Appeal from an order of the United States District Court for the Eastern District of New York, Jacob Mishler, Judge, granting defendants' motion for summary judgment and dismissing the complaint on the grounds that Nassau County Local Law 2-1982, which reapportioned the Nassau County Board of Supervisors' weighted voting system, is constitutional. Judgment affirmed.
Before: OAKES and MESKILL, Circuit Judges, and NEAHER, District Judge.*fn*
Plaintiffs, the League of Women Voters ("League") and five members, appeal from a judgment of the United States District Court for the Eastern District of New York, Jacob Mishler, Judge. Plaintiffs had sued the Nassau County Board of Supervisors ("Board") and its six member supervisors, charging that Nassau County Local Law 2-1982, which reapportioned the Board's weighted voting system after the 1980 census, violated the equal protection clause of the fourteenth amendment to the United States Constitution. After rejecting that constitutional challenge, Judge Mishler granted defendants' motion for summary judgment and dismissed the complaint.
While agreeing with that disposition, we find that it was unnecessary to reach plaintiffs' equal protection argument because, aside from one meritless issue, this case is controlled by the Supreme Court's earlier decision in Franklin v. Krause, 344 N.Y.S.2d 885 (1973), appeal dismissed, 415 U.S. 904 (1974). Accordingly, we affirm but on the basis of that prior Supreme Court summary adjudication.
New York State's Nassau County is governed by the Board, whose six members are the chief executives of the cities of Glen Cove and Long Beach, and the Towns of Hempstead, Oyster Bay and North Hempstead.*fn1 Since 1917, the Board has used a weighted voting system,*fn2 which has been the subject of other litigation.
In Franklin v. Mandeville, 308 N.Y.S.2d 375 (1970), a case early in reapportionment jurisprudence, the Board's weighted voting plan was also attacked as unconstitutional. Then, as now, despite having a majority of Nassau County's population, the Town of Hempstead was assigned less than a majority of the weighted vote. The New York Court of Appeals held that that allotment violated equal protection.
"[T]he Town of Hempstead's population constituted 57.12% of the county's population but that town's representatives may cast but 49.6% of the board's vote. Important as is . . . the present inequality, it is of even greater moment that inequality in some degree is mandated and, indeed, perpetuated by the charter provision: "nor shall the supervisor or supervisors of any town or city be entitled to cast more than fifty per centum of the total vote of said board." (L. 1936, ch. 879, § 104, subd. 2.) This provision . . . clearly violates the one man, one vote principle. . . . Not only are the Hempstead Supervisors presently barred from . . . a majority vote, but section 104 would continue to deprive them, or the residents of any other town or city subsequently containing a majority of the county population, from majority representation, . . ." Notwithstanding that illegality, the New York Court of Appeals permitted the weighted voting system to continue until after the 1970 census, so that the new reapportionment plan would be accurately based. A computer analysis was performed, but yet another weighted voting system was proposed.That proposal was contained in Nassau County Local Law 13-1972 ("Local Law 13-1972") to amend Nassau Government Law § 104 ("§ 104").
Outlining the provisions of Local Law 13-1972, one court during the period stated:
"The new plan . . . is embodied in Local Law No. 13-1972. It continues a structure of town and city Supervisors sitting as Board members, the mandatory decennial reallocation of votes and use of a weighted voting system. . . .
"In fixing the standards for allocating votes, the new law provides that the "voting power" of a Supervisor shall be measured "by the mathematical possibility of his casting a decisive vote on a particular matter." It then equates a town's or city's "voting power" with that of its Supervisor, or, in the case of Hempstead, with the total voting power of its two Supervisors.
"Furthermore, 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, . . . the new plan requires that in preparing each reapportionment . . . [the] Board shall employ "an independent computerized mathematical analysis' and any other methods which shall "most nearly analyze" the percentages of voting power and population.
"Paragraph 5 of the new law turns from general standards to specific allocation of votes based upon the 1970 census data."
Franklin v. Krause, 338 N.Y.S.2d 561, 563 (N.Y. Sup. Ct. 1972), rev'd, 344 N.Y.S.2d 885 (1973), appeal dismissed, 415 U.S. 904 (1974).*fn3
The referred-to paragraph five provided:
"Based on the nineteen hundred seventy federal census the number of votes in each of the following categories is . . . fixed as follows:
"a. For matters requiring a majority of the voting strength of the board of supervisors or a majority of the total voting power of the board of supervisors:
"(1) Total number of votes 130
"(2) Distribution of votes
Presiding Supervisor of Hempstead 35
Supervisor of Hempstead 35
Supervisor of Oyster Bay 32
Supervisor of North Hempstead 23
Supervisor of Long Beach 3
Supervisor of Glen Cove 2
"(3) Votes required for passage 71"
That allocation resulted in the following deviations:
Municipality Population Population Power Deviat ion
Hempstead 801,592 56.2 54.6 -1.6
Oyster Bay 333,342 23.1 20.4 -2.7
No.Hempstead 235,007 16.5 13 .0 -3.5
Long Beach 33,127 2.3 5.6 .3
Glen Cove 25,770 1.8 5.6 .8
The maximum range of deviation was 7.3%, i.e., North Hempstead's - 3.5% computed with Glen Cove's 3.8%.*fn5
Importantly, Local Law 13-1972 still left the Town of Hempstead without a majority of the votes (having 70 when 71 was needed), despite the New York Court of Appeals' clear statement in Franklin v. Mandeville, 308 N.Y.S.2d at 377. Not surprisingly, the new plan was challenged as constitutionally deficient.
In a conceded turnabout, the New York Court of Appeals in Franklin v. Krause, 344 N.Y.S.2d 885, 892 (1973), held that the weighted voting system under Local Law 13-1972 had "no constitutional infirmity." In reaching that decision, the Court of Appeals acknowledged and endorsed the evolution of reapportionment law, especially in regard to local government.
"[W]hile the Town of Hempstead Supervisors together possess 70 votes, more than a majority of the total 130, they cannot have 55% voting power which would ordinarily be 100% voting power in a "pure majority" situation. This admittedly artificial voting requirement . . . gives the Town of Hempstead a greater disenfranchisement than . . . in certain voting combinations.
"This is precisely the point which caused our rejection of the former plan. . . . At the time that decision was handed down, the preachment was that one man, one vote had to be applied at all levels of government with mathematical certitude and this court was concerned with the scope of Hempstead's disenfrancisement.In the intervening years this stricture has been considerably softened with respect to local level government and this reshaping is most desirable, as demonstrated in the case at bar."
The Franklin v. Krause plaintiffs, with the League intervening, appealed to the Supreme Court. Before doing so, however, they moved to amend the remittur. The New York Court of Appeals granted the motion, thereby clarifying that the constitutionality of Local Law 13-1972 had indeed been decided.
"[T]here were presented, and necessarily passed upon, questions arising under the Constitution of the United States, viz: (1) whether Local Law No. 13-1972 of Nassau County is unconstitutional because it deprives plaintiffs of the equal protection of the laws as well as due process of law . . .; and (2) whether said Local Law, because it utilizes weighted voting, is unconstitutional per se in that it violates the plaintiffs' right to equal protection of the laws and to due process of law. . . . The Court of Appeals held there was no violation of any of plaintiffs' constitutional rights."
Franklin v. Krause, 348 N.Y.S.2d 554 (1973).
The Supreme Court received the case under its mandatory appellate jurisdiction, 28 U.S.C. § 1257(2), but dismissed for want of a substantial federal question.Franklin v. Krause, 415 U.S. 904 (1974). Thus, the constitutional guantlet of Nassau County's weighted voting system was evidently ended, and the provisions of Local Law 13-1972 became effective on January 1, 1976 as part of § 104.*fn6
The constitutional calm was brief. Section 104(3) provides:
"In accordance with . . . subdivision four . . ., the board of supervisors shall, not later than six months after the publication of the results of each federal decennial census by appropriate amendment to subdivision five . . ., propose a reapportionment of the voting power. . . ."
"g. The percentage of voting power of each town and city . . . shall approximate the town's or city's percentage of the total county population.
"h. In preparing each reapportionment, the board of supervisors shall employ an independent computerized mathematical analysis and such other . . . methods as shall most nearly equalize the percentage of voting power of each town and city to its percentage of the total county population."
As required by those provisions, after the 1980 census and a computer analysis, the Board was to be reapportioned by an amendment to § 104(5). The amendment eventually enacted was Nassau County Local Law 2-1982 ("Local Law 2-1982") -- ostensibly, the focus of this lawsuit. Except for mathematical adjustments reflecting Nassau County's population changes since the 1970 census, Local Law 2-1982 is a verbatim version of § 104(5) as originally embodied in paragraph five, supra, of Local Law 13-1972.
"Based on the nineteen hundred eighty federal census, the number of votes in each of the following categories is . . . fixed as follows:
"a) For matters requiring a majority of the voting strength of the board of supervisors or a majority of the voting power of the board of supervisors:
"(1) Total number of votes 108
"(2) Distribution of votes
Presiding Supervisor of Hempstead 30
Supervisor of Hempstead 28
Supervisor of Oyster Bay 22
Supervisor of North Hempstead ...