Westchester County has a total population, according to its 1965 special census enumeration, of 853,198. It contains 18 towns and 6 cities. The towns range in population from 82,882 in Greenburgh to 2,924 in North Salem. Among the cities, Yonkers has the largest population with 201,573, and Rye has the smallest, with 15,232. In accordance with the provisions of the Town Law (§§ 10 and 20) which provide that each town in the county shall have a Supervisor, and the County Law (§ 150) and the Westchester County Administrative Code (L. 1948, ch. 852, § 12) which provide that the Supervisors of the several cities and towns shall constitute the Board of Supervisors, the board has 45 members, one from each town, 12 from Yonkers, 5 from Mt. Vernon, 4 from New Rochelle, 3 from White Plains, 2 from Peekskill, and 1 from Rye. When this action was commenced each supervisor had one vote, so that the Town of Greenburgh with 82,882 in population had no greater voting power in the board than North Salem, with 2,924, and less than any of the six cities except Rye although its population was greater than that of any of them, except Yonkers. It was to correct this inequity in representation that Greenburgh sought relief, claiming that its citizens were denied equal protection of the laws, as guaranteed by the Fourteenth Amendment to the Constitution of the United States, and t section 11 of article I of our own Constitution, whose equal | protection clause is as broad in its coverage as that of the l Fourteenth Amendment. (Dorsey v. Stuyvesant Town Corp., 299 N. Y. 512, 530, 544.) On January 13, 1966, the plaintiffs Town of Greenburgh and its Town Board were granted relief, by way of summary judgment, declaring the apportionment of voting power in the board to be unconstitutional. The court, however, did not declare the provisions of the Town or the County Laws, or the Administrative Code unconstitutional insofar as they provided for the composition of the Board of Supervisors, or grant other relief requested, but provided that the board might have a further opportunity to adopt a plan
On April 18, the board adopted a local law providing for an apportionment plan, which was submitted to the court for approval. That plan was rejected, again because of inequities in representation, as between the towns and cities, an interim weighted voting plan was directed to be put into effect, weighting the vote of each Supervisor, in proportion to the population of his constituency, and the parties to the action were given leave to seek further relief on or after December 1, 1966, or prior to that time if the board should adopt a permanent apportionment plan (Town of Greenburgh v. Board of Supervisors, 51 Misc 2d 168.)
On October 3, the Committee on Legislation of the Board of Supervisors submitted its report recommending that the board submit two plans designated as Plan No. 7 and Plan No. 8 to the court for review, before the adoption of a local law. The board did not adopt the recommendation in its entirety, but did submit Plan No. 8 for approval by motion returnable on October 14. On that date the individual plaintiffs, members of the League of Women Voters of Westchester County, were permitted to intervene. However, since no public hearing had been held with respect to the proposed local law, and it had not been adopted, decision of the motion for approval was held in abeyance pending further action by the board. Thereafter and on November 21, 1966, the Board of Supervisors adopted the proposed law, which was disapproved by the County Executive on November 28, and repassed over his veto on the same day. Since that date hearings have been held by the court and the controversy has been fully submitted. The court is now required to determine whether the local law meets constitutional requirements for full and effective citizen participation in the political processes of the county’s legislative body. (Cf. Gray v. Sanders, 372 U. S. 368; Reynolds v. Sims, 377 17. S. 533; Seaman v. Fedourich, 16 N Y 2d 94.)
The local law adds nine additional legislators to the board, increasing the number from 45 to 54, and distributes legislative seats and voting power according to a “ modified weighted voting ” plan, which retains the towns and cities of the county, as the districts from which the legislators are to be elected, and purports to equalize the voting power of the legislators by providing multiple votes for all legislators and additional legislators for the larger towns, so that the vote of the legislator or legislators from each district is substantially proportional to the population of the district which he or they represent. A detailed
According to the plan, if approved, there will be 11 towns which will be single member districts (districts with a single representative) and 7 towns which will be multimember districts (districts in which two or more representatives will be elected at large). Additional representatives have been allotted in the multimember districts substantially on the basis of one for each additional 18,000 or major fraction thereof, in population. Votes have been assigned to each legislator on the basis of one for each 1,000 in population, and each remaining major fraction of 1,000. In the cities there will be one single member district, three multimember districts, and two districts, Yonkers and New Rochelle, in each of which representatives will be elected from wards, in accordance with city charters. The number of representatives from the cities could not be changed consistently with relevant statutes, since the charter of each
Since the commencement of this action, the positions of the parties have changed. The Town of Greenburgh and its officials, who were the original plaintiffs, and who were granted judgment declaring the voting power of the Board of Supervisors, as it was distributed at that time, to be unconstitutional, now take the position that the local law, since adopted, is constitutional, and the Town of Yorktown has apparently taken the same position. The County Executive, although he has not chosen to express his present views through counsel, other
Before discussion of the constitutional questions, however, it should be stated that they are the only questions which may be considered. Unquestionably the administration of the local law will involve complications which would not be encountered if the law had provided for representation on the board by legislators elected from districts of equal population. Unquestionably, also if the Board of Supervisors had decided to adopt such a plan, providing for properly constructed districts, and equal representation therefrom, the constitutional objections to the present law would have been avoided. Perhaps other plans could be adopted which might appear to be more desirable from the viewpoint of some residents of the county, and perhaps there is no longer any need, nor is it desirable to retain the towns and cities as the districts from which legislators should be elected to the county board. However, questions of wisdom, desirability, need or appropriateness are for the legislative branch of the government, and not for the courts to determine. The sole function of this court, at least at present, is to determine whether the local law fails to meet constitutional requirements for population based representation, on the county Board of Supervisors. ‘1 Representative government is in essence self-government through the medium of elected representatives of the people, and each and every citizen has an inalienable right to full and effective participation in the political processes of his State’s legislative bodies.” (Reynolds v. Sims, 377 U. S. 533, 565, supra.) Each citizen has, of course, the same right with respect to the processes of his county Board of Supervisors (Seaman v. Fedourich, 16 N Y 2d 94, supra). That right will be denied him, unless he can exercise through his elected representative, an influence on legislative determinations equal to that of any other resident of the county.
It is contended that the citizens of Westchester County, and in particular those who reside in the smaller electoral districts will be deprived of proper representation and of equal legislative influence through the combination of weighted voting and multiple representation employed in the local law. Whether they will, or will not suffer such deprivation depends on the
Whether population has been submerged in the plan presented by the local law, as the controlling consideration, may be fairly debatable. One of the dominant purposes of the plan is to continue to give separate representation in the board to the residents of each town, and each city in the county, by retaining the town and city Supervisors as members of the board, with the result that inconsistencies appear in the apportionment of legislative seats which would not be present if a plan had been adopted providing for equal representation from districts of equal population. Although additional legislators are assigned to the larger towns, roughly on the basis of one for each 18,000 residents, a single legislator is assigned to each of the small towns with population ranges of from 13,666 to 2,924. In the cities, New Rochelle, with a greater population than Mt. Vernon, has 4 legislators, to 5 for Mount Vernon, and Peekskill, with 18,504 residents, has 2 legislators. Nevertheless the legislators with the smaller constituencies have less votes in the board, and the assignment of votes, or voting power, is strictly proportional to populations. Such being the case if the assignment of legislative seats and voting power may be sustained it does not appear that population has been unduly submerged as a controlling circumstance, within the meaning of the requirements of the “ one person, one vote rule.” However, when tested by established rules, the plan presented in the local law is clearly unacceptable. Throughout the course of this action, until the present law was submitted for approval, all parties realized that no evidence had been produced as to the populations of the wards in the City of Yonkers, and in New Rochelle. However they were apparently satisfied, perhaps relying on the presumption of regularity which attaches to the acts of public officers, that the wards of these cities were of substantiallly equal population, and no complaint was made of the allocation of 17 votes to each Supervisor in Yonkers, and 19 to each in New Rochelle. It has now been asserted and conceded, however, that in the City of Yonkers the ward lines are not drawn on the basis of population but are drawn so
This discussion might well end here if it were not for the fact that the opponents of the local law have advanced additional arguments with respect to the employment of weighted voting and multimember representation as a permanent remedy for legislative malapportionment. Although determination of the issues so raised may not be necessary, some discussion of them may be helpful in facilitating appellate review.
It must be conceded that plans involving weighted voting, and multimember electoral districts are not constitutionally acceptable if they do not do at least what they purport to do, that is, if they do not allocate effective voting power to legislators in proportion to the population that each represents. It is asserted that they do not, and that such plans inevitably result in discrimination, and are inherently unconstitutional devices for curing malapportionment in legislative bodies.
Both devices have features in common, and are similar in theory in that both are employed as corrective measures to remedy disparities in voting power in districts of unequal population. For instance, in a hypothetical case involving four districts, A, B, O & D, each represented by a single legislator with a single vote, if each of Districts A, B, & O has a population of 400, and D has a population of 2,500, it is apparent that the vote of a resident of District A, B, or C has a greater weight than the vote of a resident of District D. In District D, obviously, the citizens, each of whom has a vote of 1/2500 of the total vote of his district, must vote a greater number of times than the citizen in District A, B, or C, before the effect of their voting is equivalent. The effect of the overweighting of the votes of the citizens of the smaller districts, in terms of legislative representation, is apparent, since the residents of Districts A, B, & O can elect three representatives who can outvote the single representative from District D, even though he represents 2,500 constituents, and they represent only 1,200. Although the cited case is hypothetical, a comparable situation existed in the Board of Super
Under the multimember or modified weighted voting plans the result might be different. Since the six votes will no longer be cast, necessarily, as a block, the representatives of Districts A, B, & 0 may have an effective and meaningful vote in a situation in which the representatives of District D cast conflicting votes. Other situations may exist, under which the weighting of votes will be entirely ineffective. For instance in the case of five districts, four of which have 300 residents and one of which has 100, it will make no difference whether each district has a representative with one vote, or whether four have representatives with 3 votes apiece, and the one-hundred resident district is given a representative with 1 vote. In either case, each representative has equal voting power, since the vote of three representatives will be required to make a majority. The same result will follow in all similar situations. There are many other hypothetical situations, and undoubtedly some exist, which also demonstrate that the actual voting power of a legislator is not necessarily equivalent to the number of votes which he casts in the legislative body. The argument has merit, therefore, that the voting power of a legislator, and consequently the effective legislative repre
It is nevertheless contended that there still exists an invidious discrimination against the residents of the smaller districts, in terms of effective citizen influence on legislative determinations. It is argued, that although as between districts of unequal population, each having a single representative, the citizen of the smaller district has greater voting power, and casts a more
Under this analysis, the citizen’s voting power is overweighted, to the extent that his representative is given votes, or his electoral district is given representatives, in excess of the number which would have been assigned, if votes or legislative seats had been distributed in proportion to district population square roots. Nevertheless it is obvious, and conceded that under any plan which employs electoral districts of substantially unequal populations, effective population-based legislative representation cannot be obtained by distributing legislative seats, or votes in proportion to population square roots. Whatever this may accomplish in giving a legislator voting power commensurate with that of the citizen, in his district, it will not give him a legislative influence, proportional to the population of the district which he represents. For instance, in the situation heretofore considered with Districts A, B & Ú having populations of 400 each and District D a population of 2,500, whether votes or legislative seats are to be distributed, 2, 2, 2 and 5, the results will
Table III, introduced by the opponents of the local law, and reproduced at the end of this opinion, is an analysis, supported by the testimony of qualified witnesses of the overrepresentation from the standpoint of citizen influence, of the various electoral districts, as compared with the least populous district, with 3 votes. Concededly, as has been stated, and as the table indicates this overrepresentation cannot be remedied by the allocation of votes or legislators on a square-root basis. The analysis is concededly theoretical, since it assumes that the legislators will react to an imaginary poll of their constituents, in voting- in the legislative body, and does not take into account many practical considerations which might affect legislative votes. However, it does indicate a potential influence which is not proportional to the citizen’s effective voting power in his electoral district, which is inherent in systems employing electoral districts of substantially unequal population, and which cannot be remedied, unless all county legislators are to run at large in the county, by any apportionment plan except one which employs only districts of equal population.
If the 1964 “ one person, one vote ” determinations of the United States Supreme Court mean precisely that, and the dominant right which is required to be protected is equality of voting power at the citizen level, as many of the broad statements in the opinions in those cases appear to indicate, nothing remains to be done except to direct the Board of Supervisors to subdivide the county into districts of equal population, and apportion the legislative seats accordingly, even though the difficulties in effecting such a plan are apparent.' However, perhaps because none has been asked to do so, no court of controlling authority has so far struck down a reapportionment law because of the potential discrimination disclosed by the calculations made by the witnesses who testified, and illustrated by the table above referred to, or even because of the disparities in effective influence, which may result from weighted voting proportional to population. The Supreme Court of the United States has approved the concept of multimember districting in a number of cases, and our Court of Appeals has approved it in at least one, although it does not appear that the argument here advanced was presented in any of them (see Fortson v. Dorsey, 379 U. S. 433; Burnette v. Davis, 382 U. S. 42; Harrison v. Schaefer, 383 U. S. 269; Crawford Co. Bar Assn. v. Faubus, 383 U. S. 271; Burns v.
The Supreme Court did state, however, in Fortson v. Dorsey (supra, p. 438), where the argument was advanced that a resident of one of seven subdistricts in Fulton County, (a large multimember district, in which the subdistricts were designated only as the basis of residence requirements) was discriminated against, because he had to join with residents of the other districts to elect a senator, whereas the residents of a single member district of one seventh the population of Fulton County did not: “ If the weight of the vote of any voter in a Fulton County district, when he votes for seven senators to represent him in the Georgia Senate, is not the exact equivalent of that of a resident in a single-member constituency, we cannot say that his vote is not ‘ approximately equal in weight to that of any other citizen in the State
Multiple member districting is at present provided for in several counties of this State in permanent reapportionment plans, recently adopted, and is clearly contemplated by subdivision 1 of section 8 of the Westchester County Charter (L. 1937, ch. 617, as amd.). Recently in Bianchi v. Griffing (256 F. Supp. 617) a three-Judge United States District Court in the Eastern District of New York, approved as constitutional, a modified weighted voting plan for Suffolk County, similar to that provided by the local law, and such laws are also in effect as permanent measures in some counties of the State.
Straight weighted voting (single member districts of unequal population, with the vote of each representative weighted in proportion to population) has travelled a much rougher road in this State. Although at times accepted, as a temporary, or stop-gap measure, it has been rejected almost as frequently as a permanent plan. A straight weighted voting plan did meet with both court and popular approval in St. Lawrence County, however, and laws providing for similar plans are now in effect in some counties.
In Graham v. Bd. of Supervisors, Erie County (18 N Y 2d 672, 674) the judgment at Special Term, (affd. 26 A D 2d 772) approved a local law providing for weighted voting as an interim plan, stating that as such a plan it was constitutional, but that it was disapproved as a permanent plan. The Court of Appeals, in modifying and affirming the judgment appealed from noted that weighted voting had inherent defects but approved the weighted voting plan embodied in the local law, “ but solely as a temporary expedient ’ ’.
Town of Tonawanda to .1 in the Town of Wales).
In the instant case which involves a system of multiple districting, for the purpose of breaking up the concentration of unduly large numbers of votes in the hands of individual legislators, and weighted voting to equalize legislative votes, with a range of only 7% to 1, the plan presents a picture considerably different from that disclosed in Graham. Plans which provide for reapportionment of county legislative bodies will necessarily deal with varying conditions in different counties. Each should be judged in the light of its own provisions as they deal with local conditions, and as they affect the citizen’s right to fair and effective representation in the legislative body. What may be impermissible with respect to State legislative reapportionment plans may be permissible in county plans, and what may be permissible in one county may be unacceptable in another (cf. Reynolds v. Sims, 377 U. S. 533, 578, supra-, Swann v. Adams, supra). The equal protection clauses do not require the application of rigid rules in all cases of legislative apportionment, if varying circumstances justify a departure from them, in particular cases, or classes of cases. There are obvious differences between State legislative bodies and county boards of supervisors which justify a different approach to county reapportionment problems, than that which has been approved, so far with respect to State plans. The composition of boards of supervisors has been provided for by State laws presumably for reasons which the Legislature considered sufficient, and while those laws may be superseded under home rule powers or charter provisions, there is no reason why a Board of Supervisors should not attempt to comply with them insofar as it may be possible to do so if that purpose can be effected without violation of the constitutional rights of the citizens of the county. The towns and the cities are political subdivisions of the county, and large or small, each has its problems which it does not share with neighboring towns, or cities, and in which its neighbors may have no interest whatsoever.
Of course, as has been stated, if recent decisions of the Supreme Court and our Court of Appeals are to be interpreted as requiring nothing less than the election of equal numbers of representatives with equal voting powers, from districts of equal population to meet constitutional requirements, the local law must be disapproved in any event. There has been no indication so far however, of such a requirement, at the county level, at least. Neither has there been any determination in the multimember district cases which have reached the Supreme Court, or in .the Graham case {supra) that the equal protection clauses require the assignment of all the representatives of a multimember district to a legislative committee in which the district is represented, or that a legislator who casts a weighted vote in a legislative body must be permitted to cast a vote of the same weight in committee work. If there is such a constitutional requirement, the local law is vulnerable from that standpoint,
Other arguments advanced in opposition to the local law require little discussion. The claim that the local law discriminates against the villages by designating the Town Supervisors as county legislators, and by failing to provide for representation of the villages on the board raises no substantial constitutional question. Whether the residents -of the territory within the villages are to be represented on the board by the Town Supervisor or some other town or village officer, or by a legislator elected at large from a town or a district embracing a town,
Neither may the contention he sustained that the law is invalid because of its requirement that the additional legislators to be elected in the towns must be property owners and no such requirement is found in the city charters. There are several answers to this objection. Neither our own Constitution nor the equal protection clause of the Fourteenth Amendment prohibits the exercise of a wide legislative discretion in the determination of the extent to which laws shall apply to different classes of persons, or in the classification of .the persons whom the laws may affect. The classification must rest on some reasonable basis, but if it is called into question, if any state of facts can be reasonably conceived that will sustain it, the existence of that state of facts must be assumed. Here the Board of Supervisors may have had in mind the fact that all the members of the board, with .the exception of the additional legislators, would be town or city officers, that such an officer would have an interest in the welfare of his community by virtue of his office alone, and that a legislator from a town, if a property owner, might be expected to have a comparable interest. Since a classification on such a basis could hardly be considered arbitrary (See Town Law, § 23, Matter of Becraft v. Strobel, 158 Misc. 844, 850, affd. 248 App. Div. 810, affd. 274 N. Y. 577), and the law is applicable alike to all who are members of the same class (the additional
If it be assumed, however, that this provision of the local law is invalid, it may be readily exscinded, without doing violence to the legislative intent (cf. People v. Mancuso, 255 N. Y. 463, 473, 474), and whether it is invalid or not it does not appear on the present record that any party, or any citizen has been subjected to any discrimination by the restriction complained of.
It must be conceded, because of the lack of definitive standards which may be applied in the application of the “ one person, one vote ” rule to the apportionment of seats or voting power in local legislative bodies, that some doubt would exist as to the validity of the local law even if the apportionment had been made on a proper population basis throughout the county. However, it is the court’s opinion that, except with respect to the invalidity of the population base, unconstitutionality has not been sufficiently demonstrated (cf. Wiggins v. Town of Somers, 4 N Y 2d 215, supra). It would be a more satisfactory course to permit the people of the county .to express their choice, for or against the law, even though no alternative plan would be submitted for their approval. However, even popular approval could not overcome constitutional invalidity (cf. Lucas v. Colorado Gen. Assembly, 377 U. S. 713), and no useful purpose could be served by permitting the referendum to proceed. The motion for approval of the law is accordingly denied.
It has been conceded that no evidence is available, except that submitted, as to the populations of the wards in the City of Yonkers. That evidence is not sufficient to permit a finding by the court that the population of any ward has been established. Perhaps the gupervisors, on the basis of the present evidence and such other evidence as they may discover in the exercise of their legislative authority, can come to a rational conclusion as to such populations, and can present a proper plan, based on their findings. At least .they should have an opportunity to do so if they wish to, or to formulate a proper district plan, providing for electoral districts of equal population. Whatever is to be done however, should be done without delay so that some plan may be promptly submitted to the people for approval.
No further action by the court is considered necessary at this time, particularly in view of the fact that there are at present at least six appeals pending, in which questions presented on this motion may be decided by appellate courts. A judgment may be submitted on notice, denying .the motion for approval of