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Published by: jspector on May 03, 2012
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=================================================================This opinion is uncorrected and subject to revision beforepublication in the New York Reports.-----------------------------------------------------------------No. 135Daniel Marks Cohen, et al.,Appellants,v.Governor Andrew M. Cuomo, et al.,Respondents.Eric J. Hecker, for appellants.Michael A. Carvin, for respondent Skelos.Elaine Reich, for respondent Silver.New Roosevelt Foundation, Inc.; Common Cause New York,amici curiae.PER CURIAM:Petitioners commenced this special proceeding seeking adeclaration that Chapter 16 of the Laws of 2012, insofar as itexpands the size of the New York State Senate from 62 to 63districts, is unconstitutional. Specifically, they argue thatthe Legislature’s failure to apply a consistent method of- 1 -
- 2 -No. 135calculating the number of Senate seats due to population growththroughout the State is arbitrary and violates article III, § 4of the New York State Constitution. We find that petitionershave failed to satisfy their heavy burden of establishing theunconstitutionality of this legislation and we therefore affirm.This dispute arises out of the process of adjustingrepresentation in the State Senate whereby the Legislature usesthe historical, constitutionally prescribed “ratio” process todetermine the required number of Senate seats. The Constitutionof 1894 established a minimum of 50 State Senate districts andset forth a method of determining whether the number of seats isto be increased based on population shifts or increases asindicated by the census (see NY Const, art III, § 4). Theinitial step in this process is to divide the population of theState’s citizens by 50, resulting in the applicable “ratio”figure (see NY Const, art III, § 4).
Any county that has atleast three “full ratios,” or six percent of the state’spopulation, is then allocated a Senate seat for each full ratio(see NY Const, art III, § 4). If the number of seats so assigned
"The ratio for appointing senators shall always beobtained by dividing the number of inhabitants . . . by fifty,and the senate shall always be composed of fifty members, exceptthat if any county having three or more senators at the time ofany apportionment shall be entitled on such ratio to anadditional senator or senators, such additional senator orsenators shall be given to such county in addition to the fiftysenators, and the whole number of senators shall be increased tothat extent" (NY Const, art III, § 4).- 2 -
- 3 -No. 135is greater than the number of seats assigned to that county inthe Constitution of 1894, the increase is added to the original50 Senate seats so that the “whole number of senators” isincreased accordingly (see Matter of Schneider v Rockefeller, 31NY2d 420, 431-432 [1972]).
Difficulties are presented in determining the properratio for counties that were divided after 1894 (resulting in thecreation of counties that did not then exist) and for countiesthat were combined in 1894 within a single Senate district.Article III, § 4 does not provide any specific guidance on how toaddress these situations. The Legislature has, in the past,employed two different methods. The populations of the countiesat issue can be combined and then divided by the ratio figure toget a number that is then rounded down to the nearest full ratio(“combining before rounding down”). That figure is then comparedto the number of Senate seats that were allotted to that districtin 1894 for purposes of determining any increase. Another way isto divide the population of each county by the ratio figure,round the resulting number for each county down to the nearest
As we have previously observed, this method is solely forthe purpose of determining the size of the State Senate (seeSchneider, 31 NY2d at 431 n 5). When the constitutionalprovision was enacted in 1894, it was also used to allocateSenate seats to counties, but since the advent of the "oneperson, one vote" rule (Reynolds v Sims, 377 US 533 [1964]),seats cannot be allocated on a county-by-county basis. Thus, thedrawing of districts and apportioning of Senate seats is aprocess completely separate from determining the number of seats(see e.g. WMCA, Inc. v Lomenzo, 377 US 633 [1964]).- 3 -

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