Jackson v. NASSAU COUNTY BD. OF SUP'RS.

• Decision Date: 14 April 1993
• Docket Number: No. CV 91-3720 (ADS).,CV 91-3720 (ADS).
• Citation: 818 F. Supp. 509
• Parties: George JACKSON, William Donald Stanford, Alonzo Hopkins, Kathryn Rogers, Francine Grier, Carlos E. Mackey, Elaine Nesin and David Ford, Plaintiffs, v. The NASSAU COUNTY BOARD OF SUPERVISORS, Joseph N. Mondello, Gregory P. Peterson, Benjamin L. Zwirn, Bruce Nyman, Angello A. Delligatti, Donald P. Deriggi, in their official capacities as members of the Nassau County Board of Supervisors, County of Nassau, Nassau County Board of Elections, Sinita Walker and John Matthews, in their official capacities as commissioners of the Nassau County Board of Elections, Defendants.
• Court: U.S. District Court — Eastern District of New York

818 F. Supp. 509

George JACKSON, William Donald Stanford, Alonzo Hopkins, Kathryn Rogers, Francine Grier, Carlos E. Mackey, Elaine Nesin and David Ford, Plaintiffs, v. The NASSAU COUNTY BOARD OF SUPERVISORS, Joseph N. Mondello, Gregory P. Peterson, Benjamin L. Zwirn, Bruce Nyman, Angello A. Delligatti, Donald P. Deriggi, in their official capacities as members of the Nassau County Board of Supervisors, County of Nassau, Nassau County Board of Elections, Sinita Walker and John Matthews, in their official capacities as commissioners of the Nassau County Board of Elections, Defendants.

No. CV 91-3720 (ADS).

United States District Court, E.D. New York.

April 14, 1993.

Fried, Frank, Harris, Shriver & Jacobsen, New York City (Terrence A. Corrigan, Honey

L. Kober, of counsel), for plaintiff David Ford.

Arthur N. Eisenberg, New York City, for the plaintiff George Jackson.

Julius Chambers, New York City, for plaintiffs Alonzo Hopkins, Kathryn Rogers, Francine Grier and Carlos E. Mackey.

Rivkin, Radler & Kremer Uniondale, NY (William J. Lewis, Evan Krinick, of counsel), for defendant Nassau County Bd. of Sup'rs.

Peter S. Williams, Susan Friedman, Mineola, NY, for defendant Nassau County Bd. of Elections.

OPINION AND ORDER

SPATT, District Judge.

"Within a given constituency, there can be room for but a single constitutional rule — one voter, one vote" (Gray v. Sanders, 372 U.S. 368, 382, 83 S.Ct. 801, 809, 9 L.Ed.2d 821 1963). In his concurrence in Gray, Justice Potter Stewart reaffirmed the right of political participation which reaches back to The Federalist Papers and forward to as yet unknown possibilities of electronic politics in the 21st century. One can only imagine what Hamilton, Madison and Jefferson would have thought of modern "PCs" and "MACs" humming overtime on complicated apportionment formulas.

Yet despite the growth of our population and the development of our complex technology, the fundamental character of the right to vote remains paramount, surfacing from time to time in issues raised about both the quantity and quality of representation. Whether these questions arise at the national or neighborhood level, as they do in the instant case, the fundamental principle of "one person, one vote" is unchanging. What does change is how Government carries out its mandate to retain the vitality of that basic precept.

In the case before the Court, eight voter-residents of Nassau County, in bringing this constitutional challenge, ask the Court to reexamine the structure of the legislative body which governs the County in light of the Supreme Court's reaffirmance of the "one person, one vote" rule in New York City Bd. of Estimate v. Morris, 489 U.S. 688, 692-703, 109 S.Ct. 1433, 1437-1443, 103 L.Ed.2d 717 (1989).

I. FACTUAL BACKGROUND

A. The Parties

The eight plaintiffs are registered voters in the Towns of Hempstead and Glen Cove. Specifically, George Jackson and Elaine Nesin are White voters in the Town of Hempstead; William Donald Stanford, Alonzo Hopkins, Kathryn Rogers, Carlos E. Mackey and David Ford are Black voters in the Town of Hempstead; and Francine Grier is a Black voter in the Town of Glen Cove.

The defendant Nassau County Board of Supervisors, established in 1937 pursuant to the New York State Constitution, Article IX and Local Law of Nassau County Article 1, is the general legislative body for Nassau County. At the time this suit was commenced, the individual defendants held the following positions: Joseph Mondello, Presiding Supervisor of the Town of Hempstead; Gregory P. Peterson, Supervisor of the Town of Hempstead; Benjamin L. Zwirn, Supervisor of the Town of North Hempstead; Bruce Nyman, Supervisor of the City of Long Beach; Angelo A. Delligatti, Supervisor of the Town of Oyster Bay; and Donald P. DeRiggi, Mayor-Supervisor of the City of Glen Cove.

The defendant Nassau County Board of Elections has the responsibility for conducting elections for the Board of Supervisors. Defendants Sinita Walker and John Matthews are Commissioners of the defendant Board of Elections and they are responsible for the conduct of the elections in Nassau County.

Each individual defendant is sued in his or her official capacity.

B. Jurisdiction

Jurisdiction in this case is based upon 28 U.S.C. §§ 1331 (federal question), 1343 (civil rights), 1357 (injury under federal laws), and 2201 (declaratory judgments). This action is brought under the aegis of the Equal Protection Clause of the Fourteenth Amendment, the Fifteenth Amendment to the United States Constitution and pursuant to 42 U.S.C. §§ 1973, 1983 and 1985.

C. The Complaint

The Nassau County Board of Supervisors serves as the legislative body for Nassau County and is composed of elected representatives from the County's five municipalities. As the largest municipality, the Town of Hempstead has two representatives on the Board; each of the other municipalities has one representative. These six lawmakers sitting on the Board are each "permitted to vote on proposed legislation in accordance with a weighted voting method devised by Prof. John F. Banzhaf III" (Complaint, ¶ 1). The particulars of the weighted voting plan are delineated at Points III and IV, infra. The Nassau County Board of Supervisors has, since 1917, used a system of weighted voting that gives more votes to Board members from the more populous towns and cities than to Board members from the less populous areas.

The Banzhaf method assertedly is intended to allow "municipalities with disparate populations to be represented on the County Board while purporting to satisfy the constitutional requirement that representation be proportionate to population" (id.). The plaintiffs contend that the United States Supreme Court rejected the Banzhaf methodology in New York City Board of Estimate v. Morris, 489 U.S. 688, 109 S.Ct. 1433, 103 L.Ed.2d 717 (1989), stating that it was "an unrealistic approach for determining whether citizens have an equal voice in electing their representatives" (id. at 698, 109 S.Ct. at 1440).

This suit consists of three causes of action. In their first claim, the plaintiffs allege that Nassau County's weighted voting system, which uses the Banzhaf method, allocates votes to each municipality in a manner that is not directly proportional to the population of the municipalities and therefore violates on its face the "one person, one vote" principle mandated by the Equal Protection Clause of the Fourteenth Amendment. In their second cause of action, the plaintiffs assert that the manner in which the Banzhaf Index is applied to the structure and voting functions of the Board of Supervisors is unconstitutional. The third claim encompasses the alleged dilution of voting strength among Black and Hispanic voters in the County. With respect to this third claim, the plaintiffs contend that

"the use of a weighted voting scheme which permits the creation of large districts and further permits, in Hempstead, the election of representatives on an atlarge basis has the effect of diluting the electoral opportunities of the minority communities in Nassau County and of denying these communities fair and effective representation in violation of Section 2 of the Federal Voting Rights Act, 42 U.S.C. § 1973 et seq." (Complaint, ¶ 2).

Ultimately, the plaintiffs seek declaratory and injunctive relief to enforce the provisions of the First, Fourteenth and Fifteenth Amendments to the Constitution as well as Section 2 of the Voting Rights Act.

D. Prior Constitutional Challenges to the Weighted Voting Plan

The arguments asserted by both sides in this controversy contain various interpretations of the previous cases dealing with the principle of "one person, one vote" and the concept of weighted voting in several counties within New York State. Therefore, it is necessary to review the actions which provide the background for the instant challenge before turning to the merits of the motion now before the Court.

(1) Iannucci v. Board of Supervisors

In the mid-1960s, Washington County, a municipality in upstate New York, attempted to implement a plan of permanent reapportionment based on weighted voting (see Iannucci v. Board of Supervisors of Washington County, 27 A.D.2d 346, 279 N.Y.S.2d 458 3d Dept.1967). The Supreme Court at Special Term issued an order invalidating the plan as unconstitutional.

On appeal, the Appellate Division, Third Department held that weighted voting on the county level as presented could not satisfy the "one person, one vote" mandate of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, rehearing denied, 379 U.S. 870, 85 S.Ct. 12, 13 L.Ed.2d 76 (1964). The court went on to note that weighted voting, "although not as unrepresentative as the historical representation by town supervisors, is unconstitutional and the only practical solution to the problem of reapportionment is by the method of district representatives based on population or, perhaps, by the county wide election of supervisors at large" (id., 279 N.Y.S.2d at 459). In reaching its decision, the Third Department observed that while weighted voting cures the previous favoritism in areas of smaller population, "it by the very system itself creates new inequities in terms of power" (id.). The board was directed to prepare and submit a permanent plan of reapportionment within ten days. It adopted an "Adjusted Weighted Voting Plan."

The New York State Court of Appeals thereafter reviewed the Washington County case, along with a reapportionment action from Saratoga County, and found that both boards as then constituted were "malapportioned" and violative of the "one person, one vote" principle (Iannucci v. Board of Supervisors of Washington County, 20 N.Y.2d 244, 249, 282 N.Y.S.2d 502, 506, 229 N.E.2d 195, 197 1967). In reaching this conclusion, the court cited Prof. John Banzhaf's work on weighted voting, noting that the "significant standard for measuring a legislator's voting power...