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Petition Cohen v Cuomo

Petition Cohen v Cuomo

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Published by Nick Reisman

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Published by: Nick Reisman on Mar 15, 2012
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04/26/2012

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 1SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK  ___________________________________________xDANIEL MARKS COHEN; RAQUEL BATISTA; Index No. 12-102185PURVA 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,
PETITION
Petitioners,-against-
 
GOVERNOR ANDREW M. CUOMO; LIEUTENANTGOVERNOR AND PRESIDENT OF THE SENATEROBERT J. DUFFY; SENATE MAJORITYLEADER AND PRESIDENT PRO TEMPORE OFTHE SENATE DEAN G. SKELOS; SPEAKER OFTHE ASSEMBLY SHELDON SILVER; and THE NEW YORK STATE BOARD OF ELECTIONS,Respondents. ___________________________________________xPetitioners Daniel Marks Cohen, Raquel Batista, Purva Bedi, Todd Brietbart,Raymond W. Engel, Jacqueline G. Forrestal, Patrick L. Furlong, Andrew Kulyk, Jerry C. Lee,Irene Van Slyke, and Senator Martin Malavé Dilan, by and through their attorneys, Cuti Hecker Wang LLP, for their Complaint hereby allege as follows:
NATURE OF THE PETITION
1.
 
This petition pursuant to Unconsolidated Laws § 4221 seeks a declaration andinjunction 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 isunconstitutional because Article III, section 4 of the New York Constitution (“Section 4”)
 
 2forbids the Legislature from increasing the size of the Senate to 63 seats in 2012. In purportedlydoing so, the Legislature failed to apply the Senate size formula prescribed in Section 4consistently, rationally, or in good faith.2.
 
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 subsequentyears 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 judgmentobjective and to remove it from the unconstrained hands of political actors.3.
 
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 (countieshaving 6% or more of the State’s total population) with (ii) the populations of such counties in1894. The first step is to divide the current State population by 50 (the number of Senatedistricts in 1894). This quotient is called the “ratio” for that year. Next, one determines thenumber of “full ratios” for each county above the 6% threshold by dividing each such county’scurrent 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 compared with thenumber 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, thenthe size of the Senate is increased by the difference between those two numbers.4.
 
The issue in this case arises during the process of combining counties whenattempting to compare a county’s “full ratios” with the number of seats apportioned to the samecounty in 1894. Combining certain pairs of counties is inevitable when performing the
 
 3constitutionally prescribed mathematical formula because certain present-day counties did notexist 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 toQueens/Nassau as Section 4 requires, one must combine present-day Queens and Nassau andtreat them as a unit, and one must compare that combined present-day unit to Queens as itexisted in 1894.5.
 
There are two ways in which the total current number of “full ratios” for Nassauand Queens collectively might be calculated, the key difference being when in the process onerounds 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 roundthe combined number of “ratios” down to the nearest-lower whole number (the “Combine BeforeRounding Down Method” or “Method A”); or (b) one could first identify the individual number of “full ratios” for each county by dividing the individual populations of each by the “ratio”number, round the number of “ratios” in each individual county down to the nearest-lower wholenumber, and then add together the two rounded-down counts of “full ratios” (the “Round DownBefore Combining Method” or “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  population of 19,378,102 divided by 50). If one uses Method A, then the populations of Queensand 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 oneuses Method B, the Round Down Before Combining Method, then each county’s population is

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