Appeal by the New York City Board of Estimate and individual members thereof, as well as two intervenors, from a decision of the United States District Court for the Eastern District of New York, Edward R. Neaher, Judge, on remand, holding that the fact that three members of the Board were elected citywide did not affect the 132.9% unconstitutional deviation under Abate v. Mundt existing between largest and smallest boroughs. Morris v. Board of Estimate, 592 F. Supp. 1462 (E.D.N.Y. 1984). Affirmed.
Oakes, Newman, and Pierce, Circuit Judges.
The Board of Estimate is a body of New York City municipal government authorized by chapter 3 of the New York city charter. It is comprised of the mayor, city council president, comptroller, and the five borough presidents of the City of New York, which is to a substantial extent governed by the Board of Estimate. The three citywide officials on the Board are granted two votes each as to non-budgetary matters, while each borough president is granted one vote. As to budget matters, the mayor has no vote but does have a veto power. The Board of Estimate is the only municipal body in New York City government which requires the mayor, the comptroller, the city council president, and the borough presidents to meet regularly and vote together upon issues concerning the governing of New York City. It exclusively determines the use, development, and improvement of city property; approves the standards, magnitude, and final design of capital projects; negotiates and enters into all contracts on behalf of the city; negotiates and approves all franchises granted by the city; grants leases of city property and enters into leases of property for city use; sets water rates and sewer rates in the city; approves or modifies all zoning decisions; and sets tax abatements. The Board's enormous exclusive powers may be illustrated by saying that it alone may determine whether and where a toxic waste dump can be located in the city, as we explore later in this opinion.
Besides the Board's exclusive powers, it has powers acting in conjunction with the New York City Council to recommend and approve the expense budget and the capital budget of the city (without the participation of the mayor), periodically to modify the budgets of the city, to override mayoral vetos of budget items, and to hold hearings on budgetary matters. The Board of Estimate also administers the Bureaus of Franchises and of the Secretary, holds public hearings on matters of city policy when called upon to do so by the mayor or in its discretion for the public interest, holds hearings on tax abatements, and makes recommendations to the mayor or City Council in regard to any matter of city policy. The parties stipulated that the population of the city of New York is 7,071,030, and that the population of Brooklyn is 2,230,936, Queens 1,891,325, Manhattan 1,427,533, the Bronx 1,169,115, and Staten Island 352,121.
Having determined that the Board of Estimate is subject to the "one-person, one-vote" principle, we remanded this case when it first came before us with instructions that the district court begin its task by deciding on an appropriate methodology for determining the degree of malapportionment present. Morris v. Board of Estimate, 707 F.2d 686, 690-91 (2d Cir. 1983). In a footnote our opinion noted, "For example, the fact that three members of the Board are elected at large from the entire city raises novel issues as to how an individual voter's opportunity to elect these members should be assessed in conjunction with his opportunity to elect his borough representative." Id. at 690 n.3. The district court, following the principle articulated in Abate v. Mundt, 403 U.S. 182, 185, 29 L. Ed. 2d 399, 91 S. Ct. 1904 (1971), that "electoral apportionment must be based on the general principle of population equality and [that] this [principle] applies to . . . local elections," Morris v. Board of Estimate, 592 F. Supp. 1462, 1466 (E.D.N.Y. 1984), determined the maximum deviation from equality, or "overall range,"*fn1 by taking the sum of the deviation from ideal district population of the most and least populous boroughs. The court refused to modify the Abate methodology by virtue of the presence on the Board of three officials elected at-large, and focused only on the five borough presidents. Measuring from an ideal district population of 1,414,206, the court calculated the deviation from equality thus:
Borough Population Deviation
Brooklyn 2,230,936 -57.7%
Manhattan 1,427,533 -0.9%
Staten Island 352,121 .2%
Adding the 57.7% deviation of Brooklyn as the most underrepresented borough to the 75.2% deviation of Staten Island as the most overrepresented borough, the court arrived at a maximum deviation or range of 132.9%. Id. at 1475.
We commence by noting that the district court did not violate what we read as the mandate of this court in declining to consider citywide board members in determining the constitutionality of the present Board. In the first place, what we said earlier was imply that the district court should address the question whether the presence of the three members of the Board who are elected at large from the entire city should make a difference in respect to methodology. The district court did address that question at considerable length and answered it in the negative. The court did so for three reasons which, though briefly summarized here, will be more fully discussed below. The district court argued convenience, mentioning the "demonstrated impatience with mathematical metaphysics" in Mahan v. Howell, 410 U.S. 315, 319 n.6, 35 L. Ed. 2d 320, 93 S. Ct. 979, modified on reh'g, 411 U.S. 922, 36 L. Ed. 2d 316, 93 S. Ct. 1475 (1973); principle, in that the at-large members represent voters as city residents, ...