Franklin v. Krause

• Decision Date: 03 May 1973
• Citation: 344 N.Y.S.2d 885,298 N.E.2d 68,32 N.Y.2d 234
• Parties: , 298 N.E.2d 68 Lawrence FRANKLIN et al., Respondents, v. Stanley W. KRAUSE, as Clerk of the Board of Supervisors of the County of Nassau, et al., Defendants, and Francis T. Purcell et al., Constituting the Board of Supervisors of the County of Nassau, Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 885

344 N.Y.S.2d 885

32 N.Y.2d 234, 298 N.E.2d 68

Lawrence FRANKLIN et al., Respondents, v. Stanley W. KRAUSE, as Clerk of the Board of Supervisors of

the County of Nassau, et al., Defendants, and Francis T.

Purcell et al., Constituting the Board of Supervisors of the

County of Nassau, Appellants.

Court of Appeals of New York.

May 3, 1973.

George C. Pratt, Mineola, for appellants.

John M. Armentano, Stanley Harwood and A. Thomas Levin, Mineola, for respondents.

GABRIELLI, Judge.

Special Term has declared unconstitutional a weighted voting plan adopted by the Board of Supervisors of Nassau County; and we are presented with the question whether the board has overcome the infirmity of a prior plan it had proposed.

In Franklin v. Mandeville (26 N.Y.2d 65, 308 N.Y.S.2d 376, 256 N.E.2d 534) this court rejected the weighted voting plan under which the Board of Supervisors (board) had operated for well over 30 years primarily for the reason that Supervisors representing some 57% Of the county's population located in the Town of Hempstead could cast but 49.6% Of the board's vote. It was further determined that, within six months from the public announcement of the results of the 1970 census, the board was to promulgate an acceptable plan. Ultimately, after delays beyond the six-month limit not here pertinent, plaintiffs, residents, taxpayers and qualified voters of Nassau County, moved at Special Term for an order appointing a nonpartisan commission to prepare a plan then to be implemented by the court. In September, 1972, the board, composed of four Republicans and two Democrats, unanimously adopted Local Law No. 13--1972, which provided a new weighted voting system. The board cross-moved for approval of this plan.

Special Term ruled that the plan contained the same fault for which it was previously rejected; that it did not otherwise meet criteria set down by this court in other cases; and that weighted voting was per se unacceptable as a matter of law. Special Term refused to appoint a nonpartisan commission and gave the board 60 days to devise an acceptable plan. Under the rationale of this decision, of course, the plan would either have to be based on the multi-member or single-member district concept. The board appeals directly here under CPLR 5601 (subd. (b), par. 2).

The new plan emerged after a computer analyst reviewed over 2,000 different combinations of votes and voting--this, in an effort to conform to this court's pronouncements on weighted voting made in Iannucci v. Board of Supervisors of County of Washington (20 N.Y.2d 244, 282 N.Y.S.2d 502, 229 N.E.2d 195) where, Inter alia, it was held that 'voting power' could only be equalized properly through computer mathematical analysis. One hundred possibilities were given the board's attorney and of these he submitted 'a half dozen or so' for the board's consideration. The plan selected provides for a total of 130 votes to be distributed among the six Supervisors, as follows: Each of the two Supervisors elected at large from the Town of Hempstead, 35; the Oyster Bay Supervisor, 32; the North Hempstead Supervisor, 23; the Long Beach Supervisor, 3; and the Glen Cove Supervisor, 2. Since the Town of Hempstead contains some 56% Of the county's population, and its two Supervisors possess combined voting power corresponding to 55% There is minimal deviation off the ideal, of but -1.6. Oyster Bay with some 23% Of the population has 20.370% Voting power through its Supervisor, a deviation of -2.7. North Hempstead 16.5% Population, 13% Voting power, -3.5 deviation. Long Beach 2.3% Population, 5.6% Voting power, 3.3 deviation. Glen Cove 1.8% Population, 5.6% Voting power, 3.8 deviation.

Thus, the smaller communities are superenfranchised to a somewhat greater extent than the larger communities are disenfranchised. But the range of deviation is only 7.3% And the plan fits comfortably within the intendment of Iannucci v. Board of Supervisors of County of Washington (20 N.Y.2d 244, 282 N.Y.S.2d 502, 229 N.E.2d 195, Supra) as affected by subsequent case law. The problem in Iannucci was that the smaller units of local government were not accorded decisive voting power under those weighted voting plans which would approximate the power they would project through their representatives in a legislative body which did not employ weighted voting. With regard to the plan here under consideration, and in light of the voting power combinations worked out by the computer analyst, the superenfranchisement of the smaller units in this case satisfies Iannucci in this respect.

It was also noted in Iannucci that a weighted voting plan would be invalid if over 50% Of the population were represented by a legislator entitled to cast over 50% Of the votes for then, in reality, he would possess 100% Voting power, at least as to measures requiring a majority vote for passage. The instant plan would violate that injunction, of course, were it not for its provision that for passage of a measure requiring a majority 71 and not 66 votes are required; and for measures requiring a two-thirds vote, 92, and not 87, votes are required. Thus, while 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, in reality, gives the Town of Hempstead a greater disenfranchisement than would otherwise be the case in certain voting combinations.

This is precisely the point which caused our rejection of the former plan, which, although based on different scales and values, contained the same sort of bar preventing the Town of Hempstead Supervisors from having 100% Voting power. 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 disenfranchisement. 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 problem here is somewhat unique. In none of the literature (see Johnson, An Analysis of Weighted Voting as Used in Reapportionment of County Governments in New York State, 34 Albany L.Rev. 1 (1969); Banzhaf, Weighted Voting Doesn't Work: A Mathematical Analysis, 19 Rutgers L.Rev. 317 (1965)), or the cases thus far has the situation arisen where, as here, one of the units of local government, in a county seeking to employ weighted voting, alone includes a majority of the county's total population. It is argued that for this reason the principle of weighted voting is impossible of application because in order precisely to satisfy the principle of one man, one vote the largest unit's voting power ought to be commensurate with the size of its population, but that to achieve that would be to violate the Iannucci ban on 100% Voting power.

We would be extremely reluctant to reject this weighted voting plan, approved unanimously by a bipartisan board, and force the county into multi-member districting. It has been argued to us, without material opposition, that the small board, composed of the unit Supervisors, is the most efficient form of government, and has proved to be such over the years. It is also pointed out, again without serious question, that multi-member districting would necessitate a very large legislative body (estimated at 55 members), because of the central problem--the huge disparity between the size of the population in the Town of Hempstead, and the other units which even among themselves are grossly disproportional in population size. Thus, to preserve unit boundary lines and the concomitant efficiency in the rendition of local services, without creating a monstrous legislative body, virtually necessitates a weighted voting system which can approach As closely as possible the one man, one vote principles discussed in Iannucci.

We now know that if complete mathematical perfection is not achieved at the local level there need be no reason to discard an apportionment plan solely for that reason. It has now become clear that a fair measure of superenfranchisement and disenfranchisement can be tolerated for the sake of the preservation of local units.

In Abate v. Mundt, 25 N.Y.2d 309, 305 N.Y.S.2d 465, 253 N.E.2d 189, this court approved a multi-member districting plan over the argument of excessive deviation. Judge Burke noted that the one man, one vote principle is treated differently at the three levels of legislative apportionment, i.e., at the congressional, State and local levels; that different considerations obtain at the local level and that "variations from a pure population standard might be justified by such state policy considerations as the integrity of political subdivisions, the maintenance of compactness and contiguity in legislative districts or the recognition of natural or historical boundary lines" (25 N.Y.2d, at p. 316, 305 N.Y.S.2d, at p. 469, 253 N.E.2d, at p. 192, quoting from Swann v. Adams, 385 U.S. 440, 444, 87 S.Ct. 569, 17 L.Ed.2d 501, emphasis added by Judge Burke). Abate was affirmed in the Supreme Court where it was...