Opinionfork
court of 2ppeals
3. Me. 254. 67 ,
Jerry lannucei & ano.,
Plaintiffs -Respondents,
rs.
The Board of 3upervisors of the
County of Washington,
Appellant,
and
The State of New York,
Defendant -Respondent
3. ?In' 255. '6'?
The Varatogian, Inc., d ano.,
Plaintiffs -Respondents,
vs.
Board of Supervisors of the
County of Saratoga,
Defendant -Appellant,
and
The State of New York & ano.,
Defendants -Respondents,
and
Harry D. Snyder, Jr., Supervisor
of the City of laratogs Springs,
Intervenor -Defendant -Respondent.
FULL►, CH. J.: If
OPINION
UNREVISED AND
UNCORRECTED. NOT
FOR PUBLICATION.
In these two reapportionment cases, the courts below have struck
down as unconstitutional the weighted voting plans which had been proposed
to correct the conceded malapportionment of the Boards of Supervisors of
Washington and Saratoga Counties.
In the Washington County case, the plaintiffs are residents, tax-
payers and property owners of the Town of Kingsbury in that county and, in
the Sdratoga County case, the plaintiffs are property owners and t4xpayers
of the City of Saratoga Springs. In each case, the plaintiffs instituted
these actions seeking (1) a declaratory judgment that the apportionment of
the Board of Supervisors of their respective county was unconstitutional and
(2) an order directing the Board to submit a valid plan of apportionment.
It was not disputed that, as prescribed by section 150 of the County Law,
the municipalities in each county are equally represented by one member on
the Board of Supervisors, even though there is a great disparity in the
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populations of the several towns and citiel.l
In the Washington County litigation, the court at Special Term
held that the apportionment of the Board and section 150 of the County
Law, as applied, violated the one man -one vote rubric and were, accord-
ingly, unconstitutional. 'The Board was directed to prepare and submit a
permanent plan of reapportionment but was permitted, in the interim, to
function as it was presently constituted. The Board thereupon adopted what
it terms an "Adjusted Weighted Voting Plan" which provides that each town
is to be represented on the Board by at least one supervisor who will be
entitled to cast one vote for every 279 persons residing in the town, up
to a maximum of 15 vanes. The membership of the Board would be enlarged to
allow for additional supervisors from those towns with populations large
enough to warrant more than 15 votes. Thus, Kingsbury, the largest town,
would be represented by three supervisors who would a&ch cast 13 votes,
for a total of 39. Dresden, Hampton and Putnam, the smallest towns, would
each be represented by one supervisor who would cast two votes and the most
votes cast by any single member of the Board would be the 14 allotted to
the supervisor from Creenwich.
Shortly after the action was commenced in Saratoga County, its
Board of Supervisors adopted a so-called "Fractional -Weighted Voting Plan"
which, generally speaking, follows the same pattern as the one for
Washington County. This plan provides that eagh.town and city will be
represented on the Board by at least one supervisor who will be entitled
to cast one vote for every 600 persons residing in the municipality, up to
a maximum of 20 votes. The membership of the Board would be enlArged to
1. In Washington Counter;. the town populations vary from 119012 for Kings-
bury to 426 for Dresden and, in Saratoga, the populations differ from about
16,000 for the City of Saratoga Springs to some 500 for the Town of Day.
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tallow for an additional supervisor from Saratoga Springs which has a pop-
ulation large enough to warrant more than 20 votes. Specifically,
Saratoga Springs would be represented by two supervisors who Vo'dld each
cast 14 votes for a total of 280 while Providence, Edinburg and Day, the
smallest towns, would each be represented by one supervisor who would cast
one vote; the most.votes cast by any single member of the Board would be
the 16 allotted to the supervisor from the Town of Moreau.
The court at Special Term found each weighted voting plan unac-
ceptable, on constitutional $rounds, because, in its words, the plan, in
practice, "virtually strips the smaller towns of a true voice on the board,
Each Board was ordered to submit a plan other than one involving weighted
voting and the Appellate Division affirmed both orders .2
There is no doubt that, as presently constituted, both Boards of
Supervisors are malapportioned. Equal representation on the ,Boards of
municipalities with populations that vary from a few hundred to many
thousands does not satisfy the 1°one person, one vote" principle announced
in E2�2 lds v. Sims (377 U.S. 533) and, although the United States Supreme
Court has not as yet passed upon the question (see, e.g., Dusch v. Davis,
386 U.S. , _,.35 USLW 4461 [decided May 21, 1967; Avery v. Midland
County, 406 S W 2d 422, cert. granted 386 U.S. _, 35 USLW 3437 [decided
June 12, 1967]), we have expressly held that the rule of the Sims case
applies to local "elective legislative bodies exercising general govern-
mental powers". (Seaman Fedourich, 16 N Y 2d 94, 101; see, generally,
Weinstein, The Effect of the Federal Reapportionment Decisions on Counties
2. Although the Appellate Division granted permission to appeal to this
court, such leave was unnecessary since the appeals lay as of right on the
basisill;
f the constitutional questions involved. (CPLR 5601, subd. [b],
par. see Graham' V. Board of Su ervisors of Erie County, 18 N Y 2d 672
Michll v. Sha`nkllin, 17 N Y 2d 906. See, also, CPLR 55209 subd. [b].)
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an d Other Forms f Municipal. government, 65 Col. Rev. 21.) The present
imbalance on the 3oards is directly attributable to the County Law which
provides that the Supervisors of the several cities and towns in each
county, without regard to population differences, "shall constitute the
board of supervisors of the county" (§150) and that the Board shall con-
duct its business "by the affirmative vote of a majority of [ fit) ;:0tat
membership" (§153, subd. 4). Quite clearly, therefore, these sections Iof
the County Law, as applied to Saratoga and Washington Counties, are viola-
tive of constitutional requirements. (See Michl v. Shanklin.,17 N Y 2d
906; cf. Graham v. Board of Supervisors of Erie County, 18 N Y 2d 672;
see, also, McGill v. Board of Supervisors of Niagara County, 19 N Y 2d
860.) In the absence of a valid statute establishing the organization and
composition of the Boards of Supervisors of those counties, the Boards
should be directed to reapportion themselves in accordance with t1ke powers
granted to them by the Municipal Home aIle Z,s.w (§o�� subd. [i.ij, par. fn)
Cal).
The Supreme Court recently observed that all of the consti.ttational
principles which govern the apportionment of state legislatures are not
necessarily applicnbi.e to the organization of local governments. In
Sailors V. Board of Education of the County ofKent (386 U.S. 35 USi,U
A
4463-4464), the court remarked:
"Viable local governments may need many innovations,
numerous combinations of old and new devices, great flexi-
bility in municipal arrangements to meet changing urban
conditions. We see nothing in the Constitution to prevent
experiementation.t°
And, in Dusch v. Davis(386 U.S.
..�.�.. , 35 US LW 4461, supra), the court ap-
proved Virginia Beach's "experimentation" in local government. The City
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of,Virginia Beach had consoli l;tted with an adjoining county, which was
both rural and urban+under a lorough form of government. A plan was
adopted, by'which all of the members of the City Council were elected at
large, it being provided, however, that at least one councilman was re-
quired to reside in each of the city's seven boroughs. This plan was said
to properly "reflect a detente between urban and rural communities that
may be important in resolving the complex problems of the modern megapolis"
(386 U.S., at ? USLW at ,
' p• • , p. 4462• see also Matter of Blaikie v.
Power, 13 N Y 2d 134, app. dsmd. 375 U.S. 439).
It might appear, on first impression, that the modified weighted
voting plans before us were designed to accomplish almost the same objec-
tive ae the scheme underlying the Virginia Beach plan - i.e., to assure
that -sparsely populated areas have a voice in the councils of government.
However, as we noted in the Graham case (18 N Y 2d 672, 674, sura), any
method of allocating votes among representatives in proportion to popula-
tion is liable to have bidden "inherent defects". Although the small towns
in 4-e,"nty would be separately represented on the board, each might
actually be less able to 'affect the passage of legislation than if the
county were divided into districts of equal population with equal repre-
sentwtiow an the board and several of the smaller towns were joined to-
gether in a single district. (See Banzhaf, Weighted Voting Doesn't Works
A Matbewattcal Analysis, 19 Rutgers L. Rev. 317.) The significant standard
for mcaasuring a legislator's voting power, as Mr. Banzhaf pointe out, is
not the number or fraction of votes which he may cast but,JraVher, his
by his vote, to affect the passage or defeat of a measure"
(19 Rkrtgors L. Rev., at p. 318). And he goes on to demonstrate t4i� a
i
weighted voting plan, while apparently distributing this voting power in
proportion to population, may actually operate to deprive the smaller towns
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of what little voting power they possess, to such an extent that some of
them might -be completely disenfranchised and rendered incapable of affect-
ing 8ny legislative determinations :,L all (19 Rutgers L.'Rev., at pp. 325-
338).
Of course,' in any weighted voting scheme, those representatives
who cast the larger aggregates of votes can be expected to have greater
influence with their colleagues than representatives with only a Bingle
vote. We find nothing unconstitutional in a disparity of influence among
the various members of a county board of supervisors. In every legislature
there will be some
members who,
because of
particular expertise,
wealth,
Political office, a
6
for probity
and the like, will be
found to
of what little voting power they possess, to such an extent that some of
them might -be completely disenfranchised and rendered incapable of affect-
ing 8ny legislative determinations :,L all (19 Rutgers L.'Rev., at pp. 325-
338).
Of course,' in any weighted voting scheme, those representatives
who cast the larger aggregates of votes can be expected to have greater
influence with their colleagues than representatives with only a Bingle
vote. We find nothing unconstitutional in a disparity of influence among
the various members of a county board of supervisors. In every legislature
there will be some
members who,
because of
particular expertise,
wealth,
Political office, a
reputation
for probity
and the like, will be
found to
exercise pore sway than others in the passage or defeat of legislation
and, when weighted voting is employed, such influence might well attach to
the representatives from the larger constitgencies who cast the larger
aggregates—of votes.
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 cblleagues, 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 iegislator who was entitled to cast 60% of
the votes; Although his vote would apparently be weighted only in propor-
tion 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 mathe--
mat.ical.l impossi.hle 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
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10 illative 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 weightedvoting 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 caft r° L_.,jgle
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.
Unfortunately, it is not readily apparent on its face whether
either of the plans before us meets the constitutional standard. Nor will
practical experience in the use of such plans furnish relevant data since
the sole -criterion is the mathematical voting power which each legislator,
Possesses in theory - i.e., the indicia of representation - and not the
actual voting power he possesses in fact - i.e., the indicia of influence.
In order to measure the mathematical voting power of each member of these
county boards of supervisors and compare it with the proportion of the
population which he represents, it would be necessary to have the opinions
of experts -based on computer analyses. The plans, then, are of doubtful ,
constitutional validity and to establish the facts one way or another
would be most expensive. In our view, it was incumbent upon the Boards
to come forward with the requisite proof that the plans were not defec-
tive. (See, e.g., Conner v. Johnson, 265 F. Supp. 492, 493-494;"Swann v.
Ad, ams,•2b3 F. Supp. 225, 226.) Since this was not done, the courts below
correctly determined that the plans were invalid.
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M ... .• W
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is true that, in Johnson v. City of Niraw York (274 N.Y. 411
430),-rur court declared that reapportionment legislation "should not be
declared unconstitutional unless it clearly appears to be so; all doubts
should be- resolved in favor of the constitutionality of an act." However,
that -pronouncement must be judged in the light of the situation actually
presented..- The Johnson case involved the issue whether the so-called yisre
System of Proportional Voting violated the constitutional provigion that
each voter was entitled to vote for "all officers" standing for election
in a particular district. In the first place, the mechanics of the Hare
System were fully understood by the court and, in the second ploce, there
was no factual dispute about the operation of the system which could be
resolved-vcvly by resort to higher mathematics and at great expense. The
case tmrinod on the interpretation to be accorded the wor(V� "all officers,"
and tine court was simply not convinced by the arguments, of those who
attacked the plan, that the phrase "all officers" - should be given a
broad readiing.
--Im the cases before us, on the other hand, there is no problem
of interpretation or construction. If the smaller towns have been sub-
stanti,mllyT-deprived of the voting power to which they are entitled, the
plans would unquestionably be violative of the one man -one vote principle.
Consequently, the only issue calling for resolution is the factual one
pertaining to the mathematical structure of the plans. At the very leaet,
there is a significant possibility tt134t the plans are actually defective,
and yet the Boards adopted them without obtaining the complicated and
expensiveinmathematical analyses that would establish the facts one way
or the other.
Under these circumstances, the Boards are not entitled to rely
on a presumption that their legislative acts are constitutional. Such a
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pr-estimpti_on - and that was the sort of presumption reflected in the
J-hrison case (274 N.Y. 411, supra) - 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. In the case be-
fore us, however, a considered judgment is impossible without computer
analyses and, accordingly, there is no alternative but to require.the
Boards to come forward with such analyses and demonstrate the validity'l
of the plans which they have submitted to the court at Special Term.
We may not overlook the very real danger in these reapportion-
ment cases of the courts being unnecessarily dragged into a "mathematical
quagmire" Baker v. Carr, 369 U.S. 1.86, 268 [,per Frankfurter, J., dissent-
ing)), understood only by experts using computers. It is claimed that,
if these counties were divided up into districts of equal population, the
smaller towns would, of necessity, lose their identity because they would
be combined with the larger industrial communities in the county, creating
districts thereby lacking in mutual sentiments and interests. This result,
however, is not inevitable; we have barely crossed the threshold in ex-
ploring the variety of devices which may be employed, consistent with the
constitutional mandate of one man -one vote, to assure that the points of
view of the smaller towns in the county will be heard on the Board of Super-
visors.
The order of the Appellate Division in each case should be
modified so as to provide that the respective Board of Supervisors adopt
and submit to the court at Special Term a constitutionally valid plan of
reapportionment within 60 days from the date of entry of this court's
order and, as so modified, affirmed, without costs.
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Iannucci V. Bd. of Supervisor
BRFITEL, J. (dissenting);
It is significant that the Court does not hold that weighted
voting schemes are per se unconstitutional, or even that the particular
plans sub judice deviate so much from the constitutional ideal of one man -
one vote as to be rendered invalid. Rather. the holdinz aRaumAa tha* *km
plans are of doubtful validity although the Supreme Court of the United
States has abstained deliberately from mandating the one man -one vote
doctrine on local legislative bodies and that, in the present cases, the
defendant counties have not satisfied 'the :bUrrden of demonstrating or pro-
ducing evidence that the plans are constitutional.
On these premises, there is no disagreement that there is in-
sufficient evidence before the Court to conclude that the present plans
are unconstitutional. As the Court recognizes, therefore, petitioners
have not come forward with evidence, mathematical or otherwise, sufficient
to justify a holding that these plans offend constitutional norms. Instead,
the burden of proof is shifted to the proponents of constitutionality on
the ground that weighted voting plans are of "doubtful constitutional
validity", an unusual and extraordinary procedure (McKinney's Cons. Laws
of N. Y., Statutes, 9 150; see, also, Fortson v. Dorsey, 379 U. S. 433, 439,
applying the rule to reapportionment; but see Swann v. Adams, 263 F. Supp.
225, 226 LS'. D. Fla7, holding that a State had the burden to justify popu-
lation variations and also holding without discussion that an undescribed
weighted voting plan for a State legislature was impractical and of doubtful
validity).
The Supreme Court of the United States has recently recognized
that the one roan -one vote doctrine should not be,applied with the same
precision to local elective bodies as to State legislatures (Sailors v.
I
Board of Educ, of County of Kent, 35 U. S. L. Week 4462, 4463-4464; Dusch
v. Davis, 35 U. S. L. Week 4461, 4462). This would appear to be a recogni-
tion that mathematical precision in this area may involve a correlative
sacrifice of socially and politically desirable values. Consequently, it
cannot be said that weighted voting plans are generically invalid, or that
there is or should be any presumption to that effect.
Most suggested alternatives to a weighted voting plan (of some
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formula), and especially those suggested in these cases, are undesirable.
either local bodies are to be composed of numerous members, with a com-
mensurate loss of deliberative capability, or the political voices of
small but discrete and geographically compact groups are to be over-
whelmed by combining the votes of their members with those of larger
groups in a single district.
Thus, a weighted voting scheme, qua weighted voting scheme,
cannot be condemned as of "doubtful constitutional validity". Such a
plan may be as viable politically and socially as any other alternative.
To be sure, the one man -one vote doctrine may not be ignored simply because
local subdivisions, rather than the State itself, are involved (see Seaman
v. Fedourich, 16 N Y 2d 94). If a weighted voting plan is shown to dis-
criminate unduly in favor of or against electors in one district or
another it should be struck down as unconstitutional. But the burden of
demonstrating, and of coming forward with evidence in the first instance,
that a particular plan is repugnant to the Constitution should remain on
those who make the claim.
Turning to the particular problems in the present cases, it
requires no refined analysis or computer assistance to understand that a
weighted voting plan, by giving a few representatives more votes than
their colleagues in a legislative. body, gives -them votes that are pro-
portionately more effective, simply because their multiple votes cast as
inseparable aggregates must therefore be more inf luentical. In fact, it
is not too difficult to understand that such a system gives the represent-
atives from the larger districts more effective voting power than would be
warranted under a strictly mathematical and thererore mechanical adherence
to the one man -one vote ideal. Consequently, the electors whom they
represent are thereby given, theoretically, a greater control through
their representatives than would otherwise be the situation. On the other
hand it is equally obvious that to atomize sectors of these populations
into numerous districts reduces the effectiveness of the local legislative
body and the deliberative participation by its members. If single -member
districts, without weighted voting, are to be mandated, and if legislative
bodies of reasonable size are to be retained, it will often be necessary
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to deprive territorially concentrnF-] and discrete groups of their own
representation by combining their votes with those of larger demographic
units.
Given these difficulties the solution should not be governed by
rigid constitutional limitations in assessing a weighted voting plan.
Rather the solution should be left to local experimentation and practical
compromises within reasonable limits or, better, to determination by the
State Legislature, itself reasonably apportioned under constitutional plans.
True, there may be some instances where the amount and kind of weighting in
a weighted voting plan or, for that matter, a multiple district plan, would
exceed constitutionally tolerable standards. If a multiple district plan
proposed a local legislative body of an unwieldy number of representatives
its members would be deprived of the effective power to act, let alone
deliberate. On the other hand, if a weighted voting plan were to give a
city or a single populous town in a county virtual power to enact or veto
legislation through one representative then that, too, would be patently
defective. But plans that do not approach dangerously close to these
extremes should be permitted, at least by way of experimentation.
Moreover, plans have been formulated whereby votes of the members
of the legislative body are so weighted as to compensate for the dispro-
portionately great power alleged.to be given to the representatives of
Populous districts. A study of this nature was undertaken and found
feasible by the Supreme Court of Wayne County in rejecting an unadjusted
weighted voting plan in Dobish v. State
�.._. ( Misc 2d ____^ CLivingston, J.,7),'
See, also, Town of Greenburgh V. Board of Supervisors of Westchester County
(53 Misc 2d 88, 97_99Nolan, J2'), suggesting a"modified" weighted voting
plan, whereby weighted voting and multiple -member district systems are
combined to produce a mathematically equitable result, but rejecting the
plan before it since it was predicated upon numbers of registered voters
instead of population in the districts.
Such a system might be the best solution to the dilemma with
which the Court is faced, making it necessary to choose between undesirable
alternatives. Unfortunately, however, the papers before the Court do not
demonstrate that such a system is mathematically feasible in this case.
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nut in the absence of any greater knowledGe, it cannot be said that the
legislative determination in favor of weighted voting under the formulas
sub judice, in preference to equally or more -undesirable alternatives, is
presumptively unconstitutional, in the absence of a clear demonstration .
that the disproportion created by the present formula is undue (see
Fortson v. Dorsey, 379 U. S. 433, 439, su�)•
Lastly, as for Mr. Banzhaf's helpful analysis, he modestly limits
its value to the mathematical consequences and mathematical evaluations of
weighted voting systems. He says, in his amicus brief, quite candidly,
that his mathematical models do not purport to present a realistic picture
of the actual operation of such systems "which of course would involve
factors such as party politics and urban -rural interests which are not
considered by these simple models". And that is what cases of this kind
are about.
Accordingly, I dissent and vote to reverse.
In each case: Order modified in accordance with the opinion herein and,
as so modified, affirmed, without costs. Opinion by Fuld, Ch. J. All concur
except Breitel, J. who dissents and votes -to reverse in an opinion in which
Van Voorhis and Burke, JJ., concur.
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