIE COUNTY BOARD OF SUPERVISORS, Defendant.



The opinion of the court was delivered by: MUNSON

 Plaintiffs move for summary judgment in this action challenging as unconstitutional the method of electing supervisors to the Board of Supervisors of Schoharie County. The court entertained oral argument at its regular motion term in Albany, New York on November 27, 1995, and decides the motion herein.

 I. BACKGROUND

 The New York State Legislature established the County of Schoharie in the year 1795. The County is essentially agrarian in character, encompassing some 675 square miles in the eastern central area of the state. According to the 1990 census, the County's population is 31,859 -- noticeably less than its peak population of 37,592 recorded in the 1870 census. The County is divided into 16 towns, ranging in size from Cobleskill with 7,270 residents (including students at the State University of New York campus) to Blenheim with 332. The newest of these towns, Richmondville, was formed in 1849.

 The County is governed by the defendant Board of Supervisors. Each of Schoharie County's 16 towns elects one supervisor to either a 2 or 4 year term on the Board. A supervisor was first elected in 1791, and the current arrangement has probably been in existence since 1850, the year after the last town was constituted. In order to account for the disparate population of the different towns, and to effectuate the "one man, one vote" principle, the Board has used a weighted voting system since 1975. Under this method, each supervisor is given a number of votes roughly proportionate to his or her town's percentage share of the total population of the County, as reflected by the latest national census. See Schoharie County Local Law No. 4 of the year 1994, Ex. 1 att'd to Pls.' Notice of Motion, Doc. 5. Under the present apportionment for example, the supervisor for the town of Middleburgh, which is inhabited by 3,296 persons, is given 320 votes in matters requiring the majority vote of the Board, while the supervisor of Summit, populated by 973 people, wields 97 votes. Id. at 2. In matters requiring a supermajority of two-thirds of the Board vote the Middleburgh and Summit supervisors are allocated 157 and 48 votes respectively. Id. at 3. *fn1"

 Plaintiff REFORM "is an unincorporated association formed for the purpose, among others, of securing reform of political institutions in the county." Compl., Doc. 1, P 4. Plaintiffs Wayne Cooper and Daryl Van Dyke are residents of Cobleskill. Plaintiff Susan McGiver resides in the town of Schoharie. Plaintiff Robert D. Smith is the supervisor of the town of Wright. Presumably he also lives there. The residences of the other individual plaintiffs are not apparent from the record. Plaintiffs have instituted suit pursuant to the Civil Rights Act of 1871, 42 U.S.C. ยง 1983, contending that the practice of electing one supervisor each from electoral districts of widely disparate populations -- viz. the towns -- violates the Equal Protection Clause of the Fourteenth Amendment. They seek declaratory and injunctive relief. Dispensing with the usual exegesis on the standards for summary judgment motions pursuant to Rule 56(c), this court commences to analysis.

 II. DISCUSSION

 The court's decision today is substantially informed by Chief Judge McAvoy's recent case concerning the Board of Supervisors in adjoining Delaware County. Roxbury Taxpayers Alliance v. Delaware County Board of Supervisors, 886 F. Supp. 242 (N.D.N.Y. 1995), aff'd, 80 F.3d 42 (2d Cir.), cert. denied sub nom. MacDonald v. Delaware County Board of Supervisors, 136 L. Ed. 2d 127, 117 S. Ct. 189 (1996). That case, as conceded by plaintiffs herein, upheld a voting "system virtually identical to Schoharie's." Pls.' Mem. Law, Doc. 6, at 4. To the extent plaintiffs argue that the Constitution requires without exception that Schoharie County's Board of Supervisors be elected from districts of nearly equal population, the Second Circuit's opinion in Roxbury rejecting that contention is controlling precedent.

 In Roxbury Judge McAvoy observed that

 
while the Supreme Court may prefer electoral districts of equal population, local governments still have the flexibility to organize themselves in ways that meet the needs of the local communities, as long as they are within reasonable constitutional parameters.

 886 F. Supp. at 251.

 One such parameter is that the deviation between a town's percentage share of the county's population and the supervisor's allocated votes as a percentage of the Board's total votes cannot be too large. The deviation in Delaware County was 0.92%, "a figure that is certainly within constitutional limits." 80 F.3d at 49. But the Court of Appeals in Roxbury also noted that it had previously upheld a deviation of 7.3%. Id. (specifically, in League of Women Voters v. Nassau County Board of Supervisors, 737 F.2d 155 (2d Cir. 1984), cert. denied, 469 U.S. 1108, 83 L. Ed. 2d 778, 105 S. Ct. 783 (1985)). And the United States Supreme Court has accepted a deviation of 11.9%. Abate v. Mundt, 403 U.S. 182, 184, 29 L. Ed. 2d 399, 91 S. Ct. 1904 (1971). Using the method of calculation applied by Judge McAvoy and subsequently approved by the Second Circuit in Roxbury, the maximum deviation in Schoharie County is 2.1% for those matters requiring a majority vote *fn2" and 2.72% for a vote requiring a supermajority of two-thirds. *fn3" Both figures are well under League of Women Voters ' 7.3% deviation and Abate's 11.9%, and thus do not run afoul of the Equal Protection Clause.

 The electoral districts should be "free from any taint of arbitrariness or discrimination." Brown v. Thomson, 462 U.S. 835, 843, 77 L. Ed. 2d 214, 103 S. Ct. 2690 (1983) (internal quotations omitted). Given that Schoharie County's 16 towns have each been electing one supervisor to the defendant Board for the past 147 years or so, there appears to be little chance of either an arbitrary division of electoral districts, or an ongoing discriminatory conspiracy. Indeed, the maintenance of historical boundaries is one important consideration in permitting disparately populated voting districts. Roxbury, 80 F.3d at 48. As it is in Delaware County, id. at 49, no single town has a majority of Schoharie County's population, and thus no single supervisor can dominate the Board. The following characteristics of Delaware County are also in evidence in Schoharie County:

 
The Board's small size allows for the efficient conduct of county business and a greater degree of flexibility than would a Board of substantially greater size. By having each town elect a representative, the County assures that the interests of every town, no matter how small, are considered by the Board, and that no town suffers from permanent lack of representation on account of its size. In this way, the County's method of local governance preserves not ...

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