SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
___________________________________________x
DANIEL MARKS COHEN; RAQUEL BATISTA;
PURVA BEDI; TODD BREITBART; RAYMOND W.
ENGEL; JACQUELINE G. FORRESTAL;
PATRICK L. FURLONG; ANDREW KULYK;
JERRY C. LEE; IRENE VAN SLYKE; and SENATOR
MARTIN MALAVÉ DILAN,
Index No. 12-102185
Petitioners,
-againstGOVERNOR ANDREW M. CUOMO; LIEUTENANT
GOVERNOR AND PRESIDENT OF THE SENATE
ROBERT J. DUFFY; SENATE MAJORITY
LEADER AND PRESIDENT PRO TEMPORE OF
THE SENATE DEAN G. SKELOS; SPEAKER OF
THE ASSEMBLY SHELDON SILVER; and THE
NEW YORK STATE BOARD OF ELECTIONS,
Respondents.
___________________________________________x
MEMORANDUM OF LAW IN SUPPORT OF PETITIONERS’ PETITION
PURSUANT TO UNCONSOLIDATED LAWS § 4221 TO DECLARE UNLAWFUL
AND ENJOIN THE ENFORCEMENT OF CHAPTER 16 OF THE LAWS OF 2012
CUTI HECKER WANG LLP
305 BROADWAY, SUITE 607
NEW YORK, NEW YORK 10007
(212) 620-2600
Attorneys for Petitioners
TABLE OF CONTENTS
PRELIMINARY STATEMENT ........................................................................................ 1
FACTS ................................................................................................................................ 6
A. The Formula Prescribed in Article III, Section 4 of the Constitution.................. 6
B. The Two Possible Counting Methodologies for Combining Counties,
and the Two Areas that Matter............................................................................. 7
(i)
Queens/Nassau ............................................................................................. 8
(ii) Richmond/Suffolk ........................................................................................ 9
C. The Use of the “Combine Before Rounding Down Method” (Method A) in
1972, 1982, and 1992 ......................................................................................... 10
D. The Politically Motivated Decision to Abandon the “Combine Before
Rounding Down Method” (Method A), and to Switch to the “Round Down
Before Combining Method” (Method B), in 2002............................................. 11
E. Chapter 16's Use Both Methods Simultaneously in 2012 .................................. 15
F. The Decision to Use Both Methods Simultaneously Was Political, Not the
Result of any Effort by the Legislature to Apply the Constitution Faithfully,
Consistently, or Evenhandedly .......................................................................... 17
ARGUMENT .................................................................................................................... 19
I.
BECAUSE INCREASING THE SIZE OF THE SENATE TO 63 SEATS
IN 2012 VIOLATES ARTICLE THREE, SECTION FOUR OF
THE NEW YORK CONSTITUTION, THIS COURT SHOULD
DECLARE CHAPTER 16 UNCONSTITUTIONAL AND ENJOIN
ITS IMPLEMENTATION……………………………………………………19
A. The Legislature's Use of Method A in Richmond/Suffolk and
Method B in Queens/Nassau Is Inconsistent and Arbitrary ....................... 19
B. The Legislature's Use of Method A in Richmond/Suffolk and
Method B in Queens/Nassau Is Purposefully Discriminatory.................... 22
CONCLUSION ................................................................................................................. 27
i
TABLE OF AUTHORITIES
CASES
Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995) ...................................................................................................... 19
Gross v. Albany Cnty. Bd. of Elections,
3 N.Y.3d 251 (2004) ..................................................................................................... 27
Cox v. Larios,
542 U.S. 947 (2004) ................................................................................................ 25, 26
Dist. of Columbia v. Heller,
554 U.S. 570 (2008) ...................................................................................................... 19
Good Samaritan Hospital v. Shalala,
508 U.S. 402 (1993) ...................................................................................................... 19
Matter of Orans,
15 N.Y.2d 339 (1965) ..................................................................................................... 6
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,
545 U.S. 967 (2005) ...................................................................................................... 22
Rodriguez v. Pataki,
280 F. Supp. 2d 89 (S.D.N.Y. 2003). ........................................................................... 13
Schneider v. Rockefeller,
31 N.Y.2d 420 (1972) ............................................................................................ passim
Settle v. Van Evrea,
4 Sickels 280, 49 N.Y. 280 (1872)................................................................................ 19
Staber v. Fidler,
65 N.Y.2d 529 (1985) ................................................................................................... 27
United States v. Santos,
553 U.S. 507 (2008) ...................................................................................................... 22
ii
Petitioners, by and through their attorneys, Cuti Hecker Wang LLP, respectfully submit
this Memorandum of Law in support of their Petition.
PRELIMINARY STATEMENT
This Petition pursuant to Unconsolidated Laws § 4221 seeks a declaration and
injunction barring Respondents from enforcing Chapter 16 of the Laws of 2012 (“Chapter
16”), which purports to increase the size of the New York Senate from 62 districts to 63.
Chapter 16 violates Article III, section 4 of the New York Constitution (“Section 4”)
because the Legislature failed to apply the Senate size formula prescribed therein
consistently, rationally, or in good faith.
The Constitution of 1894 created a 50-seat Senate. The third paragraph of
Section 4 prescribes a mathematical formula for expanding the size of the Senate in subsequent
years based on county population growth. Fixing the size of the Senate in the Constitution, and
providing a specific mathematical formula for determining when and how to expand the size of
the Senate in response to future population growth, was designed to make that judgment
objective and to remove it from the unconstrained hands of political actors.
The mathematical formula prescribed in Section 4 requires comparing (i) the populations
of the State’s most populous counties at the time of the most recent Census (those having 6% or
more of the State’s total population) with (ii) the populations of such counties at the time the
1894 Constitution was ratified. The first step is to divide the current State population by 50 (the
number of Senate districts in 1894). This quotient is called the “ratio” for that year. Next, one
determines the number of “full ratios” for each county above the 6% threshold by dividing each
such county’s current population by the “ratio” for the current year and dropping the remainder,
however large. The current number of “full ratios” for each of these populous counties is then
1
compared with the number of Senate districts that such county contained in 1894. If the county’s
current number of “full ratios” is greater than the number of Senate districts that the county
contained in 1894, then the size of the Senate is increased by the difference between those two
numbers.
The issue in this case arises from the need to combine certain counties in order to perform
the comparisons to 1894 that Section 4 requires. Combining certain pairs of counties is
inevitable when applying Section 4 because certain present-day counties did not exist in 1894.
For example, in 1894 the territory now organized as Nassau County was part of Queens. Thus,
in order to compare present-day apples to 1894 apples with respect to Queens/Nassau as Section
4 requires, one must combine present-day Queens and Nassau and treat them as a unit, and one
must compare that combined present-day unit to Queens as it existed in 1894.
There are two ways in which the total current number of “full ratios” for Nassau and
Queens collectively might be calculated, the key difference being when in the process one
rounds down the fractional remainders: (a) one could first combine the current populations of
Queens and Nassau, then divide the combined population by the “ratio” number, and then round
the combined number of “ratios” down to the nearest-lower whole number (the “Combine Before
Rounding Down Method” or “Method A”); or (b) one could first identify the individual number
of “full ratios” for each present-day county by dividing the individual populations of each by the
“ratio” number, round the number of “ratios” in each individual county down to the nearestlower whole number, and then add together the two rounded-down counts of “full ratios” (the
“Round Down Before Combining Method” or “Method B”). Sometimes these two methods lead
to the same result, but sometimes they do not.
2
During the 1972, 1982, and 1992 reapportionments, the Combine Before Rounding Down
Method (Method A) was used consistently. In 2002, however, in a sudden and unexpected
about-face, the Legislature reversed this longstanding interpretation of Section 4, deciding to use
the Round Down Before Combining Method (Method B) for the first time in modern history.
The Legislature’s redistricting task force, LATFOR, attempted to justify this departure from
decades of precedent by publishing a memorandum authored by the attorney for the Senate’s
Republican Majority, who announced, with little legal analysis, that Method B “is more faithful
to the Constitution.” No court ever addressed the legality of the Legislature’s decision to shift
from Method A—which was expressly blessed by the New York Court of Appeals in 1972 and
consistently used by the Legislature for three decades—to Method B in 2002.
Moreover, internal documents that LATFOR was subsequently compelled to produce in
litigation revealed that the Legislature switched from Method A to Method B in 2002 for purely
partisan reasons: to create the Senate size that best enabled it to prevent the reapportionment of
one district from the Republican-dominated upstate area to the Democrat-dominated downstate
area, and to maximize the chances that the Republicans would maintain majority power that the
State’s political demographics no longer supported. These documents confirm that the decision
to switch methodologies in 2002 was made without any consideration of the proper interpretation
or application of Section 4.
But even though the Legislature’s change in counting methodologies in 2002 was a thinly
veiled political ploy, at least the Legislature had seemingly committed, once and for all, based on
what it presented as thoughtful legal reasoning, to use the Round Down Before Combining
Method (Method B), and not the Combine Before Rounding Down Method (Method A), because
the former “is more faithful to the Constitution.” Or so the public was led to believe.
3
But Chapter 16 marks another sudden departure from its previous practice, for it is based
on an even more indefensible interpretation of Section 4. Given the population figures revealed
in the 2010 Census, there are two places where the choice of methodology affects the size of the
Senate: Queens/Nassau (which must be combined to compare those counties to 1894 because
Nassau did not exist at the time) and Richmond/Suffolk (which are combined because those
counties were combined in a single Senate district in 1894). Using the Round Down Before
Combining Method (Method B)—to which the Legislature switched in 2002 because LATFOR
concluded it was “more faithful to the Constitution”—would yield 62 districts this year, the same
number as in 2002.
The Legislature apparently does not like that number this year. In a memorandum that it
published on its website on January 6, 2012, the Republican Majority’s outside counsel—the
same attorney who authored the 2002 memorandum—instructed LATFOR to use the Round
Down Before Combining Method (Method B) with respect to the Queens/Nassau combination,
but to use the Combine Before Rounding Down Method (Method A) with respect to the
Richmond/Suffolk combination. The Legislature followed LATFOR’s recommendation. In
other words, the Legislature calculated the size of the new 2012 Senate by applying two different
methodologies to combining counties—including the very methodology that it expressly rejected
in 2002—within the very same reapportionment plan. This plainly unconstitutional approach,
manufactured for the first time during this round of redistricting, yields 63 seats—the number of
districts that the Republican Majority concluded would best position it to prevent the elimination
of one of its upstate incumbents through population-based reapportionment, thereby enabling the
Republican Majority to best position itself to maintain control of the Senate.
4
This is unconstitutional for two fundamental reasons. First, the Legislature’s decision to
use Method A in one part of the State and Method B in another—having already concluded that
Method B supposedly is “more faithful to the Constitution”—is arbitrary and inconsistent, and
therefore is unconstitutional, without regard to the Legislature’s transparently partisan
motivation. Second, the Senate Republicans persuaded the Legislature to add a 63rd district for
self-preserving political reasons, not based on a good-faith effort to interpret Section 4. The
Legislature has no discretion to manipulate the objective mathematical formula prescribed in
Section 4 by changing counting methodologies after every Census (let alone to use two
inconsistent methodologies simultaneously) to suit the ephemeral partisan interests of the
controlling political party. The Legislature exacerbated the constitutional violation, moreover,
by manipulating the public hearing process in a manner that deprived the public of its entitlement
to a meaningful opportunity to participate in the redistricting process.
No matter what one thinks about the relative merits of Method A and Method B, there is
no constitutional path that leads to a 63-seat Senate in 2012. Consistently using Method B
(which the Legislature previously concluded “is more faithful to the Constitution”) yields 62
seats. Consistently using the methodology that the Legislature used in 1972, 1982, and 1992
likewise yields 62 seats. The Legislature’s novel, legally unprincipled, arbitrary, politically
motivated, and gerry-rigged “method” is the only way to yield 63 seats. That method, and
therefore that result, is constitutionally indefensible.
5
FACTS
A.
The Formula Prescribed in Article III, Section 4 of the Constitution
The relevant language in Section 4 provides:
[T]he Senate shall always be comprised of fifty members, except that if any county
having three of more senators at the time of any [future] apportionment shall be entitled
on such ratio to an additional senator or senators, such additional senator or senators shall
be given to such county in addition to the fifty senators, and the whole number of
senators shall be increased to that extent.
N.Y. Const. art. III, §4. The Court of Appeals has interpreted this language several times since
1894. Those decisions establish the procedure that Section 4 requires in determining whether
and the extent to which to increase the size of the Senate.
First, the total population of the State, as determined by the most recent Census, is
divided by 50—the minimum number of Senate seats. Affidavit of Todd Breitbart dated March
15, 2012 (“Breitbart Aff.”) ¶ 3. This quotient produces the so-called “ratio” figure for that year.
Counties having three or more “full ratios”—that is, more than 6% of the State’s total
population—are then allotted one Senate district for each “full ratio.” Id. The number of
districts allotted to each county over the 6% threshold is then compared with the number of
districts such county was allotted in 1894. Id. The increase, if any, is then added to the 50
original districts to yield the “whole number” of districts in the new Senate. Decreases, if any,
are disregarded. Id.1
1
Section 4 also prescribed rules governing how to apportion Senate districts
among counties, such as that “no county shall have four or more senators unless it shall
have a full ratio for each senator” and that “no county shall have more than one-third of
all the Senators.” N.Y. Const. art. III, §4. In Matter of Orans, 15 N.Y.2d 339 (1965), the
Court of Appeals held that such county-based allocation rules were unconstitutional to
the extent that they were inconsistent with the newly emerged one person, one vote rule
(which requires districts to be drawn substantially on an equal population basis) but that
the Senate size formula prescribed in Section 4 “is still alive.” Id. at 351.
6
B.
The Two Possible Counting Methodologies for Combining Counties, and the
Two Areas that Matter
The language of Section 4 regarding the size of the Senate does not expressly
contemplate the creation of counties that did not exist in 1894. Id. ¶ 4. For example, the area
that in 1894 was known as Queens County (and comprised a single Senate district represented by
a single Senator) now includes, with only insubstantial differences, the area that currently
comprises both Queens and Nassau Counties. Id. Because Section 4 requires an apples-toapples comparison of the number of “full ratios” of the current population to the number of
districts those counties had in 1894, one must combine the populations of present-day Queens
and Nassau in order to make this comparison. Id.
There are two different ways in which one could calculate the total current number of
“full ratios” for a county combination such as Queens/Nassau: the Combine Before Rounding
Down Method (first combining the current populations of the counties, then dividing the
combined population by the “ratio” number, and then rounding the number of “ratios” down to
the nearest-lower whole number of “full ratios”) (Method A); or (b) the Round Down Before
Combining Method (first dividing the individual populations of each by the “ratio” number, then
rounding each individual quotient down to the nearest-lower whole number of “full ratios,” and
then adding together the two rounded-down numbers of “full ratios”) (Method B). Id. ¶ 5.
Sometimes these two methods lead to the same result, but sometimes they do not. Id. ¶ 6.
For example, the 2010 Census revealed that Queens has a population of 2,230,722 and that
Nassau has a population of 1,339,532. Id. The “ratio” this year is 387,562 (the total New York
population of 19,378,102 divided by 50). Id. If one uses Method A, then the populations of
Queens and Nassau are first combined, that total number (3,570,254) is then divided by the
7
“ratio” of 387,562, and the resulting quotient of 9.21 is then rounded down to 9 “full ratios.” Id.
But if one uses Method B, the Round Down Before Combining Method, then each county’s
population is first divided by the “ratio,” which yields 5.76 “ratios” for Queens (2,230,722
divided by 387,562) and 3.46 “ratios” for Nassau (1,339,532 divided by 387,562), those “ratios”
are then rounded down to 5 and 3, respectively, and the rounded-down “full ratios” are then
summed to yield 8 “full ratios.” Id. The difference—9 “full ratios” versus 8—means that the
Combine Before Rounding Down Method would yield, based on these numbers, one more
Senate seat than the Round Down Before Combining Method. Id.
There are two different sets of counties during this reapportionment where the difference
between applying Method A and Method B can affect the size of the Senate: Queens/Nassau and
Richmond/Suffolk. Id. ¶ 7. These two areas both (i) yield more than three full ratios (6% of the
total State population) and thus are relevant to the Senate size calculus and (ii) for slightly
different reasons, require the combination of county populations in order to perform the
comparison required by Section 4. Id. As we explain in the following subsections, none of the
differences between these areas justifies treating them differently when performing the county
combination math required by Section 4. Id.
(i)
Queens/Nassau
As previously discussed, the area that in 1894 was known as Queens County now
includes, with only insubstantial differences, the area that currently contains both Queens and
Nassau Counties. Id. ¶ 8. Thus, in order to perform an apples-to-apples comparison of the
number of “full ratios” in the Queens/Nassau area today and the number of Senate districts in the
area that Queens County comprised in 1894, one must combine either the populations of presentday Queens and Nassau Counties (Method A) or their individual “full ratios” (Method B). Id.
8
(ii)
Richmond/Suffolk
The Richmond/Suffolk combination presents a similar twist. Id. ¶ 9. Because Richmond
and Suffolk Counties both existed in 1894 and both exist today, it is easy to compare the number
of “ratios” in present-day Richmond to the number of “ratios” that Richmond had in 1894. Id.
The same is true for Suffolk. Id. But it is impossible to compare the number of present-day
“ratios” in Richmond to the number of Senate districts that Richmond had in 1894, which is the
comparison that Section 4 requires. Id. This is so because Richmond by itself did not have any
Senate districts in 1894. Nor did Suffolk. Id. Instead, Richmond and Suffolk together
comprised a single Senate district in 1894. Id.
Because neither Richmond nor Suffolk had its own Senate district in 1894, the only way
to perform the comparison required by Section 4 is to combine present-day Richmond and
Suffolk and compare the number of “full ratios” in that combined area with the one Senate
district these two counties comprised in 1894. Id. ¶ 10. Because Richmond and Suffolk must be
combined in order to perform the comparison required by Section 4, one must decide whether to
use Method A or Method B. Id.
Regardless of what one thinks of the relative merits of Method A and Method B, there is
no basis for using one method for the Richmond/Suffolk combination and another method for the
Queens/Nassau combination. Id. ¶ 11. As described above, these areas require combinations for
reasons that are similar but not identical. Id. But there is no rational justification for using
Method A for one area and Method B for the other within the same reapportionment. Id.
9
C.
The Use of the “Combine Before Rounding Down Method” (Method A) in
1972, 1982, and 1992
It is not always possible to ascertain whether the Legislature has used Method A or
Method B because sometimes the two methods yielded the same results and the Legislature did
not explain its methodology. Id. ¶ 12. We know, however, that the Legislature used Method A
in 1972 because the appropriateness of using that method was litigated before and decided by the
Court of Appeals in Schneider v. Rockefeller, 31 N.Y.2d 420 (1972). In Schneider, the Court
held that the Legislature was permitted to use the Combine Before Rounding Down Method
(Method A), and was not constitutionally required to use the Round Down Before Combining
Method (Method B), because the former “more accurately reflects increases in the population of
the territory of the original county—the very basis for which adjustments to the whole number of
senators is made.” Id. at 432-33. The Schneider Court expressly admonished, however, that
although the Legislature “must be accorded some flexibility” in determining which counting
methodology to use, such flexibility is limited by its paramount obligation to make “a good-faith
effort to comply with the mandate of the equal population principle.” Id. at 429-30, 432.
During the 1972, 1982, and 1992 reapportionments, the Legislature used the Combine
Before Rounding Down Method (Method A) when combining counties. Breitbart Aff. ¶ 13.
(The Special Master who was appointed by a federal court in 1982 used Method A as well in the
Senate redistricting plan he prepared for possible use by the federal court. Id.) To be sure, in
some instances during those cycles, the difference between using Method A and Method B with
respect to various county combinations made no difference for the size of the Senate. Id. ¶¶ 1424. But where the two methods yielded different Senate sizes because of the county
10
combinations in any of those areas, Method A was consistently used in 1972, 1982, and 1992.
Id. ¶ 13.
D.
The Politically Motivated Decision to Abandon the “Combine Before
Rounding Down Method” (Method A), and to Switch to the “Round Down
Before Combining Method” (Method B), in 2002
The 2000 Census data was released in or about March 2001. Id. ¶ 25. LATFOR held
public redistricting hearings during the spring and summer of 2001. Id. The purpose of those
hearings was to provide the public with the opportunity to voice opinions, prior to LATFOR
drawing an initial redistricting proposal, regarding what the redistricting plan should look like.
Id.
Because the Legislature had used the Combine Before Rounding Down Method (Method
A) during the 1972, 1982, and 1992 reapportionments, it was generally understood during the
hearing process that LATFOR would use the same methodology in 2002. Id. ¶ 26. Based upon
the reasonable assumption that LATFOR would perform the Senate size calculation in 2002 the
same way the calculation had been performed in 1972, 1982, and 1992, it was generally
understood that the size of the Senate in 2002 would be 61 seats (the same as it had been in 1982
and 1992) because that is the number that would have resulted from applying the decades of
settled practice prior to 2002. Id. Indeed, LATFOR’s website expressly stated throughout 2001
and early 2002 that the size of the Senate would remain 61 districts. Id. Accordingly, during the
LATFOR hearing process throughout 2001 and early 2002, the public presented LATFOR with
proposed 61-seat Senate redistricting plans. Id.
In February 2002, however, LATFOR announced unexpectedly that the size of the Senate
would be increased to 62 seats. Id. ¶ 27. LATFOR made this announcement first by releasing an
unexpected 62-seat plan, and then by posting on its website, several weeks later, a March 7, 2002
11
memorandum written by the attorney for the Senate Republicans, Michael A. Carvin (the “2002
Carvin Memorandum”). Id. & Ex. 1. The 2002 Carvin Memorandum explained that the size of
the Senate would be increased to 62 seats based upon two changes that departed from decades of
precedent for performing the calculation required by Section 4. Id.
First, the 2002 Carvin Memorandum explained that the Bronx would not be counted as it
had been in 1972, 1982, and 1992. Id. ¶ 28.2
Second, LATFOR abandoned the Combine Before Rounding Down Method (Method A)
in favor of using, for the first time in over three decades, the Round Down Before Combining
Method (Method B). Id. ¶ 30. LATFOR adopted the reasoning of the 2002 Carvin
Memorandum, which asserted, without significant analysis, that Method B “is more faithful to
the Constitution” than Method A. Id. The 2002 Carvin Memorandum made this assertion even
though the Court of Appeals found the reverse in Schneider: that Method A “more accurately
reflects increases in the population of the territory of the original county—the very basis for
which adjustments to the whole number of senators is made”—than Method B. 31 N.Y.2d at
432-33.
Whereas using Method A in connection with the Queens/Nassau combination would have
yielded 63 Senate seats in 2002, using Method B yielded 62 Senate seats in 2002. Breitbart Aff.
¶ 31. This is so because Queens had 5.87 “ratios” in 2002, and Nassau had 3.52. Because the
2
The Bronx presents a complication because, whereas Nassau County is wholly
contained within the area that in 1894 was Queens County, Bronx County occupies an
area that in 1894 was partially in New York County and partially in Westchester County.
Breitbart Aff. ¶ 28. The Bronx therefore presents an issue that the Queens/Nassau and
Richmond/Suffolk areas do not: how to determine the number of “full ratios” for the
areas that in 1894 constituted New York and Westchester Counties when their 1894
boundary (the Bronx River) is right in the middle of present-day Bronx County. Id.
12
remainders of .87 and .52 added up to more than one, using Method B instead of Method A—
thereby eliminating these remainders before combining them—yielded one less seat. Id.
Notably, LAFTOR published its 62-seat Senate plan on or about February 14, 2002—
several weeks before the 2002 Carvin Memorandum was published. Id. ¶ 32. In other words,
LATFOR did not inform the public of the supposed constitutional rationale for increasing the
size of the Senate until months after the first round of public hearings had concluded. Id. For
this reason, the public was deprived of any meaningful opportunity to propose alternative 62-seat
Senate plans before LATFOR decided which 62-seat plan to recommend. Id.
Although the 2002 Carvin Memorandum purported to apply a neutral legal analysis, it is
now clear that the Republican majority’s decision to adopt LATFOR’s recommendation to
increase the size of the Senate from 61 seats to 62, but not to 63, was politically motivated. Id. ¶
33. The political motivation in jettisoning decades of precedent with respect to how to calculate
the size of the Senate was revealed in a series of 2001 memoranda authored by Mark Burgeson,
the assistant to Senator Dean G. Skelos (who currently is the Majority Leader of the Senate, and
who in 2001 was the Republican Co-Chair of LATFOR). Id. LATFOR strongly resisted making
the Burgeson memoranda public, asserting that they were protected by “legislative privilege.”
Id. A federal court disagreed, ordering the Senate Majority to release the previously secret
Burgeson memoranda to the plaintiffs in Rodriguez v. Pataki, 280 F. Supp. 2d 89 (S.D.N.Y.
2003).
An internal LATFOR memorandum dated May 4, 2001, entitled “Reapportionment
Areas” (the “May 4, 2001 Memorandum”) confirms that by that date—nine months before the
public was informed of the change—the Senate Republicans already had decided that they likely
would create 62 districts. Breitbart Aff. ¶ 34 & Ex. 2. Mr. Burgeson, the plan’s chief architect,
13
expressly noted in this memorandum that the Republicans had “wiggle room” to create either a
61-seat or a 62-seat plan without running afoul of the one person, one vote rule. Id.
A second internal memorandum dated July 20, 2001 entitled “Size of the Senate” (the
“July 20, 2001 Memorandum”) confirms that the decision to create 62 districts had been settled
by that date, notwithstanding that there had been many internal discussions among the Senate
Republicans about the possibility of creating 63 districts. Id. ¶ 36 & Ex. 3. The July 20, 2001
Memorandum expressly states (a) that the Republicans “have had numerous discussions
regarding the possibility of the Senate increasing in size to 63”; (b) that the “ultimate decision”
would be “made with political numbers for proposed districts at each size in hand”; (c) that a
63rd seat could not be placed anywhere in the Republican-dominated upstate region because the
62-seat plan that already had been drawn had purposely drawn those Republican districts “light”
(emphasis in original)—i.e. they were purposefully underpopulated—in order “to avoid
migration [of a district] downstate,” and that adding a 63rd seat “would exacerbate that
situation”—i.e., make it impossible to avoid giving the 63rd seat to the downstate region without
producing a total population deviation in excess of 10%; and (d) that the chief architect’s view
was that “the only reason to go to 63” districts would be to use the extra district to “combin[e]
politically undesirable areas” in Long Island. Id. (emphasis in original).
A third internal memorandum dated December 18, 2001, entitled “The 135” (the
“December 18, 2001 Memorandum”) is also significant. Id. ¶ 37 & Ex. 4. It confirms that by
that date, there no longer was any discussion or consideration of a Senate size other than 62
seats, even though LATFOR’s website still indicated to the public that there would be 61
districts, and LATFOR was still encouraging the public to propose 61-seat plans. Id. This
memorandum also demonstrates that LATFOR was purposefully manipulating various state law
14
apportionment rules in order to underpopulate the upstate districts and overpopulate the
downstate districts as much as possible without exceeding the 10% total population deviation
limit that Mr. Burgeson believed the one person, one vote principle imposed. Id.
Thus, after secretly deciding in or about the summer of 2001 that it would create 62
Senate districts, LATFOR nonetheless continued to encourage and accept proposals from the
public for 61-district plans, knowingly misleading the public, just as it did again in 2011 and
2012. Id. ¶ 38. Indeed, on February 13, 2002—the day before LAFTOR announced the 62-seat
plan that eventually would become law—LATFOR’s website still said that there would be 61
districts in the 2002 plan. Id.
E.
Chapter 16’s Use of Both Methods Simultaneously in 2012
Notwithstanding that the 2002 Carvin Memorandum plainly resulted from partisan
political calculations rather than neutral, faithful, and evenhanded legal analysis, and
notwithstanding that the methodology it recommended was a radical departure from the
methodology consistently used by the Legislature in 1972, 1982, and 1992, there is no question
that the Legislature firmly concluded, by adopting the reasoning in the 2002 Carvin
Memorandum, that the Round Down Before Combining Method (Method B) is “more faithful to
the Constitution” than the Combine Before Rounding Down Method (Method A). But the
Legislature has now concocted an even more novel, opportunistic, and arbitrary way to interpret
Section 4. Chapter 16 increases the size of the Senate from 62 seats to 63 by using both counting
methodologies—Method A and Method B—simultaneously.
Given the population figures revealed in the 2010 Census, there are two places where the
choice of methodology affects the size of the Senate: Nassau/Queens (which must be combined
to compare those counties to 1894 because Nassau did not exist at the time) and
15
Suffolk/Richmond (which are combined because those counties were combined in a single
Senate district in 1894). Id. ¶ 40. Using the Round Down Before Combining Method (Method
B)—to which the Legislature switched in 2002 because it supposedly “is more faithful to the
Constitution”—would yield 62 districts this year, the same number as in 2002. Id. But in a
memorandum that LATFOR published on its website on January 6, 2012 (the “2012 Carvin
Memorandum”), the Senate Majority’s attorney—the same attorney who authored the 2002
memorandum—instructed the Legislature to use the Round Down Before Combining Method
(Method B) with respect to the Nassau/Queens combination, but to use the Combine Before
Rounding Down Method (Method A) with respect to the Suffolk/Richmond combination. Id. &
Ex. 5.
The Legislature adopted both the conclusion and the rationale in the 2012 Carvin
Memorandum. Id. ¶ 41. LATFOR posted the 2012 Carvin Memorandum on its website with the
following explanation:
The State Constitution requires 150 Assembly districts and contains a formula for
the determination of the number of Senate districts. Based on the formula and
analysis of the 2010 census data, the size of the Senate will increase by 1 seat to
63 (Click here to view technical determination of the size of the Senate).
Id. By clicking on the hyperlinked words “click here,” a LATFOR website visitor is directed to
the 2012 Carvin Memorandum, with the 2002 Carvin Memorandum attached. Id.
The Legislature therefore calculated the size of the new 2012 Senate by using two
different methodologies—including the very methodology that the Legislature expressly rejected
in 2002—within the same reapportionment plan. Id. ¶ 42. Using this unprecedented and
illogical mix-and-match formula, the Legislature determined that the Senate would be increased
to 63 seats. Id.
16
Undoubtedly aware that a cherry-picking approach would invite scrutiny, the 2012
Carvin Memorandum attempts to mask its internal methodological inconsistency. In the table
entitled “2010 Senate Size Calculation” that is appended to it, the 2012 Carvin Memorandum
lists only the combined population, and the number of “full ratios” computed from the combined
population, of Richmond and Suffolk Counties, rather than listing the individual populations and
the individual number of “full ratios” of those two counties separately, as the 2012 Carvin
Memorandum does for every other county that is sufficiently populous to affect the Senate size.
Id. ¶ 43 & Ex. 5. By definition, to list only the combined populations of Richmond and Suffolk
is to use the Combine Before Rounding Down Method (Method A). Id. ¶ 43. After all, one
cannot round down the individual “ratios” for those two counties before combining them without
first using their individual populations to calculate their respective “ratios.” Id. The table
entitled “2010 Senate Size Calculation” in the 2012 Carvin Memorandum purposefully lists only
the combined population of Richmond and Suffolk because LATFOR understood that its
decision (which the Legislature has adopted) to use both Method A and Method B to arrive at a
Senate size of 63 districts is irrational, arbitrary, purposefully discriminatory, and therefore
unconstitutional. Id.
F.
The Decision to Use Both Methods Simultaneously Was Political, Not the
Result of any Effort by the Legislature to Apply the Constitution Faithfully,
Consistently, or Evenhandedly
The asserted justifications for treating the Richmond/Suffolk combination differently
from Queens/Nassau combination offered in the 2012 Carvin Memorandum are just pretexts
designed to mask the Legislature’s actual motivation in increasing the size of the Senate to 63
seats: the desire to engage in partisan gerrymandering in an effort to prevent the elimination of
one of their upstate incumbents, thereby best positioning the Republican Majority to preserve its
17
control over the Senate. Id. ¶ 44. Given New York’s political demographics, the Senate
Republicans cannot preserve their majority without purposefully manipulating population
deviations to their advantage. Id. Their goal is to maximize the number of Republican districts
by underpopulating Republican-dominated districts and overpopulating Democrat-dominated
districts to the greatest extent possible. Id.
Not surprisingly, Chapter 16’s 63-seat plan for 2012 is severely malapportioned. Id. ¶
45. Twenty-five of the 26 upstate districts in the plan are significantly underpopulated, and all of
the New York City districts in the plan are significantly overpopulated. Id. The contiguous
cluster of 26 underpopulated upstate districts (SDs 38-63) – comprising northern Westchester,
Rockland, and all of the 53 counties to the north – has a total population of 7,635,808. Id. With
a statewide average district population of 307,356, those 26 upstate districts have enough
population for 24.84 districts of the average population. Id. In other words, the upstate region
gets 1-and-1/7th district more than its share of the state population entitles it to. Id. And the
contiguous cluster of 26 districts wholly or partly within New York City (SDs 10-34 and 36) has
enough population for 26.93 districts of the average population. Id. In other words, New York
City gets almost one full district less than its share of the state population entitles it to. Id.
The total deviation (the range between the two extreme districts) in the Senate plan
enacted by Chapter 16 is 8.80%, which is marginally smaller than the total deviation in the 2002
Senate plan (9.78%). Id. ¶ 46. But more significant measures are provided by the standard
deviation and average deviation, which take account of all of the districts in a plan, not just the
two extreme cases. Id. By these measures, the Chapter 16 Senate plan is far worse than the 2002
Senate plan. Id. The 2002 plan had a standard deviation from the mean of 2.72%, and an
average deviation of 2.22%. Id. Chapter 16’s Senate plan has a standard deviation of 3.85%,
18
and an average deviation of 3.67%. Id. It has 23 districts with a population more than 4% below
the ideal, and 26 districts with a population more than 3% above the ideal. Id. In words, there is
a much bigger difference on the whole between the underpopulated districts and the
overpopulated districts than there was 2002. Id. The Chapter 16 Senate plan also divides far
more counties than is necessary. Id.
ARGUMENT
I.
BECAUSE INCREASING THE SIZE OF THE SENATE TO 63 SEATS IN 2012
VIOLATES ARTICLE THREE, SECTION FOUR OF THE NEW YORK
CONSTITUTION, THIS COURT SHOULD DECLARE CHAPTER 16
UNCONSTITUTIONAL AND ENJOIN ITS IMPLEMENTATION
A.
The Legislature’s Use of Method A in Richmond/Suffolk and Method B in
Queens/Nassau Is Inconsistent and Arbitrary
It has been settled law for well over a century that New York courts must interpret
different parts of the Constitution consistently. See, e.g., Settle v. Van Evrea, 4 Sickels 280, 28485, 49 N.Y. 280, 284-85 (1872) (noting that clauses of the State Constitution should be
interpreted “in harmony with other parts of the same section and other parts of the Constitution
relating to the same subject,” and that it is “in the spirit of a principal canon for the interpretation
of written instruments, that every part should be read together, and, when possible, consistently
with the language employed, such interpretation given to each clause as will make every other
clause and part operative and effective”); see also Dist. of Columbia v. Heller, 554 U.S. 570, 580
(2008) (holding that the words “the people” must be interpreted consistently throughout the
federal Constitution); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 224 (1995) (reaffirming
that one of the guiding principles in constitutional analysis is “consistency”); Good Samaritan
Hospital v. Shalala, 508 U.S. 402, 417 (1993) (holding that “the consistency of an agency’s
position is a factor in assessing the weight that position is due.”). Given that different parts of
19
the Constitution may not be applied inconsistently, it is even more evident that a single provision
of the Constitution may not be applied inconsistently. Because the Legislature’s application of
the formula prescribed in Section 4 is internally inconsistent and arbitrary, it is unconstitutional –
period – without regard to whether the Legislature’s motivation was impermissibly partisan.
There is no logical basis for using Method A in Richmond/Suffolk and Method B in
Queens/Nassau. In 2002, the Legislature’s concluded, after ostensibly considering the issue
carefully, that Method B is, as Mr. Carvin put it, “more faithful to the Constitution.” Breitbart
Aff. Ex. 1.4 Consistent with this position, the Legislature may not use Method A in
Richmond/Suffolk, and it certainly may not do so when it is using Method B in Queens/Nassau
in the same redistricting. Of course, there are certain differences between Richmond/Suffolk and
Queens/Nassau. Id. ¶¶ 11, 49. For example, Richmond and Suffolk are not contiguous, but that
is not relevant to the use of Method A or Method B. And Richmond and Suffolk shared a single
Senate district in 1894, but so did the area that now comprises Queens and Nassau. None of the
differences between Richmond/Suffolk and Queens/Nassau provides a remotely cogent basis for
applying Method A to one and Method B to the other. Id.
Attempting to concoct a reason for treating Richmond/Suffolk and Queens/Nassau
differently where none exists, the 2010 Carvin Memorandum asserts that Method A has always
been used in Richmond/Suffolk. Breitbart Aff. Ex. 5 (“The proper methodology . . . is to
combine Richmond and Suffolk’s populations . . . as has been done in every redistricting.”); see
also Ted Phillips and Sid Cassese, State Dems Sue to Block Redistricting Plan, NEWSDAY, Jan.
4
LATFOR did not explain why it took a different view than the Court of Appeals
in Schneider, which held that Method A “more accurately reflects increases in the
population of the territory of the original county—the very basis for which adjustments to
the whole number of senators is made”—than Method B. 31 N.Y.2d at 432-33.
20
31, 2012 (quoting Mr. Carvin as explaining that LATFOR is “using exactly the same
methodology as last time”). That is demonstrably false.
It is undisputed that the Legislature used Method A consistently in 1972, 1982, and 1992.
Breitbart Aff. ¶¶ 12-24. In 2002, the Legislature departed from this three-decades-old practice
because it purportedly concluded that Method B is “more faithful to the Constitution.” Id. Ex. 1.
Notably, in announcing this sharp departure from prior practice, the 2002 Carvin Memorandum
said nothing whatsoever about applying a different counting methodologies in Richmond/Suffolk
and Queens/Nassau, let alone did it explain why Method B “is more faithful to the Constitution”
in Queens/Nassau but not in Richmond/Suffolk. Id. To be sure, it was irrelevant whether the
Legislature used Method A or Method B for Richmond/Suffolk in 2002 because it is undisputed
that each methodology would have yielded the same number of whole ratios for the
Richmond/Suffolk combination in 2002. Breitbart Aff. ¶¶ 20-21. But if LATFOR had really
concluded in 2002 that Method A was to be used with respect to Richmond/Suffolk even though
Method B is “more faithful to the Constitution,” then surely Mr. Carvin would have
acknowledged that and explained why. Mr. Carvin did not just forget to tell anyone that Method
B is “more faithful to the Constitution” in one part of the State but that Method A nonetheless
must be used in another. Rather, LATFOR never addressed whether to use Method A or Method
B in Richmond in 2002 because there was no mathematical reason to do so. Id. By falsely
claiming that the Legislature used Method A for Richmond/Suffolk in 2012 because that is what
it did in 2002, Defendants obviously are attempting to deflect attention from the Legislature’s
indefensible use of both Method A and Method B in 2012.
In any event, even if it were true that the Legislature used both Method A and Method B
in 2002—though it is not—that still would not explain why it allegedly used both methodologies
21
during the last redistricting. To this day, neither the Legislature nor LATFOR has provided any
substantive explanation for their inconsistency. By merely noting what it allegedly did in the
past, without making any effort to explain the basis for its alleged past methodological
inconsistency, LATFOR plainly attempted to duck a question to which it has no sensible answer.
In United States v. Santos, 553 U.S. 507 (2008), Justice Scalia, writing for a plurality of
the Court, “forcefully rejected” the invitation to “giv[e] the same word, in the same statutory
provision, different meanings in different factual contexts.” Id. at 522 (emphasis in original).
Justice Scalia explained that doing so “would render every statute a chameleon” and “would
establish within our jurisprudence . . . the dangerous principle that judges can give the same
statutory text different meanings in different cases.” Id. at 522-23 (quotations omitted). Surely it
would be at least as “dangerous” to interpret the Constitution to allow the Legislature to use two
different mathematical methodologies inconsistently during the same redistricting. Rather, the
Legislature’s use of Method A in Richmond/Suffolk and Method B in Queens/Nassau is, as the
Supreme Court put it in another case, precisely the kind of “unexplained inconsistency”—and a
glaring one at that—that renders the decision to add a 63rd seat unconstitutional. Nat’l Cable &
Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005).
Because the Legislature has “play[ed] fast and loose” with the requirements of Section 4,
Chapter 16 must be “set aside.” Schneider, 31 N.Y.2d at 430.
B.
The Legislature’s Use of Method A in Richmond/Suffolk and Method B in
Queens/Nassau Is Purposefully Discriminatory
The Legislature’s decision to increase the size of the Senate to 63 seats in 2012 violates
the New York Constitution for a second, independent reason: It is a transparently partisan
attempt by the Republicans to maintain their control of the Senate. Although a state has a
22
modicum of discretion under the one person, one vote rule to deviate from strict population
equality to pursue other good-faith redistricting goals, and although some courts have suggested
that a state may even be able to deviate from strict population equality in order to pursue partisan
goals, no court has ever held that the Legislature has any discretion to manipulate the Senate-size
formula prescribed in Section 4 in order to maximize partisan advantage.
Respondents cannot credibly deny that the Senate Republicans made the decision to
increase the size of the Senate from 61 seats to 62 in 2002 for partisan purposes. Though they
did their best to cloak their partisan maneuvering behind the veil of “legislative privilege,” the
internal memoranda that the Republicans were compelled to produce in subsequent litigation
confirm beyond dispute that they believed they had “wiggle room” to create either a 61-seat or a
62-seat plan; that a 62-seat plan enabled them to drawn the upstate districts purposefully “light”
in order “to avoid migration [of a district] downstate”; and that it only would have
“exacerbate[d]” the vulnerability of their plan to a one person, one vote challenge if they had
tried to add a 63rd seat in order to “combin[e] politically undesirable areas” in Long Island.
Even though LATFOR knew by the summer of 2001 at the latest that the Senate would be
increased to 62 seats, LATFOR nonetheless held sham hearings throughout 2001 and accepted
comments from the public regarding a variety of 61-seat alternatives before announcing
unexpectedly in February 2002 that a 62nd seat would be added. The facts confirm that the 2002
Carvin Memorandum was not the result of faithful, neutral, evenhanded legal analysis, but rather
an after-the-fact subterfuge designed to justify the result that most benefited the Senate
Republicans. Breitbart Aff. Exs. 2-4.
The political game that the Legislature has played in 2012 is even worse. Chapter 16 is a
naked partisan gerrymander. Breitbart Aff. ¶ 44. It is severely malapportioned, overpopulating
23
virtually every New York City district and underpopulating virtually every upstate district in a
manner that deprives the New York City area of a district. Id. ¶¶ 45-46. It divides far more
counties than is necessary. Id. ¶ 46. It plainly constituted the most severe and punitive partisan
gerrymander that the Republicans believe they can get away with within the limits of the one
person, one vote doctrine. Indeed, the best evidence of the Republicans’ mens rea is the fact that
the 2012 Carvin Memorandum tried in vain to hide the fact that LATFOR had used both Method
A and Method B simultaneously in an illicit attempt to add a 63rd Senate district. Id. ¶ 43 & Ex.
5.
The Republicans had no choice. The Senate plan that they drew in 2002 stretched their
“wiggle room” to the limit because that plan contained a total population deviation of 9.78%,
within a whisper of the 10% outer limit. Id. ¶ 47. Because the upstate region lost population
relative to the New York City region over the last decade, and because the new prisoner
allocation statute requires the Legislature to remove from various upstate districts thousands of
prisoners who used to be counted there, the Senate Republicans understood that they simply
could not perpetuate their gerrymander without adding a 63rd Senate seat. Id. The 62-seat plan
that was drawn in 2002 is now so dramatically malapportioned, based on the 2010 Census data,
that a 62-seat plan could not be brought into compliance with the one person, one vote rule
without shifting an entire district from the upstate region to the New York City region—precisely
the result that the Republicans are desperately trying to avoid for political purposes. Id.
This is unconstitutional. Even assuming the Legislature has some discretion to choose
between competing legitimate counting methodologies when performing the Senate size
calculation prescribed in Section 4, the Court of Appeals made clear in Schneider that any such
discretion is cabined (i) by the obligation to make “a good-faith effort to comply with the
24
mandate of the equal-population principle,” and (ii) by the obligation not to “unduly depart[]
from our State constitutional command that the integrity of counties be preserved.” 31 N.Y.2d at
428-29; see also In re Fay, 291 N.Y. 198, 210-11 (1943) (“We must assume that increase in
Senate representation was adopted after effect was given in good faith to each limitation upon
the legislative function of reapportionment found in article III, section 4, of the Constitution.”)
(emphasis added). No case supports the untenable proposition that the Legislature has discretion
to pick and choose counting methodologies opportunistically—let alone to use two inconsistent
methodologies simultaneously—in order to enable the majority political party to maintain its
control of the Senate.
To the contrary, fixing the size of the Senate in the Constitution, and providing a specific
mathematical formula for determining when and how to expand the size of the Senate in
response to future population growth, was designed to make that judgment objective and to
insulate it from manipulation by political actors. See 3 CHARLES Z. LINCOLN, THE
CONSTITUTIONAL HISTORY OF NEW YORK 218 (1906) (explaining that in designing Section 4, the
Framers of the 1894 Constitution intended the formulae prescribed in Section 4 to be
“mechanical contrivance[s]” with “little room for the exercise of legislative discretion”); id. Vol.
4, p. 346 (explaining that the Framers of the 1894 Constitution imposed a “more rigid rule” for
Senate districts than had existed previously in order to divest the Legislature of “discretionary
power, which was not subject to judicial review”). Because Section 4 governs the fundamental
structure of one of the State’s most important political institutions, it contains immutable ground
rules that each political party is bound to respect. Were it otherwise, then Section 4 would
present an open invitation for recurring partisan manipulation during every redistricting cycle. In
Cox v. Larios, 542 U.S. 947 (2004) (Mem.), Justices Stevens and Breyer explained that it would
25
be inappropriate “to weaken the one-person, one-vote standard” because “the equal-population
principle remains the only clear limitation on improper districting practices” such as partisan
gerrymandering and, for that reason, “we must be careful not to dilute its strength.” Id. at 949-50
(Stevens, J., concurring). The same is true of the formula for increasing the size of the Senate
prescribed in Section 4. Even if the Legislature has some discretion to interpret the requirements
of Section 4 as part of a good-faith effort to comply with the Constitution, the Legislature plainly
has no discretion to manipulate Section 4 in order to maximize its ability to engage in partisan
mischief.
The constitutional violation is even more pronounced in this case because of the manner
in which LATFOR rigged the hearing process. The 2010 Census data were released in March
2011. Breitbart Aff. ¶ 51. Once it received the Census data, LATFOR had all the information it
needed to decide whether Section 4 required the size of the Senate to be increased from 62 seats
to 63. Id. During the public hearing process – which began in July 2011 and concluded in
November 2011 – LATFOR failed to inform the public that it had decided to adopt a 63-seat
plan. Id. ¶ 54. Indeed, LATFOR did not announce this decision until January 6, 2012, by which
time it already had held all 14 of the public hearings that supposedly had been convened to
afford the public the opportunity to express their views on redistricting alternatives. Id. When
asked during the hearings whether LATFOR might be considering increasing the size of the
Senate, Defendant Senator Nozzolio repeatedly responded by stating that LATFOR would not
consider that issue until the public had weighed in on the number of Senators it wanted (as if
public opinion has anything to do with the objective population-based mathematical formula
prescribed in Section 4). Id. ¶¶ 55-57. By failing to inform the public of its decision until all 14
of the hearings were over, LATFOR ensured that interested citizens would have no meaningful
26
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
___________________________________________x
DANIEL MARKS COHEN; RAQUEL BATISTA;
PURVA BEDI; TODD BREITBART; RAYMOND W.
ENGEL; JACQUELINE G. FORRESTAL;
PATRICK L. FURLONG; ANDREW KULYK;
JERRY C. LEE; IRENE VAN SLYKE; and SENATOR
MARTIN MALAVÉ DILAN,
Index No. 12-102185
AFFIDAVIT OF
TODD BREITBART
Petitioners,
-againstGOVERNOR ANDREW M. CUOMO; LIEUTENANT
GOVERNOR AND PRESIDENT OF THE SENATE
ROBERT J. DUFFY; SENATE MAJORITY
LEADER AND PRESIDENT PRO TEMPORE OF
THE SENATE DEAN G. SKELOS; SPEAKER OF
THE ASSEMBLY SHELDON SILVER; and THE
NEW YORK STATE BOARD OF ELECTIONS,
Respondents.
___________________________________________x
STATE OF NEW YORK
) ss.:
COUNTY OF NEW YORK )
TODD BREITBART, being duly sworn, deposes and says under penalty of perjury as
follows:
1.
I directed the staff work on redistricting for successive Minority (Democratic)
Leaders of the New York State Senate from 1980 through my retirement at the end of 2005. I
had extensive experience drafting redistricting proposals, and evaluating the proposals of others,
according to the provisions of Article III, Section 4 of the NYS Constitution and supervening
federal requirements, including 14th Amendment population equality standards and the Voting
Rights Act of 1965. I submitted an affidavit as an expert witness for the Plaintiffs in Rodriguez
v. Pataki (2004), and as such I was deposed by counsel for the Defendants and noticed for crossexamination (although the Defendants later chose to forego the cross-examination). In 2007 I
was the principal consultant to the Committee on Election Law of the Bar Association of the City
of New York in the development of the Association’s report on reform of the New York State
redistricting process, A Proposed New York State Constitutional Amendment to Emancipate
Redistricting from Partisan Gerrymanders: Partisanship Channeled for FairLine-Drawing
(March 2007), and I was the principal drafter of the text of the report. Participating in the 201112 redistricting process, no longer as a legislative staff member, but independently as a
concerned citizen, I testified four times before LATFOR and submitted voluminous written
testimony on several aspects of the process, including the determination of the number of Senate
districts. I submitted for LATFOR’s consideration a thoroughly developed and extensively
documented proposal for a 62-seat Senate. I also am a Petitioner in this special proceeding. I
submit this Affirmation in support of Petitioners’ petition pursuant to Unconsolidated Laws §
4221 to enjoin Respondents from enforcing Chapter 16 of the Laws of 2012 (“Chapter 16”),
which, among other things, increased the size of the State Senate to 63 seats from 62.
A.
The Formula Prescribed in Article III, Section 4 of the Constitution
2.
The relevant language in Section 4 provides that:
[T]he Senate shall always be comprised of fifty members, except that if any
county having three of more senators at the time of any [future] apportionment
shall be entitled on such ratio to an additional senator or senators, such additional
senator or senators shall be given to such county in addition to the fifty senators,
and the whole number of senators shall be increased to that extent.
NY Const. Art III, §4. The Court of Appeals has interpreted this language several times since
1894. Those decisions establish the procedure that Section 4 requires in determining whether
and the extent to which to increase the size of the Senate.
3.
First, the total population of the State, as determined by the most recent Census, is
divided by 50 – the minimum number of Senate seats. This quotient produces the so-called
“ratio” figure for that year. Counties having three or more “full ratios” – that is, more than 6%
2
of the State’s total population – are then allotted one Senate district for each “full ratio.” The
number of districts allotted to each county over the 6% threshold is then compared with the
number of districts such county was allotted in 1894. The increase, if any, is then added to the
50 original districts to yield the “whole number” of districts in the new Senate. Decreases, if
any, are disregarded.
B.
The Two Possible Counting Methodologies for Combining Counties, and the
Two Areas that Matter
4.
The language of Section 4 regarding the size of the Senate does not expressly
contemplate the creation of counties that did not exist in 1894. For example, the area that in
1894 was known as Queens County now includes, with only insubstantial differences, the area
that currently contains both Queens and Nassau Counties. Because Section 4 requires an
apples-to-apples comparison of the number of “full ratios” of population in the most populous
counties relative to the number of districts those counties had in 1894, one must combine the
populations of present-day Queens and Nassau in order to make this comparison.
5.
There are two different ways in which one could calculate the total current
number of “full ratios” for a county combination such as Queens/Nassau: the Combine Before
Rounding Down Method (first combining the current populations of the counties, then dividing
the combined population by the “ratio” number, and then rounding the number of “ratios” down
to the nearest-lower whole number of “full ratios”) (Method A); or (b) the Round Down Before
Combining Method (first dividing the individual populations of each county by the “ratio”
number, then rounding each individual quotient down to the nearest-lower whole number of “full
ratios,” and then adding together the two rounded-down numbers of “full ratios”) (Method B).
6.
Sometimes these two methods lead to the same result, but sometimes they do not.
For example, the 2010 Census revealed that Queens has a population of 2,230,722 and that
Nassau has a population of 1,339,532. The “ratio” this year is 387,562 (the total New York
3
population of 19,378,102 divided by 50). If one uses Method A, then the populations of Queens
and Nassau are first combined, that total number (3,570,254) is then divided by the “ratio” of
387,562, and the resulting quotient of 9.21 is then rounded down to 9 “full ratios.” But if one
uses Method B, the Round Down Before Combining Method, then each county’s population is
first divided by the “ratio,” which yields 5.76 “ratios” for Queens (2,230,722 divided by
387,562) and 3.46 “ratios” for Nassau (1,339,532 divided by 387,562), those “ratios” are then
rounded down to 5 and 3, respectively, and the rounded-down “full ratios” are then summed to
yield 8 “full ratios.” The difference – 9 “full ratios” versus 8 – means that the Combine Before
Rounding Down Method would yield, based on these numbers, one more Senate seat than the
Round Down Before Combining Method.
7.
There are two different sets of counties where the difference between applying
Method A and Method B sometimes affects the size of the Senate: Queens/Nassau and
Richmond/Suffolk. These two areas both (i) yield more than three full ratios (6% of the total
State population) and thus are relevant to the Senate size calculus and (ii) for somewhat varying
reasons, require the combination of county populations in order to perform the comparison
required by Section 4. As will be explained in the following subsections, each of these areas
requires the combination of county populations (and thus the choice between Method A and
Method B) for somewhat different reasons. But none of the differences between these areas
justifies treating them differently when performing the county combination math required by
Section 4.
(i)
8.
Queens/Nassau
As previously discussed, the area that in 1894 was known as Queens County now
includes, with only insubstantial differences, the area that currently contains both Queens and
Nassau Counties. Thus, in order to perform an apples-to-apples comparison of the number of
4
“full ratios” in the Queens/Nassau area today and the number of Senate districts in the area that
Queens County comprised in 1894, one must combine either the populations of present-day
Queens and Nassau Counties (Method A) or their individual “full ratios” (Method B).
(ii)
9.
Richmond/Suffolk
The Richmond/Suffolk combination presents a similar twist. Because Richmond
and Suffolk Counties both existed in 1894 and both exist today, it is easy to compare the number
of “ratios” in present-day Richmond to the number of “ratios” that Richmond had in 1894. The
same is true for Suffolk. But it is impossible to compare the number of present-day “ratios” in
Richmond to the number of Senate districts that Richmond had in 1894, which is the comparison
that Section 4 requires. This is so because Richmond, by itself, did not have any Senate districts
in 1894. Nor did Suffolk. Instead, Richmond and Suffolk shared a single Senate district in
1894. The identical problem arises in making the comparison for Suffolk County.
10.
Because neither Richmond nor Suffolk had its own Senate district in 1894, the
only way to perform the comparison required by Section 4 is to combine present-day Richmond
and Suffolk and compare the number of “full ratios” in that combined area with the one Senate
district that these two counties shared in 1894. Because Richmond and Suffolk must be
combined in order to perform the comparison required by Section 4, one must decide whether to
use Method A or Method B.
11.
Regardless of what one thinks of the relative merits of Method A and Method B,
there is no basis for using one method for the Richmond/Suffolk combination and another
method for the Queens/Nassau combination. As described above, these areas require
combinations for reasons that are similar but not identical. But there is no rational justification
for using Method A for one area and Method B for the other within the same reapportionment.
5
C.
The Use of the “Combine Before Rounding Down Method”
(Method A) in 1972, 1982, and 1992
12.
It is not always possible to ascertain whether the Legislature has used Method A
or Method B because sometimes the two methods yield the same results. We know, however,
that the Legislature used Method A in 1972 because the appropriateness of using that method
was litigated before and decided by the Court of Appeals in Schneider v. Rockefeller, 31 N.Y.2d
420 (1972). In Schneider, the Court held that the Legislature was permitted to use the Combine
Before Rounding Down Method (Method A), and was not constitutionally required to use the
Round Down Before Combining Method (Method B), because the former “more accurately
reflects increases in the population of the territory of the original county – the very basis for
which adjustments to the whole number of senators is made.” Id. at 432-33. The Schneider
Court expressly admonished, however, that although the Legislature “must be accorded some
flexibility” in determining which counting methodology to use, such flexibility is cabined by the
paramount obligation to make “a good-faith effort to comply with the mandate of the equal
population principle.” Id. at 429-30, 432.
13.
During the 1972, 1982, and 1992 reapportionments, the Legislature used the
Combine Before Rounding Down Method (Method A) when combining counties. (The Special
Master who was appointed by a federal court in 1982 used Method A as well in the Senate
redistricting plan he prepared for possible use by the federal court.) To be sure, as demonstrated
below, in some instances during those cycles, the difference between using Method A and
Method B with respect to various county combinations made no difference with respect to the
size of the Senate. But where the two methods yielded different Senate sizes because of the
county combinations in any of those areas, Method A was consistently used in 1972, 1982, and
1992.
6
14.
In 1972, the ratio of apportionment was 364,825(the total state population of
approximately18,241,266 divided by 50). The population of Richmond County according to the
1970 Census was 295,443. This was less than one full ratio. The population of Suffolk County
according to the 1970 Census was 1,127,030. This yielded 3.09 ratios or, rounding down, three
full ratios. If one used Method A, one would have aggregated the populations of these two
counties and divided the total combined population (1,422,473) by 364,825, which yields a
quotient of 3.90 ratios or a total of three full ratios for the combined area. If one used Method B,
one would have added the zero full ratios for Richmond to the three full ratios for Suffolk and
similarly yielded a total of three full ratios for the combined area. Hence, using Method A or
Method B would not have made a difference for Richmond/Suffolk in 1972.
15.
The population of Queens County according to the 1970 Census was 1,987,174.
This yielded 5.45 ratios or, rounding down, five full ratios. The population of Nassau County
according to the 1970 Census was 1,428,838. This yielded 3.92 ratios or, rounding down, three
full ratios. If one used Method A, one would have aggregated the populations of these two
counties and divided the total combined population (3,416,012) by 364,825, which yields a
quotient of 9.36 ratios or a total of nine full ratios for the combined area. If one used Method B,
one would have added the five full ratios for Queens to the three full ratios for Nassau and
yielded a total of eight full ratios for the combined area. Hence, using Method A or Method B
did make a difference for Queens/Nassau in 1972, with Method A yielding one more Senate
district than Method B. In Schneider, the Court of Appeals concluded that Method A should be
used in Queens/Nassau in 1972 because, according to the Court, Method A “more accurately
reflect[ed] increases in the population of the territory of the original county.” 31 N.Y.2d at 43233.
7
16.
In 1982, the ratio of apportionment was 351,161 (the total state population of
approximately 17,558,072 divided by 50). The population of Richmond County according to the
1980 Census was 352,029. This yielded one full ratio. The population of Suffolk County
according to the 1980 Census was 1,284,231. This yielded 3.66 ratios or, rounding down, three
full ratios. If one used Method A, one would have aggregated the populations of these two
counties and divided the total combined population (1,636,260) by 351,161, which yields a
quotient of 4.66 ratios or a total of four full ratios for the combined area. If one used Method B,
one would have added the one full ratio for Richmond to the three full ratios for Suffolk and
similarly yielded a total of four full ratios for the combined area. Hence, using Method A or
Method B would not have made a difference for Richmond/Suffolk in 1982.
17.
The population of Queens County according to the 1980 Census was 1,891,325.
This yielded 5.39 ratios or, rounding down, five full ratios. The population of Nassau County
according to the 1980 Census was 1,321,582. This yielded 3.76 ratios or, rounding down, three
full ratios. If one used Method A, one would have aggregated the populations of these two
counties and divided the total combined population (3,212,907) by 351,161, which yields a
quotient of 9.15 ratios or a total of nine full ratios for the combined area. If one used Method B,
one would have added the five full ratios for Queens to the three full ratios for Nassau and
yielded a total of eight full ratios for the combined area. Hence, using Method A or Method B
did make a difference for Queens/Nassau in 1982, with Method A yielding one more Senate
district than Method B.
18.
In 1992, the ratio of apportionment was 359,809 (the total state population of
approximately 17,990,455 divided by 50). The population of Richmond County according to the
1990 Census was 378,977. This yielded one full ratio. The population of Suffolk County
according to the 1980 Census was 1,321,864. This yielded 3.67 ratios or, rounding down, three
8
full ratios. If one used Method A, one would have aggregated the populations of these two
counties and divided the total combined population (1,700,841) by 359,809, which yields a
quotient of 4.73 ratios or a total of four full ratios for the combined area. If one used Method B,
one would have added the one full ratio for Richmond to the three full ratios for Suffolk and
similarly yielded a total of four full ratios for the combined area. Hence, using Method A or
Method B would not have made a difference for Richmond/Suffolk in 1992.
19.
The population of Queens County according to the 1990 Census was 1,951,598.
This yielded 5.42 ratios or, rounding down, five full ratios. The population of Nassau County
according to the 1980 Census was 1,287,348. This yielded 3.58 ratios or, rounding down, three
full ratios. If one used Method A, one would have aggregated the populations of these two
counties and divided the total combined population (3,238,946) by 359,809, which yields a
quotient of 9.002 ratios or a total of nine full ratios for the combined area. (I have expressed this
quotient to three decimal places because it would not be clear if it were rounded off to only two
decimal places – 9.00 – that nine full ratios had been achieved.) If one used Method B, one
would have added the five full ratios for Queens to the three full ratios for Nassau and yielded a
total of eight full ratios for the combined area. Hence, using Method A or Method B did make a
difference for Queens/Nassau in 1992, with Method A yielding one more Senate district than
Method B.
20.
In 2002, the ratio of apportionment was 379,529 (the total state population of
approximately 18,976,457 divided by 50). The population of Richmond County according to the
2000 Census was 443,728. This yielded one full ratio. The population of Suffolk County
according to the 2000 Census was 1,419,369. This yielded 3.74 ratios or, rounding down, three
full ratios. If one used Method A, one would have aggregated the populations of these two
counties and divided the total combined population (1,863,097) by 379,529, which yields a
9
quotient of 4.91 ratios or a total of four full ratios for the combined area. If one used Method B,
one would have added the one full ratio for Richmond to the three full ratios for Suffolk and
similarly yielded a total of four full ratios for the combined area. Hence, using Method A or
Method B would not have made a difference for Richmond/Suffolk in 2002.
21.
For this reason, Mr. Carvin’s suggestion that the Legislature used Method A for
Richmond/Suffolk in 2002 is at best misleading. The fact is that we do not know whether the
Legislature used Method A or Method B for Richmond/Suffolk in 2002 because it did not make
a difference, and because Mr. Carvin did not discuss the issue in the 2002 Carvin Memorandum.
22.
The population of Queens County according to the 2000 Census was 2,229,379.
This yielded 5.87 ratios or, rounding down, five full ratios. The population of Nassau County
according to the 2000 Census was 1,334,544. This yielded 3.52 ratios or, rounding down, three
full ratios. If one used Method A, one would have aggregated the populations of these two
counties and divided the total combined population (3,563,923) by 379,529, which yields a
quotient of 9.39 ratios or a total of nine full ratios for the combined area. If one used Method B,
one would have added the five full ratios for Queens to the three full ratios for Nassau and
yielded a total of eight full ratios for the combined area. Hence, using Method A or Method B
did make a difference for Queens/Nassau in 2002, with Method A yielding one more Senate
district than Method B.
23.
In 2012, the ratio of apportionment is 387,562 (the total state population of
approximately 19,378,102 divided by 50). The population of Richmond County according to the
2010 Census is 468,730. This yields one full ratio. The population of Suffolk County according
to the 2010 Census is 1,493,350. This yields 3.85 ratios or, rounding down, three full ratios. If
one uses Method A, one would aggregate the populations of these two counties and divid the
total combined population (1,962,080) by 387,562, which yields a quotient of 5.06 ratios or a
10
total of five full ratios for the combined area. If one uses Method B, one would add the one full
ratio for Richmond to the three full ratios for Suffolk and yield a total of four full ratios for the
combined area. Hence, using Method A or Method B does make a difference for
Richmond/Suffolk in 2012, with Method A yielding one more Senate district than Method B.
24.
The population of Queens County according to the 2010 Census is 2,230,722
This yields 5.76 ratios or, rounding down, five full ratios. The population of Nassau County
according to the 2010 Census is 1,339,532. This yields 3.46 ratios or, rounding down, three full
ratios. If one used Method A, one would aggregate the populations of these two counties and
divide the total combined population (3,570,254) by 387,562, which yields a quotient of 9.21
ratios or a total of nine full ratios for the combined area. If one uses Method B, one would add
the five full ratios for Queens to the three full ratios for Nassau and yield a total of eight full
ratios for the combined area. Hence, using Method A or Method B does make a difference for
Queens/Nassau in 2012, with Method A yielding one more Senate district than Method B.
D.
The Politically Motivated Decision to Abandon the “Combine Before
Rounding Down Method” (Method A), and to Switch to the “Round Down
Before Combining Method” (Method B), in 2002
25.
The 2000 Census data was released in or about March 2001. LATFOR held
public redistricting hearings during the spring and summer of 2001. The purpose of those
hearings was to provide the public with the opportunity to voice opinions, prior to LATFOR
drawing an initial redistricting proposal, regarding what the redistricting plan should look like.
26.
Because the Legislature had used the Combine Before Rounding Down Method
(Method A) during the 1972, 1982, and 1992 reapportionments, it was generally understood
during the hearing process that LATFOR would use the same methodology in 2002. Based upon
the reasonable assumption that LATFOR would perform the Senate size calculation in 2002 the
same way the calculation had been performed in 1972, 1982, and 1992, it was generally
11
understood that the size of the Senate in 2002 would be 61 seats (the same as it had been in 1982
and 1992) because that is the number that would have resulted from applying the decades of
settled practice prior to 2002. Indeed, LATFOR’s website expressly stated throughout 2001 and
early 2002 that the size of the Senate would remain 61 districts. Accordingly, during the
LATFOR hearing process throughout 2001 and early 2002, the public presented LATFOR with
proposed 61-seat Senate redistricting plans.
27.
In February 2002, however, LATFOR announced unexpectedly that the size of
the Senate would be increased to 62 seats. LATFOR made this announcement first by releasing
an unexpected 62-seat plan, and then by posting on its website, several weeks later, a March 7,
2002 memorandum written by the attorney for the Senate Republicans, Michael A. Carvin (the
“2002 Carvin Memorandum,” attached hereto as Exhibit 1). The 2002 Carvin Memorandum
explained that the size of the Senate would be increased to 62 seats based upon two changes that
departed from decades of precedent for performing the calculation required by Section 4.
28.
First, the 2002 Carvin Memorandum explained that the Bronx would not be
counted as it had been in 1972, 1982, and 1992. The Bronx presents a unique complication
because, whereas Nassau County is wholly contained within the area that in 1894 was Queens
County, Bronx County occupies an area that in 1894 was partially in New York County and
partially in Westchester County. The Bronx therefore presents an issue that the Queens/Nassau
and Richmond/Suffolk areas do not: how to determine the number of “full ratios” for the areas
that in 1894 constituted New York and Westchester Counties when their 1894 boundary – the
Bronx River – is right in the middle of present-day Bronx County?
29.
In 1972, 1982, and 1992, the Legislature resolved this issue by (i) adding together
the populations of present-day New York, Bronx, and Westchester Counties and (ii) comparing
the number of “full ratios” in that combined tri-county region to the number of Senate districts
12
that collectively were assigned to New York and Westchester Counties in 1894. This
methodology compared present-day apples to 1894 apples because the territory that contains
New York, Bronx, and Westchester Counties today is the same territory that contained New
York and Westchester Counties in 1894. LATFOR abandoned this methodology in 2002 in
favor of separately identifying the populations of those portions of present-day Bronx County
that are west and east of the Bronx River. Instead of combining all of the Bronx with New York
and Westchester Counties as had been done in the past, the Bronx would be divided along the
Bronx River, which was the border between New York and Westchester Counties in 1894. For
the first time, the part of the Bronx west of the Bronx River would be combined with New York
County, and the part of the Bronx east of the Bronx River would be combined with Westchester
County for purposes of determining the size of the Senate.1
30.
The second change that LATFOR made in 2002 was to abandon the Combine
Before Rounding Down Method (Method A), and to use, for the first time in over three decades,
the Round Down Before Combining Method (Method B). The 2002 Carvin Memorandum did
not discuss whether to use Method A or Method B with respect to Richmond/Suffolk, because
both methods yielded the same results for that area given the 2000 Census data. But the 2002
Carvin Memorandum expressly concluded that Method B should be used in Queens-Nassau. In
so concluding, the 2002 Carvin Memorandum asserted that Method B “is more faithful to the
Constitution” than Method A. The 2002 Carvin Memorandum made this assertion even though
1
Standing alone, the population of Westchester County according to the 2000 Census
was just under three full “ratios” (i.e., just under 6% of the total State population), meaning that
Westchester itself would not have been relevant to the Senate size calculation. But combining
Westchester with the area of the Bronx east of the Bronx River pushed that combined area over
the 6% threshold for the first time. As the 2002 Carvin Memorandum asserted, this resulted in a
net increase in the size of the Senate of two seats. Had this been the only change from
methodologies employed in 1972, 1983, and 1992, then the size of the Senate would have been
increased to 63 seats in 2002.
13
the Court of Appeals found the reverse in Schneider: that Method A “more accurately reflects
increases in the population of the territory of the original county – the very basis for which
adjustments to the whole number of senators is made” – than Method B. 31 N.Y.2d at 432-33.
31.
Whereas using Method A in connection with the Queens/Nassau combination
would have yielded 63 Senate seats in 2002, using Method B yielded 62 Senate seats in 2002.
This is so because Queens had 5.87 “ratios” in 2002, and Nassau had 3.52. Because the
remainders of .87 and .52 added up to more than one, using Method B instead of Method A –
thereby eliminating these remainders before combining them – yielded one less seat.
32.
Notably, LAFTOR published its 62-seat Senate plan on or about February 14,
2002 – several weeks before the 2002 Carvin Memorandum was published. In other words,
LATFOR did not inform the public of the supposed constitutional rationale for increasing the
size of the Senate until months after the first round of public hearings had concluded. For this
reason, the public was deprived of any meaningful opportunity to propose alternative 62-seat
Senate plans before LATFOR decided which 62-seat plan to recommend. LATFOR made its
final recommendation to the Legislature on April 8, only one month after revealing the supposed
rationale for creating 62 districts.
33.
Although the 2002 Carvin Memorandum purported to apply a neutral legal
analysis, it is now clear that LATFOR’s decision to increase the size of the Senate from 61 seats
to 62, but not to 63, was politically motivated. LATFOR’s political motivation in jettisoning
decades of precedent with respect to how to calculate the size of the Senate was revealed in a
series of 2001 memoranda authored by Mark Burgeson, the assistant to Senator Dean G. Skelos
(who currently is the Majority Leader of the Senate, and who in 2001 was the Republican CoChair of LATFOR) and the chief architect of the 2002 plan.
14
34.
LATFOR strongly resisted making the Burgeson memoranda public, asserting
that they were protected by “legislative privilege.” A federal court disagreed, ordering the
Senate Majority to release the previously secret Burgeson memoranda to the plaintiffs in
Rodriguez v. Pataki, 280 F. Supp. 2d 89 (S.D.N.Y. 2003).
35.
An internal LATFOR memorandum dated May 4, 2001 entitled
“Reapportionment Areas” (the “May 4, 2001 Memorandum,” attached hereto as Exhibit 2)
confirms that by that date, the Senate Republicans already had decided that they likely would
create 62 districts. The plan’s chief architect, Mr. Burgeson, expressly noted in this
memorandum that the Republicans had “wiggle room” to create either a 61-seat or a 62-seat plan
without running afoul of the one person, one vote rule.
36.
A second internal memorandum dated July 20, 2001 entitled “Size of the Senate”
(the “July 20, 2001 Memorandum,” attached hereto as Exhibit 3) confirms that the decision to
create 62 districts had been settled by that date, notwithstanding that there had been many
internal discussions among the Senate Republicans about the possibility of creating 63 districts.
The July 20, 2001 Memorandum expressly states (a) that the Republicans “have had numerous
discussions regarding the possibility of the Senate increasing in size to 63”; (b) that the “ultimate
decision” would be “made with political numbers for proposed districts at each size in hand”;
(c) that a 63rd seat could not be placed anywhere in the Republican-dominated upstate region
because the 62-seat plan that already had been drawn had purposely drawn those Republican
districts “light” (emphasis in original)—i.e. they were purposefully underpopulated—in order “to
avoid migration [of a district] downstate,” and that adding a 63rd seat “would exacerbate that
situation”—i.e., make it impossible to avoid giving the 63rd seat to the downstate region without
producing a total population deviation in excess of 10% (emphasis in original); and (d) that the
15
chief architect’s view was that “the only reason to go to 63” districts would be to use the extra
district to “combin[e] politically undesirable areas” in Long Island.
37.
A third internal memorandum dated December 18, 2001, entitled “The 135” (the
“December 18, 2001 Memorandum,” attached hereto as Exhibit 4) is also significant. It
confirms that by that date, there no longer was any discussion or consideration of a Senate size
other than 62 seats, even though LATFOR’s website still indicated to the public as of that date
that there would be 61 districts, and LATFOR was still encouraging the public to propose 61-seat
plans. This memorandum also demonstrates that LATFOR was purposefully manipulating
various state law apportionment rules in order to underpopulate the upstate districts and
overpopulate the downstate districts as much as possible without exceeding the 10% total
population deviation limit that Mr. Burgeson believed the one person, one vote principle
imposed.
38.
Thus, after secretly deciding in or about the summer of 2001 that it would create
62 Senate districts, LATFOR nonetheless continued to encourage and accept proposals from the
public for 61-district plans, knowingly misleading the public, just as it did again in 2011 and
2012. Indeed, on February 13, 2002 – the day before LAFTOR announced the 62-seat plan that
eventually would become law – LATFOR’s website still said that there would be 61 districts in
the 2002 plan.
E.
The Legislatures Decision to Use Both Methods Simultaneously in 2012
39.
Notwithstanding that the 2002 Carvin Memorandum plainly resulted from
partisan political calculations rather than neutral and evenhanded legal analysis, and
notwithstanding that the methodology it recommended was a radical departure from the
methodology consistently used by the Legislature in 1972, 1982, and 1992, there is no question
that LATFOR firmly concluded, by expressly adopting the reasoning in the 2002 Carvin
16
Memorandum, that the Round Down Before Combining Method (Method B) is “more faithful to
the Constitution” than the Combine Before Rounding Down Method (Method A). But LATFOR
has now concocted an even more novel and totally irrational way to interpret Section 4. It
recently announced that it has determined that the Senate size will increase from 62 seats to 63
by using both counting methodologies – Method A and Method B – simultaneously.
40.
Given the population figures revealed in the 2010 Census, there are two places
where the choice of methodology affects the size of the Senate: Nassau/Queens (which must be
combined to compare those counties to 1894 because Nassau did not exist at the time) and
Suffolk/Richmond (which must be combined because those counties were combined in a single
Senate district in 1894). Using the Round Down Before Combining Method (Method B) – to
which LATFOR switched in 2002 because it supposedly “is more faithful to the Constitution” –
would yield 62 districts this year, the same number as in 2002. But in a memorandum that
LATFOR published on its website on January 6, 2012 (the “2012 Carvin Memorandum,”
attached hereto as Exhibit 5), the Senate Majority’s attorney – the same attorney who authored
the 2002 memorandum – instructed LATFOR to use the Round Down Before Combining
Method (Method B) with respect to the Nassau/Queens combination, but to use the Combine
Before Rounding Down Method (Method A) with respect to the Suffolk/Richmond combination.
41.
LATFOR has expressly adopted both the conclusion and the rationale in the 2012
Carvin Memorandum. It posted the 2012 Carvin Memorandum on its website with the following
explanation:
The State Constitution requires 150 Assembly districts and contains a formula for
the determination of the number of Senate districts. Based on the formula and
analysis of the 2010 census data, the size of the Senate will increase by 1 seat to
63 (Click here to view technical determination of the size of the Senate).
By clicking on the hyperlinked words “click here,” a LATFOR website visitor is directed to the
2012 Carvin Memorandum, with the 2002 Carvin Memorandum attached.
17
42.
LATFOR therefore calculated the size of the new 2012 Senate by using two
different methodologies – including the very methodology that LATFOR expressly rejected in
2002 – within the same reapportionment plan. Using this unprecedented and illogical mix-andmatch formula, LATFOR determined that the Senate would be increased to 63 seats.
43.
Undoubtedly aware that a cherry-picking approach would invite scrutiny, the
2012 Carvin Memorandum attempts to mask its internal methodological inconsistency. In the
table entitled “2010 Senate Size Calculation” that is appended to it, the 2012 Carvin
Memorandum lists only the combined population, and the number of “full ratios” computed from
the combined population, of Richmond and Suffolk Counties, rather than listing the individual
populations and the individual number of “full ratios” of those two counties separately (as the
2012 Carvin Memorandum does for every other county that is sufficiently populous to affect the
Senate size). By definition, to list only the combined populations of Richmond and Suffolk is to
use the Combine Before Rounding Down Method (Method A). After all, one cannot round down
the individual “ratios” for those two counties before combining them without first using their
individual populations to calculate their respective “ratios.” The table entitled “2010 Senate Size
Calculation” in the 2012 Carvin Memorandum purposefully lists only the combined population
of Richmond and Suffolk because LATFOR understands that its decision to use both Method A
and Method B to arrive at a Senate size of 63 districts is irrational, arbitrary, purposefully
discriminatory, and therefore unconstitutional.
F.
The Decision to Use Both Methods Simultaneously Was Political, Not the
Result of any Effort by the Legislature to Apply the Constitution
Consistently or Evenhandedly
44.
The asserted justifications for treating the Richmond/Suffolk combination
differently from Queens/Nassau combination offered in the 2012 Carvin Memorandum are just
pretexts designed to mask the Legislature’s actual motivation in increasing the size of the Senate
18
to 63 seats: the desire to engage in severe partisan gerrymandering in an effort to enable the
Republican Majority to preserve its razor-thin and demography-defying control over the Senate.
Given New York’s political demographics, the Senate Republicans cannot preserve their
majority without purposefully manipulating population deviations to their advantage. Their goal
is to maximize the number of Republican districts by underpopulating Republican-dominated
districts and overpopulating Democrat-dominated districts to the greatest extent possible.
45.
Not surprisingly, the 63-seat Senate plan enacted by Chapter 16 is severely
malapportioned. Twenty-five of the 26 upstate districts in the plan are significantly
underpopulated, and all of the New York City districts in the plan are significantly
overpopulated. The contiguous cluster of 26 underpopulated upstate districts (SDs 38-63) –
comprising northern Westchester, Rockland, and all of the 53 counties to the north – has a total
population of 7,635,808. With a statewide average district population of 307,356, those 26
upstate districts have enough population for 24.84 districts of the average population. In other
words, the upstate region gets 1-and-1/7th district more than its share of the state population
entitles it to. And the contiguous cluster of 26 districts wholly or partly within New York City
(SDs 10-34 and 36) has enough population for 26.93 districts of the average population. In other
words, New York City gets almost one full district less than its share of the state population
entitles it to. (The two districts wholly in lower Westchester that adjoin New York City, SD’s 35
and 37, are each 107 persons above the mean, and therefore would not affect the apportionment
arithmetic if considered to be part of either the upstate or New York City cluster.)
46.
The total deviation (the range between the two extreme districts) in the Senate
plan enacted by Chapter 16 is 8.80%, which is marginally smaller than the total deviation in the
2002 Senate plan (9.78%). But more significant measures are provided by the standard deviation
and average deviation, which take account of all of the districts in a plan, not just the two
19
extreme cases. By these measures, the Chapter 16 Senate plan is far worse than the 2002 Senate
plan. The 2002 plan had a standard deviation from the mean of 2.72%, and an average deviation
of 2.22%. Chapter 16’s Senate plan has a standard deviation of 3.85%, and an average deviation
of 3.67%. It has 23 districts with a population more than 4% below the ideal, and 26 districts
with a population more than 3% above the ideal. In words, there is a much bigger difference on
the whole between the underpopulated districts and the overpopulated districts than there was
2002. The Chapter 16 Senate plan also divides far more counties than is necessary.
47.
The Republicans had no choice. The Senate plan that they drew in 2002 stretched
their “wiggle room” to the limit because that plan contained a total population deviation of
9.78%, very close to the 10% outer limit. Because the upstate region lost population relative to
the New York City region during the last decade, and because the new prisoner allocation statute
requires LATFOR to remove from various upstate districts thousands of prisoners who used to
be counted there, the Senate Republicans understood that they simply could not perpetuate their
gerrymander without adding a 63rd Senate seat. The 62-seat plan that was drawn in 2002 is now
so dramatically malapportioned, based on the 2010 Census data, that a 62-seat plan could not be
brought into compliance with the one person, one vote rule without shifting a district from the
upstate region to the NewYork City region – precisely the result that the Republicans clearly are
trying to avoid for political purposes.
G.
The Legislature’s Use of Method A in Richmond/Suffolk and Method B in
Queens/Nassau Is Irrational
48.
There is no rational basis for using Method A in Richmond/Suffolk and Method B
in Queens/Nassau. In 2002, the Legislature concluded, after ostensibly considering the issue
carefully, that Method B is, as Mr. Carvin put it, “more faithful to the Constitution.” Given that
conclusion, the Legislature may not use Method A in Richmond/Suffolk, and it certainly may not
do so when it is using Method B in Queens/Nassau in the same redistricting.
20
49.
Of course, there are certain differences between Richmond/Suffolk and
Queens/Nassau: Richmond and Suffolk are not contiguous, Richmond and Suffolk shared a
single Senate district in 1894, but were separate counties, etc. But none of these differences
provides a remotely rational basis for applying Method A in Richmond/Suffolk and Method B in
Queens/Nassau
H.
By Withholding that It Had Decided to Increase the Size of the Senate to 63
Seats, LATFOR Knowingly Thwarted the Ability of the Public to Participate
Meaningfully In the Redistricting Process
50.
LATFOR manipulated the public hearing process in order to deprive New
Yorkers of any meaningful opportunity to participate in the reapportionment of the Senate.
51.
The 2010 block-level Census data for New York were released in March 2011.
Once it received the Census data, LATFOR had all the information it needed to decide whether
Section 4 required the size of the Senate to be increased from 62 seats to 63.
52.
LATFOR holds a series of hearings both before and after it releases its proposed
reapportionment plan. The purpose of the pre-plan hearings is to solicit input from the public
regarding what the plan should look like, and the purpose of the post-plan hearings is to solicit
input from the public regarding the extent to which LATFOR’s proposed plan should be
reconsidered.
53.
LATFOR held a number of pre-plan public hearings between July 2011 and
November 2011. The ostensible purpose of these hearings was to afford the public a meaningful
opportunity to express views on what the Senate plan should look like.
54.
LATFOR failed to inform the public prior to these pre-plan hearings that it had
decided to adopt a 63-seat Senate plan in 2012. LATFOR did not announce this decision until
January 6, 2012, by which time all of the public hearings already had taken place, and several
62-district proposals had been submitted by the public.
21
55.
During the pre-plan hearings, many members of the public understandably
focused their comments and suggestions on 62-seat redistricting alternatives. When asked
during the hearings whether LATFOR might be considering increasing the size of the Senate,
Senator Nozzolio repeatedly responded by stating that LATFOR would not consider that issue
until the public had weighed in on the number of Senators the public wanted.
56.
At the July 19, 2011 public hearing in Syracuse, Senator Nozzolio expressed his
belief that LATFOR should postpone determining and announcing the number of Senate districts
that would be created and “should be asking the public for their view as opposed to determining
any kind of dictation of a number” and find out “what the public wants in terms of a number of
representatives.”
57.
At the July 20, 2011 hearing in Rochester, anticipating that Petitioner Senator
Dilan would repeat his earlier request that LATFOR settle the Senate size issue so that persons
recommending redistricting plans to LATFOR would know how many districts to create, Senator
Nozzolio said:
[T]he New York State Senate is currently at a number of 62 members, and . . .
Senator Dilan [is] raising a very thought-provoking question as to what will the
number of the Senate be? The Constitution and the laws of the state provide for
the ability for that number to grow or shrink depending on particular policy
questions, and Senator Dilan has raised that question now twice. I think that it’s
important to put out that we certainly would welcome, and I frankly don't believe
any decision should be made, Senator, until at such time as the public has an
opportunity to review that process and provide us with input. Let the public tell
us whether the State Senate, which is now at 62 should be changed to another
number.
Senator Nozzolio made these public statements even though he knew or should have known that
Section 4 does not allow the size of the Senate to be increased, or not, partially or wholly based
upon public opinion. Senator Nozzolio made these public statements even though he knew that
the decision had already been made to increase the size of the Senate to 63 seats for partisan
reasons.
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