Wolpoff v. Cuomo

• Decision Date: 30 June 1992
• Parties: , 600 N.E.2d 191 In the Matter of Martin WOLPOFF et al., Respondents, v. Mario M. CUOMO, Individually and as Governor of the State of New York, et al., Respondents, and Saul Weprin, Individually and as Speaker of the New York State Assembly, et al., Appellants. In the Matter of Reeves DIXON et al., Respondents, v. Mario M. CUOMO, Individually and as Governor of the State of New York, et al., Respondents, and Ralph Marino, Individually and as Temporary President and Majority Leader of the New York State Senate, Intervenor-Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 560

587 N.Y.S.2d 560

80 N.Y.2d 70, 600 N.E.2d 191

In the Matter of Martin WOLPOFF et al., Respondents, v. Mario M. CUOMO, Individually and as Governor of the State of

New York, et al., Respondents,

and

Saul Weprin, Individually and as Speaker of the New York

State Assembly, et al., Appellants.

In the Matter of Reeves DIXON et al., Respondents, v. Mario M. CUOMO, Individually and as Governor of the State of

New York, et al., Respondents,

and

Ralph Marino, Individually and as Temporary President and

Majority Leader of the New York State Senate,

Intervenor-Appellant.

Court of Appeals of New York.

June 30, 1992.

Michael A. Carvin and Charles J. Cooper, Washington, D.C., of the District of Columbia Bar, admitted pro hac vice, and Gregg M. Mashberg, New York City, for Ralph Marino, appellant in the first above-entitled proceeding and intervenor-appellant in the second above-entitled proceeding.

C. Daniel Chill, Elaine M. Reich and Lawrence D. Bernfeld, New York City, for Saul Weprin, appellant in the first above-entitled proceeding and respondent in the second above-entitled proceeding.

Stanley Kalmon Schlein, New York City, for Martin Wolpoff and others, respondents in the first above-entitled proceeding.

Robert Abrams, Atty. Gen. (Richard Rifkin, Jerry Boone, Joel Graber and Dennis Saffran, New York City, of counsel), for Mario M. Cuomo and others, respondents in the first and second above-entitled proceedings.

George F. Carpinello, New York City, for Manfred Ohrenstein and another, respondents in the first and second above-entitled proceedings.

Theodore S. Steingut, Jerome Tarnoff, Peter J. Kiernan, Allison M. Walsh and L. Banks Tarver, New York City, for Reeves Dixon and others, respondents in the second above-entitled proceeding.

OPINION OF THE COURT

WACHTLER, Chief Judge.

On March 9, 1992, the New York State Legislature voted to adopt a redistricting plan for the Senate and the Assembly (Senate Bill S 7280). On May 4, 1992, the Governor signed the plan, as approved and later amended, into law (L.1992, chs. 76, 77, 78). Within days, two separate challenges to the redistricting plan were mounted in State court, pursuant to article III, § 5 of the State Constitution and section 4221 of McKinney's Unconsolidated Laws of N.Y. (L.1911, ch. 773, § 1). The first of these, Wolpoff v. Cuomo, was commenced by order to show cause filed in Supreme Court, Bronx County, on or about May 8, 1992. Petitioners, four residents and registered voters of Bronx County, claimed that the plan for redistricting the Senate violated article III, § 4 of the State Constitution. Petitioners alleged that the Senate redistricting plan unconstitutionally fragments Bronx County into six separate Senate districts, only two of which are contained wholly within Bronx County, despite the fact that by virtue of population, Bronx County could support four wholly self-contained Senate districts.

The second action, Dixon v. Cuomo, was commenced in Supreme Court, New York County, by order to show cause filed on or about May 18, 1992. Petitioners, nine registered voters residing in proposed Senate districts throughout the State, similarly alleged violations of article III, § 4 of the State Constitution. In their petition, they contended that the Senate redistricting plan "is a rank partisan and personal-interest gerrymander" that unnecessarily fragments counties throughout the State and creates districts that are neither compact nor contiguous.

In Wolpoff, the Senate Majority Leader, a named party, had the case removed to Federal court pursuant to 28 U.S.C. § 1443(2). The United States District Court, Southern District of New York however, sent the case back to State court (Wolpoff v. Cuomo, 792 F.Supp. 964). Appeal of this remand order to the United States Court of Appeals for the Second Circuit is set for the week of July 13, 1992. A temporary stay of the remand order expired on June 9, and oral argument was heard on the petition in Supreme Court, Bronx County, on June 12. That afternoon, the State court struck down the Senate redistricting plan as violative of the State Constitution in that it "excessively, gratuitously and without supervening need dictated by federal law, disregards the integrity of county boundaries in the creation of Senatorial districts." The court struck down the Assembly plan as well, based on the requirement in article III, § 5 that the Senate and the Assembly be redistricted by the same law.

Meanwhile, the Majority Leader, who was not a named party in Dixon v. Cuomo, moved to intervene in that case and his request was granted, but was conditioned upon his agreement not to seek removal of the case to Federal court. On June 15, Supreme Court, New York County, having considered the arguments in Dixon v. Cuomo, similarly declared the redistricting plan unconstitutional.

The Majority Leader appealed pursuant to CPLR 5601(b)(2). In addition, the Assembly Speaker has filed a direct appeal challenging the decision in Wolpoff to invalidate the Assembly plan along with the Senate plan, even though the Assembly plan had not been challenged.

In the interim, a three-Judge Federal court issued its Per Curiam opinion, acknowledging its "independent obligation" in such matters, but also declaring that it was "fully cognizant of the primacy of the state legislature and state judiciary" in redistricting (Fund for Accurate & Informed Representation v. Weprin, U.S.Dist.Ct., N.D.N.Y., June 19, 1992).

We begin our analysis by turning to the constitutional provision implicated by this litigation. Article III, § 4 of the State Constitution states that "each senate district shall contain as nearly as may be an equal number of inhabitants, excluding aliens, and be in as compact form as practicable, and * * * shall at all times consist of contiguous territory, and no county shall be divided in the formation of a senate district except to make two or more senate districts wholly in such county."

In Matter of Orans, 15 N.Y.2d 339, 258 N.Y.S.2d 825, 206 N.E.2d 854, we considered the continued vitality of article III, § 4 in light of the United States Supreme Court decisions in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 and related cases, in which the Court had held that both houses of a State Legislature, by virtue of the Equal Protection Clause of the Fourteenth Amendment, must be apportioned substantially on an equal population basis. We recognized in that case that redistricting plans could no longer be based solely upon county lines without running afoul of Reynolds v. Sims, and that "the integrity of all the counties in these respects cannot be complete" (Matter of Orans, supra, at 351). We stated at that time, however, that "the historic and traditional significance of counties in the districting process should be continued where and as far as possible" (id., at 352).

Redistricting plans must also comply with the requirements of the Federal Voting Rights Act (42 U.S.C. § 1973 et seq.). 42 U.S.C. § 1973(b) specifically provides that a voting rights violation occurs if "based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State * * * are not equally open to participation by members of a [protected] class of citizens * * * in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." It should be noted that the Senate redistricting plan at issue in this case was reviewed for compliance with the Voting Rights Act by the United States Department of Justice and was subsequently approved.

The issue before us on these appeals is not whether the Senate redistricting plan technically violates the express language of the State Constitution. No one disputes that such a technical violation has occurred, and in Matter of Orans, we recognized that such violations were inevitable if the Legislature was to comply with Federal constitutional requirements. Indeed, each of the four alternative plans submitted by the petitioners technically violates the State Constitution as well. Rather, we examine the balance struck by the Legislature in its effort to harmonize competing Federal and State requirements. The test is whether the Legislature has "unduly departed" from the State Constitution's requirements regarding contiguity, compactness and integrity of counties (Matter of Schneider v. Rockefeller, 31 N.Y.2d 420, 429, 340 N.Y.S.2d 889, 293 N.E.2d 67) in its compliance with Federal mandates. "[I]t is not our function to determine whether a plan can be worked out that is superior to that set up by [the Legislature]. Our duty is, rather, to determine whether the legislative plan substantially complies with the Federal and State Constitutions" (id., at 427, 340 N.Y.S.2d 889, 293 N.E.2d 67). A strong presumption of constitutionality attaches to the redistricting plan and we will upset the balance struck by the Legislature and declare the plan unconstitutional " 'only when it can be shown beyond reasonable doubt that it conflicts with the fundamental law, and that until every reasonable mode of reconciliation of the statute with the Constitution has been resorted to, and reconciliation has been found impossible' " (Matter of Fay, 291 N.Y. 198, 207, 52 N.E.2d 97).

This is no simple endeavor. We first address petitioners' concerns regarding the integrity of counties. An examination of the redistricting plan reveals the following: 28 Senate districts out of 61 cross county lines; 11 minor counties and 12 major counties are divided. For purposes of the current plan, a minor county has fewer than 294,925 citizens, which is the figure obtained by dividing the State's citizen population (17,990,455) by the number of Senate seats (61). Further, and apparently for the first time in State history, there are four pairs of bi-county districts. Thus, two...