`one person, one vote' applied to appointed bodies performing legislative
functions, but whether such bodies were permissible in the first
instance. Having decided that the school board could. as a nonlegislative
body, be appointed, it explicitly held that the "one person, one vote"
principle did not apply. See Sailors, 387 U.S. at 111, 87 S.Ct. at 1553.
It reiterated this holding, albeit in dicta, in Hadley: "We have also
held that where a State chooses to select members of an official body by
appointment rather than election, and that choice does not itself offend
the Constitution, the fact that each official does not `represent' the
same number of people does not deny those people equal protection of the
laws." Hadley, 397 U.S. at 58, 87 S.Ct. at 796.
The consistent interpretation of Sailors and Hadley over the last three
decades reinforces this court's conclusion that the Supreme Court long
ago established that "one person, one vote" does not come into play when
officials are appointed rather than elected. A few years after Hadley, a
plaintiff challenged a scheme whereby voters elected local school boards,
each of which then selected two of its members as representatives to a
central school board. See Rosenthal, 497 F.2d at 727. The Second Circuit
recognized that the central question determining the applicability of the
"one person, one vote" principle was whether the board members were
appointed or elected. See id. at 729 ("But the question remains whether
within its rationale, the members of the central high school board are
`appointed' or `elected' officers[.]"). Concluding that the method of
selection was something of a hybrid, the court remanded the case to a
three-judge district court panel to make the critical determination. See
id. On remand, the district court also explained that the important
question was the nature of the position's selection: "The emphasis we put
on popular election as the test echoes the Supreme Court's recognition
that the crucial factor in the application of Fourteenth Amendment
considerations to any apportionment scheme is that the officials whose
election is challenged must have been elected by popular vote." Rosenthal
v. Board of Educ., 385 F. Supp. 223, 226 (E.D.N.Y. 1974) (citing Hadley,
397 U.S. at 54, 90 S.Ct. at 794), aff'd 420 U.S. 985, 95 S.Ct. 1418, 43
L.Ed.2d 667 (1975). Only last year, Judge Mukasey wrote that "[t]he Zone
person, one vote' principle, however, has no applicability when the
governmental body at issue is appointive rather than elective." Warden
II, 35 F. Supp.2d at 360 (citing Sailors and Hadley). This court reaches
the same conclusion.
The plaintiffs challenge to thirty years of precedent is unsuccessful;
notwithstanding plaintiffs protestations to the contrary and alterations
of Sailors's language in support thereof, Sailors clearly and
definitively decided the issue on which her case purports to rest.
Because the complaint states a claim relying solely on an argument
rejected by the Supreme Court, it fails to state a claim. The Board's
motion is therefore granted and plaintiff's complaint is dismissed.
The Clerk of the Court is directed to enter judgment accordingly.