IN THE MATTER OF MARTIN WOLPOFF, ET AL., RESPONDENTS, v. MARIO M. CUOMO, &C., ET AL., RESPONDENTS, AND SAUL WEPRIN, &C., AND RALPH MARINO, &C., APPELLANTS. / IN THE MATTER OF REEVES DIXON, ET AL., RESPONDENTS, v. MARIO M. CUOMO, &C., ET AL., RESPONDENTS, AND RALPH MARINO, &C., INTERVENOR-APPELLANT.
80 N.Y.2d 70, 600 N.E.2d 191, 587 N.Y.S.2d 560 (1992).
June 30, 1992

Decided June 30, 1992

This opinion is uncorrected and subject to revision before publication in the New York Reports.

No. 219:

Michael A. Carvin, for Appellant Marino.
C. Daniel Chill, for Appellant Weprin.
Richard Rifkin, for Respondents Cuomo et al.
Stanley Kalmon Schlein, for Respondents Wolpoff et al.
Manfred Ohrenstein and Anthony M. Masiello, amici curiae.

No. 220:

Michael A. Carvin, for Intervenor-appellant.
C. Daniel Chill, for Respondent Weprin.
Richard Rifkin, for Respondents Cuomo et al.
Theodore S. Steingut, for Respondents Dixon et al.
Manfred Ohrenstein and Anthony M. Masiello, amici curiae.

WACHTLER, CH.J.:

On March 9, 1992, the New York State Legislature voted to adopt a redistricting plan for the Senate and the Assembly (Senate Bill S. 7820). On May 4, 1992, the Governor signed the plan, as approved and later amended, into law (Laws of 1992, Chapters 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 § 4221 of the Unconsolidated Laws of the State of New York. 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 42 USC § 1443 (2). The U.S. District Court, Southern District of New York, however, sent the case back to state court. Appeal of this remand order to the U.S. 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 an Accurate and Informed Representation v Weprin, US Dist Ct., ND NY, 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 NY2d 339), we considered the continued vitality of article III, § 4 in light of the United States Supreme Court decisions in Reynolds v Sims (377 US 533) 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 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 USC § 1973 et seq.). 42 USC § 1973 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 NY2d 420, 429) 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). 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 every reasonable mode of reconciliation of the statute with the constitution has been resorted to, and reconciliation has been found impossible" (In re Fay, 291 NY 198, 206-07).

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 separate Senate districts cross the county line between Nassau County and Suffolk County, another two districts cross between Bronx County and New York County, another two between Bronx County and Westchester County and another two between Orange County and Ulster County. We note that the plan challenged here is not markedly different from the plan upheld in Schneider, supra. In Schneider, 26 out of 60 Senate districts crossed county lines, splitting 9 minor counties and 10 major counties.

The Majority Leader has marshalled a considerable amount of statistical and demographic data to support his contention that these districts were drawn in a "good faith effort" (Schneider, supra, at 428) to comply with Reynolds v Sims and the Voting Rights Act and not for partisan political reasons, as petitioners argue. In support of his argument that the Legislature's motives were benign, he points to the fact that for purposes of the United States Supreme Court equal population mandates, the Senate plan has a maximum population deviation of 4.29% from the ideal, which is well below the 16.4% deviation held acceptable by the United States Supreme Court in Mahan v Howell (410 US 315).

Petitioners, by contrast, have submitted four alternative plans, all of which have higher population deviations, but all of which divide fewer counties. In addition, none of the proffered alternative plans create pairs of bi-county districts, as does the current plan. Petitioners contend that the Legislature could have drafted a plan that had a higher, but still acceptable, population deviation and thereby done less damage to the integrity of county lines.

We are not here to determine whether the Legislature complied with the Federal Voting Rights Act. The Justice Department has already determined that the plan meets Federal requirements in that regard. Nor is it our role to assess the equal population deviations contained in the plans before us and determine which plan best balances Federal equal population and State constitutional directives. We are here to decide whether in complying with Federal mandates, the Legislature unduly undermined article III, § 4 of the State Constitution. That an alternative plan might have been devised that conflicted less with article III, § 4 but did greater violence to the equal representation principle is no basis for rejecting the Senate plan. Further, we cannot focus solely on the challenged districts and ignore the fact that a redistricting plan must form an integrated whole.

Balancing the myriad requirements imposed by both the State and the Federal Constitution is a function entrusted to the Legislature. It is not the role of this, or indeed any, court to second-guess the determinations of the Legislature, the elective representatives of the people, in this regard. We are hesitant to substitute our own determination for that of the Legislature even if we would have struck a slightly different balance on our own. Having considered the competing demographic and statistical data submitted by all of the parties in these cases, we find that the petitioners have not overcome the presumption of constitutionality that attaches to the redistricting plan.

Notwithstanding the technical deficiencies of the Senate redistricting plan, we find that respondent has put forth more than enough evidence to support his argument that any such violation was minimized and that the district lines were drawn as they were in order to comply with federal statutory and constitutional requirements. The Senate plan indeed compromises the integrity of 23 counties, as petitioners have noted. But respondent has countered petitioners' allegations with a detailed defense of the proposed plan that is grounded in a complex analysis of population trends and voting patterns, and the way in which both must be accomodated in order to comply with federal requirements. Although we are troubled by the number of divided counties in the new plan and by the four bi-county pairings, it is not appropriate for us to substitute our evaluation of the relevant statistical data for that of the Legislature. We are satisfied that in balancing State and Federal requirements, the respondent has complied with the State Constitution as far as practicable, and we cannot conclude on this record that the Legislature acted in bad faith in approving this redistricting plan. Having made that determination, our review is ended (Schneider, supra, at 428-29).

We have considered the petitioners' compactness and contiguity claims, and we find them to be without merit. Accordingly, in each case, the judgment of Supreme Court should be reversed, without costs, the petition dismissed, and judgment granted declaring chapters 76, 77 and 78 of the Laws of 1992 constitutional.

TITONE, J. (dissenting):

The issue here is, quite simply, the degree to which our State constitutional anti-gerrymandering provisions still have vitality in light of the evolving body of federal law that both demands proportional representation (see, e.g., Mahan v Howell, 410 US 315; Reynolds v Sims, 377 US 533) and prohibits state apportionment plans that dilute minority voting strength (42 USC § 1973[a][b]; see, Thornburgh v Gingles, 478 US 30). The majority has held that in this case the former must give way to the values reflected by the latter. Since I conclude that it is possible under these facts to reconcile the requirements of federal law with those of article III, § 4, of our State Constitution without completely eviscerating the latter, I dissent.

Article III, § 4, of the State Constitution requires, among other things, that Senate district lines be drawn so that "no county shall be divided except to make two or more [S]enate districts wholly [within the] county." It has long been recognized that absolute adherence to this constitutional command is impossible in light of modern federal equal-population mandates and the existence of several counties whose populations are insufficient to support even a single senatorial district. Accordingly, this Court has held that the Constitution is satisfied when "the Legislature has made a good-faith effort to comply with * * * the equal-population principle * * * and has not unduly departed from our State constitutional command that the integrity of counties be preserved" (Matter of Schneider v Rockefeller (31 NY2d 420, 427 [emphasis supplied]).

The standard for judicial review in this context is thus one akin to the notion of reasonableness. Under Schneider, what appears to be an unconditional constitutional directive may be satisfied as long as any departures therefrom are fairly justifiable in view of the other legal and practical constraints to which the redistricting process is subject. Hence, while the strict county-integrity rule has been eased by precedent, the Legislature is not free to disregard it simply because it can point to other, legally sanctioned goals as the motivating force or "benign" motive behind its final product (see, slip op, at 6). And, contrary to the majority's suggestion, the Legislature is not the sole arbiter of whether an appropriate balance has been struck between the strictures of that rule and the sometimes competing values of population equality and enhancement of minority voting strength. As important and deserving as those values unquestionably are, the Legislature is duty-bound to accommodate them within our own constitutional framework, and the courts have both the right and the obligation to ensure that the demands of the State Constitution are, to the extent practicable, respected (Matter of Sherill v O'Brien, 188 NY 185, 203-204; see Matter of Schneider v Rockefeller, supra, at 427 ["(o)ur duty is to determine whether the legislative plan substantially complies with the * * * State Constitution"]). Viewed against these principles, the redistricting plan at issue here cannot be upheld.

The plan petitioners have challenged contains 28 out of a total of 61 Senate districts that cross county lines other than to create two or more districts wholly within the divided counties. A total of 11 minor and 12 major counties have been divided. Populous Kings and New York Counties are each divided by no less than three districts. Bronx County, which has sufficient population to encompass four whole Senate Districts, is instead given only two wholly intra-county districts and is then divided by four additional cross-county districts. Moreover, the plan contains four bi-county districts, i.e., pairs of districts where both contain parts of the same two counties, a phenomenon which, according to petitioners, is unprecedented. Thus, it cannot be disputed that the challenged plan represents a drastic departure from the constitutional goal of respecting the integrity of county lines.

Contrary to the majority's analysis this derogation of the constitutional rule cannot be justified on the basis of the competing commands of the federal equal-population requirement and the Voting Rights Act. As revealed by petitioners' submissions, at least four alternative plans exist that satisfy all of the requirements of federal law while dividing fewer counties and containing no bi-county districts. These plans establish that the Legislature's county-dividing choices were not dictated by practical necessity.

Respondents' efforts to combat the inferences to be drawn from the existence of these less divisive alternative plans are unavailing. First, relying on language in Matter of Schneider v Rockefeller (supra, at 427), respondents contend that the existence of alternative plans is not sufficient to overcome the presumption of constitutionality that ordinarily cloaks legislation and is, in fact, not even a proper subject for judicial consideration. The argument, however, misconstrues the Schneider analysis, which merely concluded that "it is not [the court's] function to determine whether a plan can be worked out that is superior to that set up by [the challenged plan]" (id.). Here, the alternative plans were not submitted as alternative or superior plans, but rather an a means of disproving respondents' contention that the Legislature's wholesale disregard for county integrity was compelled by the need to comply with federal equal protection principles. Viewed in that context, the alternative plans provide a legitimate and, indeed, highly persuasive argument for holding the enacted plan unconstitutional.

Respondent next contends that the alternative plans petitioners submitted are an unsatisfactory ground for invalidating the enacted plan because although all four of them satisfy federal requirements, they each contain average population deviations that are higher than the overall percentage deviation contemplated by the enacted plan. In Reynolds v Sims (supra, at 577), the Supreme Court set down the basic principle that local legislators should be elected from districts that are "as nearly of equal population as is practicable," but also stated that some "deviations" "based on legitimate considerations incident to the effectuation of * * * rational state policy" are permissible. On the basis of Reynolds and its progeny, this Court held in Matter of Schneider v Rockefeller (supra, at 428) that the Legislature is entitled to draw districts that cross county lines in order to minimize deviations from the one-person- one-vote principle and that "the choice of maximum population equality [is] a [valid] guiding principle." Respondents invoke the latter pronouncement in support of their contention that the Legislature was entitled to adopt a plan that was more divisive than the alternatives because they were acting to advance the goal of minimizing population deviations. The argument is, at best, misguided.

Since Schneider was decided, the United States Supreme Court has held that a "rational state policy of respecting the boundaries of political subdivisions" is a valid ground for departing somewhat from the strict one-person-one-vote rule and that a "16-odd percent maximum deviation" was within "tolerable limits" (Mahan v Howell, 410 US 315, 328-329). Mahan thus establishes that compliance with federal law may be achieved even though the redistricting plan does not purport to minimize population deviations, as long as some other satisfactory state value, including preserving the integrity of local political subdivisions, was the motivating reason (accord, Brown v Thompson, 462 US 835; White v Register, 412 US 755; Gaffney v Cummings, 412 US 735). Additionally, Mahan refutes any argument respondents might make that they had to ignore county borders to the extent they did in order to comply with federal law.

Furthermore, inasmuch as Schneider predates Mahan, that case can no longer be regarded as controlling to the extent that it suggests judicial tolerance for redistricting plans that freely divide counties in order to maximize population equality. Now that Mahan has established that federal law does not require state legislatures to maximize equality without regard to other local concerns, the Court's view of what constitutes an "undue" incursion on the county-integrity principle must necessarily change.[n 1] In the final analysis, the guiding principle continues to be the prescriptions contained in the State Constitution, and those prescriptions must be obeyed except to the extent that they are directly in conflict with the dictates of federal law.

Finally, respondents' reliance on the federal Voting Rights Act to justify the Legislature's departure from Article III, § 4's requirements is unpersuasive. While the Legislature was unquestionably required to guard against an apportionment plan that could dilute the voting strength of minority voters, respondents have not shown in specific terms how that goal necessitated the number and extent of county divisions that were adopted here.

In short, because the plan the Legislature adopted departs dramatically from State constitutional mandates and was not necessitated by federal law, petitioners have made a prima facie showing that the Senate redistricting plan "unduly departed from our State constitutional command that the integrity of counties be preserved" (Matter of Schneider v Rockefeller, supra, at 428-429). Further, that constitutional command is not merely an outdated relic of another time that may be relegated to a secondary status or even disregarded entirely in light of modern federal principles. Article III, § 4, was designed specifically to prevent "the possibility of unfair division of the State into * * * district so as to result in party or individual advantage" (Matter of Sherill v O'Brien, supra, at 203; see, 3 Lincoln, Constitutional History of New York 135, 204, 218). That concern is as valid today as it was just before the turn of this century, when the Constitution of 1894 containing the present provision's predecessor was adopted (see, McKinney's NYS Constitution, Historical Note, p 40). Indeed, even a brief review of the challenged plan's treatment of Bronx County makes clear that the practice of gerrymandering is far from a dead letter.

With a population of 1,203,789, Bronx County is entitled to four wholly contained Senate Districts. If the Legislature had drawn four whole Senate districts wholly enclosed within the County's borders, the percentage deviation from a perfect one-person-one-vote ratio would be only two percent, a figure well within the "tolerable limits" contemplated in Mahan v Howell (supra). Furthermore, the ethnic make-up of the Bronx readily lends itself to district formation that would advance the values to be promoted by the voting Rights Act. With a population that is 43% Hispanic, 31% African-American and 26% White, Bronx County could accommodate two wholly contained districts that are nearly 85% combined minority with a majority of Hispanics, one district that is nearly 85% combined minority with a majority of African Americans and one district that would contain most of the County's non-minority population. The fact that the Legislature chose to criss-cross the County's borders repeatedly, giving it only two intra-county Senate districts and dividing the remainder of its population among four inter-county Senate districts belies any serious claim that the present redistricting plan was motivated solely by a legislative desire to comply with federal mandates.

I am particularly concerned that the tolerance the majority has today expressed for a plan that all but disregards the integrity of county borders will be read by many as a signal that our State constitutional provisions no longer represent serious constraints on the critically important redistricting process. Certainly, although the majority has made passing reference to the "'historic and traditional significance of counties in the districting process'" (slip op., at 4-5, quoting Matter of Orans (15 NY2d 339, 351), there is little in its analysis or result that suggests any real commitment to that principle. Inasmuch as I deem this constitutionally prescribed principle to be important to the integrity of our redistricting system and inasmuch as the principle could have been accommodated within a federally satisfactory plan, I am compelled dissent from the Court's decision to uphold the plan the Legislature and vote instead to affirm the judgments below.[n 2]

F O O T N O T E S

1. Respondents' reliance on Bay Ridge Community Council v Carey (103 AD2d 280, affd 66 NY2d 657) as a post-Mahan decision that supports its position is misplaced, since Bay Ridge was concerned principally with Assembly districts, as to which there is no effective constitutional rule requiring respect for county lines (see, 103 AD2d, at 285, citing Matter of Orans, 15 NY2d 399, 351).

2. Inasmuch as the Senate plan and the Assembly plan were enacted as part of the same law, the former's constitutional infirmity operates to invalidate the latter as well (see, Matter of Orans, 15 NY2d 339, supra).

* * * * * * * * * * * * * * * * *

No. 219: Judgment reversed, without costs, petition dismissed and judgment granted declaring chapters 76, 77 and 78 of the Laws of 1992 constitutional. Opinion by Chief Judge Wachtler. Judges Simons, Hancock and Bellacosa concur. Judge Titone dissents and votes to affirm in an opinion. Judge Kaye took no part.

No. 220: Judgment reversed, without costs, petition dismissed and judgment granted declaring chapters 76, 77 and 78 of the Laws of 1992 constitutional. Opinion by Chief Judge Wachtler. Judges Simons, Hancock and Bellacosa concur. Judge Titone dissents and votes to affirm in an opinion. Judge Kaye took no part.