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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK
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DANIEL MARKS COHEN, RAQUEL BATISTA, PURV A BEDI, TODD BREITBART, RAYMOND W. ENGEL, JACQUELINE G. FORRESTAL, PATRICK L. FURLONG, ANDREW KUL YK JERRY C. LEE, IRENE V AN SLYKE, and SENATOR MARTIN MALA VB DILAN, PlaintiffslPetitioners, -againstTHE NEW YORK STATE LEGISLATIVE TASK FORCE ON DEMOGRAPHIC RESEARCH AND REAPPORTIONMENT; SENATOR MICHAEL F. NOZZOLIO; and ASSEMBLYMAN JOHN J. McENENY, DefendantslRespondents.
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Index No. ------

COMPLAINTIPETITION

PlaintiffslPetitioners

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 Malave Dilan, by and through their attorneys, Cuti Hecker Wang LLP, for their Complaint and Petition hereby allege as follows:

NATURE OF THE ACTION
1. This action seeks a declaratory judgment pursuant to CPLR § 3001 (or, in the

alternative, an order pursuant to CPLR Article 78) establishing that Article III, section 4 of the New York Constitution ("Section 4") forbids New York from increasing the size of its Senate (the "Senate") to 63 seats in 2012. The New York State Legislative Task Force on Demographic Research and Reapportionment ("LATFOR") recently announced that in light of the 2010 1

Census, the size of the Senate will increase from 62 seats to 63. This increase is unconstitutional because LATFOR failed to apply the Senate size formula prescribed in Section 4 consistently, 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 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. 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 (counties having 6% or more of the State's total population) with (ii) the populations of such counties in 1894. 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 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. 4. The issue in this case arises during the process of combining counties when

attempting to compare a county's "full ratios" with the number of seats apportioned to the same county in 1894. Combining certain pairs of counties is inevitable when applying the 2

constitutionally prescribed mathematical formula 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. 5. 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 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 whole number, and then add together the two rounded-down counts of "full ratios" (the "Round Down Before 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 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 of9.21 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 3

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. 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, LATFOR 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. 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 the Round Down Before Combining Method (Method B) "is more faithful to the Constitution." No court ever addressed the legality ofLATFOR'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 more than 30 years - to Method B in 2002. 8. Moreover, internal documents that LATFOR was subsequently compelled to

produce in litigation revealed that LATFOR switched from Method A to Method Bin 2002 for purely partisan purposes: 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

4

confirm that the decision to switch methodologies in 2002 was made without any consideration of the proper interpretation or application of Section 4. 9. But even though LATFOR's change in counting methodologies in 2002 was a

thinly-veiled political ploy, at least LATFOR had seemingly committed, once and for all, based on ostensibly 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." 1O. Or so the public was led to believe.

Yet LATFOR has now announced another sudden departure from its previous

practice, inventing an even more novel and bizarre 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: QueenslNassau (which must be combined to compare those counties to 1894 because Nassau did not exist at the time) and Richmond/Suffolk (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 is "more faithful to the Constitution" - would yield 62 districts this year, the same number as in 2002. 11. LATFOR apparently does not like that number. In a memorandum that it the

published on its website on January 6, 2012, the Republican Majority's outside counsel-

same attorney who authored the 2002 memorandum - instructed it 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. In other words, LATFOR calculated the size of the new 2012

Senate by applying two different methodologies to combining counties - including the very 5

methodology that they 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 them to further their partisan attempt to maintain their razor-thin control of the Senate. 12. This is blatantly unconstitutional. Even assuming LATFOR has a modicum of

discretion to determine which counting methodology is more faithful to the Constitution, Section 4 requires that its decision be exercised in a manner that is rational, evenhanded, and consistent. LATFOR has no discretion to manipulate the Constitution by changing its counting methodology after every Census to suit its ephemeral partisan purposes, let alone to use two different counting methodologies within the same reapportionment. 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. 13. LATFOR's methodological inconsistency, exacerbated by its transparently

partisan manipulation of Section 4, renders unconstitutional its planned addition of a 63rd district. But this case is all the more disturbing given the manner in which LATFOR deprived the public of its entitlement to a meaningful opportunity to participate in the process. The 2010 Census data was 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. 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. Indeed, LATFOR did not announce this decision until January 6, 2012, by which
6

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. During these pre-announcement hearings, members of the public understandably focused their

comments and suggestions on 62-seat redistricting alternatives. Indeed, when asked during the hearings whether LA TFO R 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). 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 opportunity to participate in the redistricting process. 14. 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 LATFOR previously concluded "is most faithful to the Constitution") yields 62 seats. Consistently using the methodology that the Legislature used in 1972, 1982, and 1992 likewise yields 62 seats. LATFOR's novel, irrational, legally unprincipled, politically motivated, and gerry-rigged "method" is the only way to yield 63 seats. That method, and therefore that result, is constitutionally indefensible. 15. This disputed issue of constitutional law is ripe for judicial review. Indeed, it

must be decided extraordinarily quickly. After releasing its proposed 63-district Senate plan last Thursday, LATFOR held its first post-plan public hearing yesterday in Albany. It has scheduled eight additional hearings elsewhere in the State between now and February 16. In light ofthe political calendar, and because LATFOR dragged its feet by waiting for nearly a year after the 7

Census data was released to propose a plan, the deadline for finalizing and enacting a lawful reapportionment plan is rapidly approaching. Because LATFOR is about to spend weeks holding hearings on its 63-seat plan, and given the Legislature's session calendar, it appears that the earliest a plan could be passed and sent to the Governor would be late February. That would be far too late to begin litigating this critical threshold constitutional issue. And if the Governor were to veto the plan - which is more than plausible given his repeated public vows not to sign a partisan redistricting bill - then the reapportionment impasse would have to be resolved by a special master, perhaps in federal court. Without a ruling from the State courts, the special master would have no guidance at all on how to resolve this critical threshold state constitutional Issue. 16. For these reasons and those that follow, Plaintiffs respectfully ask this Court to

declare that increasing the size of the Senate to 63 seats would violate Section 4. JURISDICTION 17. AND VENUE

This Court has jurisdiction pursuant to CPLR § 301 et seq., CPLR 3001, CPLR

§ 7804, Article III, section 5 of the Constitution, and New York Unconsolidated Laws § 4221. 18. Venue is proper in this County pursuant to CPLR §§ 503(a), CPLR 505(a),

Article III, section 5 of the Constitution, and New York Unconsolidated Laws § 4221. PARTIES 19. Plaintiff Daniel Marks Cohen is a citizen and resident of New York County,

residing at 467 Central Park West, Apartment 2D, New York, New York 10025.

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20.

Plaintiff Raquel Batista is a citizen and resident of Bronx County, New York. Her

address is 2104 Clinton Avenue, #2A, Bronx, New York 10457. 21. PlaintiffPurva Bedi is a citizen and resident of New York County. Her address is

220 Manhattan Avenue, Apartment 4S, New York, New York 10025. 22. Plaintiff Todd Breitbart is a citizen and resident of New York County, residing at

205 West End Avenue, New York, New York, 10023. 23. Plaintiff Raymond W. Engel is a citizen and resident of Albany County, residing

at 40 North Grandview Terrace, Voorheesville, NY 12186. 24. Plaintiff Jacqueline G. Forrestal is a citizen and resident of Queens County, New

York. Her address is 82-36 166th Street, Jamaica, N ew York 11432. 25. Plaintiff Patrick L. Furlong is a resident of Albany County. His address is 225

Walnut Lane, Slingerlands, New York 12159. 26. Plaintiff Andrew Kulyk is a citizen and resident of Erie County. He resides at 200

Delaware Avenue, Unit 1502, Buffalo, New York 14202. 27. Plaintiff Jerry C. Lee is a citizen and resident of Nassau County. His address is

2182 Baylis Avenue, Elmont, New York 11003. 28. PlaintiffIrene Van Slyke is a United States citizen and a resident of Kings

County. She resides at 206 Bergen Street, Brooklyn, New York 11217. 29. Plaintiff Senator Martin Malave Dilan is a member of the New York Senate, He

representing the 17th District, which is comprised of several North Brooklyn communities.

serves as the Senate Minority Conference's appointee to LATFOR. Senator Dilan has offices in Albany and at 786 Knickerbocker Avenue, Brooklyn, New York.

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30.

Defendant LATFOR was established by the Legislature in 1978 pursuant to N.Y.

Legislative Law § 83-m. Its principal responsibility is to prepare and formulate a plan that is recommended to the Legislature for each decennial reapportionment of New York's Congressional, Senate, and Assembly districts. LATFOR has all the powers of a legislative committee. It has six members: two (including one non-legislator) appointed by the President

pro tern ofthe Senate; two (including one non-legislator) appointed by the Speaker of the
Assembly; and one legislator each appointed by the Senate and Assembly Minority Leaders. LATFOR's principal place of business is located at 250 Broadway, Suite 2100, New York, New York. 31. Defendant Senator Michael F. Nozzolio is a Republican who represents the 54th As such, he is

District (Cayuga, Seneca, and Wayne counties). He is a co-chair ofLATFOR.

empowered to undertake any acts necessary or proper to carry out LATFOR's powers, purposes, and objectives. Senator Nozzolio has an office in Albany and a district office located at 119 Fall

Street, Seneca Falls, New York. Senator Nozzolio is sued herein in his official capacity. 32. Defendant Assemblymember John 1. McEneny is a Democrat who represents the

104th District (Albany). Together with Senator Nozzolio, he is LATFOR co-chair. As such, he is empowered to undertake any acts necessary or proper to carry out LATFOR's powers, purposes, and objectives. Assemblymember McEneny's office is located at the Legislative Office Building, Room 648, Albany, New York. Assemblymember McEneny is sued herein in his official capacity.

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FACTUAL ALLEGATIONS A.
33.

The Political Compromise Embodied in the Formula Prescribed in Article III, Section 4 of the Constitution
During the 1894 Constitutional Convention (the "Convention"), there was heated

debate about how future Senate reapportionments would impact the balance of power between the fast-growing metropolises of New York City and Brooklyn (which had not yet merged) and the less populous upstate counties. 34. There were two major factions: Democrats, whose political base was in the

downstate counties of New York and Kings; and Republicans, who generally represented more sparsely populated (and territorially much larger) upstate districts (some of which under the prior apportionment were comprised of as many as eight whole counties). 35. Several proposals were introduced during the Convention that would have limited

the number of Senate districts that would be apportioned to New York and Kings Counties. The concern animating these proposals was that the already large and rapidly growing downstate cities might soon obtain overwhelming political power relative to upstate New Yorkers. Delegates to the Convention from New York and Kings Counties asserted that the adoption of such proposals would unfairly dilute the legitimate influence of the residents of those populous counties. 36. In the end, the Delegates to the Convention agreed to a specific compromise. On

the one hand, Senate districts would be apportioned largely based upon population (subject to other non-population-based rules, such as that no county could have more than one third of the

total number of Senate districts). But on the other hand, if the largest counties continued to grow more rapidly than the smaller counties, and if this relative growth reached a prescribed

11

mathematical threshold, then the largest counties would receive additional Senate seats, but the size of the Senate would be increased by that number as well. 37. A simple hypothetical illustrates the mathematical principle animating this Suppose that County X contained 5 out of 50 Senate districts in 1894.

political compromise.

And suppose that County X grew so rapidly between 1894 and 1920, relative to the other counties that, based on population, it would be entitled to 10 out of 50 seats. The concept animating the political compromise embodied in Section 4 is that under such circumstances, County X would be allocated the 5 additional districts to which it was entitled based upon population, but the size of the Senate would be increased by 5 seats as well. Thus, instead of controlling 10 districts out of 50, County X would control 10 districts out of 55. In other words, County X would get 5 more seats, but it would not "take" these seats from the less populous counties. 38. The Delegates concluded that this specific political compromise, reflected in the

text of Section 4, struck the appropriate balance between (i) recognizing that more populous counties generally were entitled to more districts than less populous counties but (ii) recognizing the importance of ensuring that the fastest-growing counties did not become unduly politically dominant. 39. 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.

12

40.

The Court of Appeals has interpreted the language in Section 4 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. 41. First, the total citizen 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 socalled "ratio" figure for that year. 42. Counties having three or more "full ratios" - that is, more than 6% of the State's

total citizen 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. 43. Prior to 1962, there was no one person, one vote principle forbidding states from

apportioning legislative districts by county. 44. Section 4, at it was originally ratified in 1894, required that Senate districts be

apportioned in part based upon population but in part based upon non-population, county-based rules. 45. For example, the second paragraph of Section 4 provided that no county could

have more than one third of the total number of Senate districts (even if it had significantly more than one third of the total population of the State), and that no two adjoining counties (including counties separated only by public waters, such as New York and Kings) could collectively have more than one half of the total number of Senate districts (even if they collectively had significantly more than one half of the total population of the State). 13

46.

These non-population, county-based rules became unconstitutional when the one

person, one vote principle emerged during the 1960s and required states to apportion legislative districts based upon population. 47. The New York Court of Appeals recognized in Matter of Orans, 15 N.Y.2d 339

(1965), that strict application of the non-population, county-based apportionment rules in the first and second paragraphs of Section 4 would violate the one person, one vote principle. But the Court held that the third paragraph of Section 4 still prescribes the method for determining the total number of Senate districts, although it would no long affect the apportionment of those districts among the counties. 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

48.

contemplate the creation of counties that did not exist in 1894. 49. 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. 50. 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.

51.

There are two different ways in which one could calculate the total current the Combine Before

number of "full ratios" for a county combination such as QueenslNassau:

Rounding Down Method (first combining the current populations of the counties, then dividing

14

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). 52. Sometimes the choice of methodology affects the outcome (as it does in 2012).

The two methods yield different results when the fractional remainders of each individual county's "ratios" add up to more than one. To use the example illustrated in the introduction section, based on the 2010 Census results, this year Queens has 5.76 "ratios," and Nassau has 3.46 "ratios." The .76 and .46 fractional remainders, when combined, add up to more than one full "ratio." Thus, if one rounds them down before adding, the combined total is 8 "full ratios," but if one adds them together before rounding the sum down, the combined total is 9 "full ratios." 53. 54. Section 4 does not expressly provide which method should be used. 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. 55. 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

15

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) 56. 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. 57. Thus, in order to perform an apples-to-apples comparison of the number of "full

ratios" in the QueenslNassau 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) 58. 59. Richmond/Suffolk combination presents a different twist.

The Richmond/Suffolk

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. 60. 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. 61. 62. The identical problem arises in making the comparison for Suffolk County. 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

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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. 63. 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. 64. 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 QueenslNassau combination. As described above, these areas require combinations for somewhat different reasons. But there is nothing about these differences that justifies using Method A and Method B in different areas of the State within the same reapportionment. 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

65.

or Method B because sometimes the two methods yield the same results. 66. 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). 67. 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), so long as the Legislature "has made a good-faith effort to comply with the mandate of the equal population principle." 68. During the 1972, 1982, and 1992 reapportionments, the Legislature used the

Combine Before Rounding Down Method (Method A) when combining counties. (The Special

17

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.) 69. 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 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.

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. LATFOR held public redistricting hearings during the spring and summer of

70. 71.

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. 72. 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. 73. 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. Indeed, LATFOR's website expressly stated throughout 2001 and early 2002 that the size of the Senate would remain 61 districts. 18

74.

Accordingly, during the LATFOR hearing process throughout 2001 and early

2002, the public presented LATFOR with proposed 61-seat Senate redistricting plans. 75. In March 2002, however, LATFOR announced unexpectedly that the size of the

Senate would be increased to 62 seats. LATFOR made this announcement by posting on its website 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. 76. The 2002 Carvin Memorandum explained that the size of the Senate would be The 2002 Carvin Memorandum is

increased to 62 seats based upon two changes that departed from decades of precedent for performing the calculation required by Section 4. 77. 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 the area that in 1894 was partially in New York County and partially in Westchester County. 78. The Bronx therefore presents an issue that the QueenslNassau and areas do not: how to determine the number of "full ratios" for the areas that

Richmond/Suffolk

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? 79. 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 that collectively were assigned to New York and Westchester Counties in 1894. This 19

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. 80. 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. 81. 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. 82. 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 20

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, without significant analysis, that Method B "is more faithful to the Constitution" than Method A. 83. Whereas using Method A in connection with the QueenslNassau 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 Athereby eliminating these remainders - yielded one less seat. 84. 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. 85. 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. 86. 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. 87. 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

21

the chief architect of the 2002 plan. LATFOR was compelled to produce these previously secret memoranda in subsequent federal court litigation. 88. An internal LATFOR memorandum dated May 4, 2001 entitled

"Reapportionment Areas" (the "May 4,2001 Memorandum") confirms that by that date, the Senate Republicans already had decided that they likely would create 62 districts. The plan's chief architect 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. The May 4, 2001 Memorandum is attached hereto as Exhibit 2.

89.

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. 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 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 (emphasis in original); and (d) 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 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

22

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%. The July 20, 2001 Memorandum is attached hereto as Exhibit 3. 90. A third internal memorandum December 18,2001 entitled "The 135" (the

"December 18,2001 Memorandum") 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 the chief architect believed the one person, one vote principle imposed. The December 18,2001 Memorandum is attached hereto as Exhibit 4. 91. Thus, after secretly deciding in or about the summer of 200 1 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. 92. 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. 93. In sum, there is no question that LATFORfirst decided to create a 62-seat plan in

2002 for partisan political reasons, and only then instructed the Senate Majority's attorney to concoct a legal justification for doing so. 23

E.
94.

LATFOR's Recent Decision to Use Both Methods Simultaneously in 2012
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 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). 95. But LATFOR has now concocted an even more novel and bizarre 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. 96. Given the population figures revealed in the 2010 Census, there are two places

where the choice of methodology affects the size ofthe Senate: Nassau/Queens (which must be combined to compare those counties to 1894 because Nassau did not exist at the time) and SuffolklRichmond (which must be combined because those counties were combined in a single Senate district in 1894). 97. 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. 98. But in a memorandum that LATFOR published on its website on January 6, 2012 the Senate Majority's attorney - the same attorney who

(the "2012 Carvin Memorandum"),

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 24

Combine Before Rounding Down Method (Method A) with respect to the Suffolk/Richmond combination. 99. The 2012 Carvin Memorandum is attached hereto as Exhibit 5. LATFOR has expressly adopted both the conclusion and the rationale in the 2012 It posted the 2012 Carvin Memorandum on its website with the following

Carvin Memorandum. 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. 100. 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. 101. Using this unprecedented and illogical mix-and-match formula, LATFOR

determined that the Senate would be increased to 63 seats. 102. inconsistency. The 2012 Carvin Memorandum attempts to mask its internal methodological 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).

25

103.

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." 104. 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 LATFOR to Apply the Constitution Consistently or Evenhandedly The 2012 Carvin Memorandum expressly states that "the proper methodology"

105.

for combining Richmond and Suffolk for purposes of performing the Senate size calculation is to use the Combine Before Rounding Down Method (Method A). 106. The 2012 Carvin Memorandum offers two ostensible justifications for this

conclusion: (i) that Method A supposedly was used for Richmond/Suffolk "in every [previous] redistricting"; and (ii) that Method A supposedly "reflects the Senate arrangements as they existed in 1894." Both of these ostensible justifications are pretexts, and they betray that LATFOR has not made a good-faith effort to apply Section 4 evenhandedly or consistently. 107. First, although it may be true that the Combine Before Rounding Down Method

(Method A) was used for the Richmond/Suffolk in 1972, 1982, and 1992, the Legislature also used Method A during those years for QueenslNassau, which the 2012 Carvin Memorandum rejected as precedent for the current treatment of QueenslNassau. 26 In 2002, LATFOR expressly

rejected Method A, concluding that the Round Down Before Combining Method (Method B) "is more faithful to the Constitution." 108. To be sure, the 2002 Carvin Memorandum did not expressly discuss whether to

use Method A or Method B with respect to the Richmond/Suffolk combination. But that is because in 2002, Method A and Method B would have yielded the same number of "full ratios" for the Richmond/Suffolk combination. The 2012 Carvin Memorandum offers no logical reason why Method B "is more faithful to the Constitution" with respect to the QueenslNassau combination but not with respect to the Richmond/Suffolk combination, and no such reason exists. 109. It is not true that using Method A for the Richmond/Suffolk combination, but not

for the QueenslNassau combination, "reflects the Senate arrangements as they existed in 1894" with respect to Richmond/Suffolk but not QueenslNassau. To be sure, the 1894 Constitution

expressly provides that Richmond and Suffolk Counties initially would share a single Senate district. But that historical fact does not in any way justify treating the Richmond/Suffolk combination differently from the QueenslNassau combination. After all, using Method A for the QueenslNassau combination, which also constituted a single unit in 1894 - i.e., calculating the total population of the area that was Queens in 1894 before rounding down the current "ratios" for that area - similarly "reflects the Senate arrangements as they existed in 1894," but LATFOR has expressly rejected using Method A for the QueenslNassau combination. 110. The asserted justifications for treating the Richmond/Suffolk combination

differently from QueenslNassau combination offered in the 2012 Carvin Memorandum are just pretexts designed to mask LATFOR's actual motivation in increasing the size of the Senate to 63

27

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. 111. 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 extent possible. 112. Not surprisingly, LATFOR's proposed 63-seat plan for 2012 is severely districts and overpopulating Democrat-dominated districts to the greatest

mal apportioned. All of the upstate districts in the plan are significantly underpopulated, and all of the New York City districts in the plan are significantly overpopulated. 113. This severe malapportionment favors the Republicans, who control most of the

upstate districts, and disfavors the Democrats, who control most of the New York City districts. 114. Had LATFOR engaged in a neutral and good-faith effort to drawequipopulous

districts, then a full Senate seat would have been shifted from the upstate region to the New York City region. 115. LATFOR decided to increase the size of the Senate to 63 seats because doing so

allowed it to effect a more severe partisan gerrymander than would have been achievable under a 62-seat plan.

28

G.

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
LATFOR manipulated the public hearing process in order to deprive New

116.

Yorkers of any meaningful opportunity to participate in the reapportionment of the Senate. 117. The 2010 Census data was 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. 118. 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. 119. 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. 120. LATFOR failed to inform the public prior to these pre-plan hearings that it had

already decided to adopt a 63-seat Senate plan in 2012. 121. 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. 122. During the pre-plan hearings, members of the public understandably focused their

comments and suggestions on 62-seat redistricting alternatives.

29

123.

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 the public wanted. 124. At the July 19,2011 public hearing in Syracuse, Defendant 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." 125. At the July 20, 2011 hearing in Rochester, anticipating that Plaintiff Senator

Dilan would repeat his earlier request that LATFOR settle the Senate size issue so that persons recommending redistricting plans to LA TFOR 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. 126. Defendant 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.

30

127.

Defendant 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. 128. By failing to inform the public of its decision to add a 63rd seat until the hearings

were over, LATFOR knowingly ensured that interested citizens would have no meaningful opportunity to participate in the redistricting process.

H.
129.

The Constitution Prohibits the Legislature From Increasing the Size of the Senate to 63 Seats in 2012
Section 4, as interpreted by the courts, prescribes an objective mathematical

formula for increasing the size of the Senate. 130. It is imperative that the mathematical formula prescribed in Section 4 be applied Otherwise, Section 4 would present an open invitation for

consistently and evenhandedly.

recurring partisan manipulation during every redistricting cycle. 131. Prior to 2002, decades of precedent, expressly blessed by the New York Court of

Appeals, established that Method A is to be used. 132. Even assuming LATFOR had the discretion to jettison this precedent and switch

to Method B in 2002 - notwithstanding that it did so for purely partisan reasons, and not because of any good-faith or evenhanded reading of Section 4 - LATFOR plainly has no discretion to use Method B with respect to the Queens/N assau combination and Method A with respect to the RichmondlNassau combination within the same reapportionment. 133. There is no constitutionally permissible basis for treating the Queens/Nassau combination with respect to which counting

combination differently from the RichmondlNassau methodology is used.

31

134. 135.

If Method B were used consistently, the Senate would remain at 62 seats in 2012. If the methodology that was used consistently in 1972, 1982, and 1992 were used

in 2012 - treating New York, Bronx, and Westchester as a combined unit, and aggregating by
using Method A - the Senate would remain at 62 seats. 136. 2012. FIRST CAUSE OF ACTION (Declaratory Judgment) 137. PlaintiffslPetitioners hereby incorporate each of the foregoing paragraphs as if There is no constitutional basis for increasing the size of the Senate to 63 seats in

fully set forth herein. 138. 139. It is imperative that Section 4 be interpreted clearly and consistently. Prior to 2002, the Legislature clearly and consistently interpreted Section 4 to

require the use of the Combine Before Rounding Down Method (Method A). 140. Section 4 forbids LATFOR from applying one methodology to QueenslNassau within the same reapportionment.

and the other to Richmond/Suffolk 141.

Section 4 especially forbids LATFOR from doing so when its principal

motivation is the desire to engage in partisan gerrymandering, not a good-faith effort to interpret the Constitution rationally or consistently. 142. The constitutional violation complained of herein is exacerbated by the fact that

LATFOR failed to inform the public of its decision to increase the size of the Senate to 63 seats during the public hearing process, thereby effectively depriving the public of its entitlement to a meaningful opportunity to participate in the redistricting process.

32

143.

LATFOR's decision to apply Method B to QueenslNassau and Method A to

Richmond/Suffolk was not the result of an honest or good-faith effort to interpret the Constitution rationally, consistently, or evenhandedly. 144. LATFOR decided to apply Method B to QueenslNassau and Method A to

Richmond/Suffolk because it made the purely political calculation that a 63-seat plan was essential if the Republicans were to maximize the possibility of retaining control of the Senate. 145. LATFOR's decision to draw a 63-seat plan violates Section 4 and is

unconstitutional. 146. 147. The issue presented herein is ripe for judicial review. Absent resolution of this threshold constitutional question, neither LATFOR, nor

the Legislature, nor the Governor, nor a potential special master will have adequate guidance regarding the appropriate size of the Senate. 148. If this threshold constitutional question is not resolved in very short order, it will

be too late to do so without threatening the integrity of the 2012 Senate elections. 149. A declaratory judgment invalidating LATFOR's decision to increase the size of

the Senate to 63 seats will "serve some practical end in quieting or stabilizing an uncertain or disputed jural relation either as to present or prospective obligations." SECOND CAUSE OF ACTION (Article 78) 150. PlaintiffslPetitioners hereby incorporate each of the foregoing paragraphs as if CPLR § 3001.

fully set forth herein. 151. LATFOR cannot make determinations that are "affected by an error of law" or CPLR § 7803.

that are "arbitrary and capricious."

33

152.

For all ofthe foregoing reasons, LATFOR's decision to increase the size of the

Senate to 6 seats was affected by an error of law and was arbitrary and capricious.

WHEREFORE, PlaintiffslPetitioners respectfully request that judgment be entered against DefendantslRespondents as follows:

a. Declaring pursuant to CPLR § 3001 that the formula prescribed in Article III, section 4 of the New York Constitution forbids New York from increasing the size of its Senate to 63 seats in 2012; b. Ordering pursuant to CPLR Article 78 that the formula prescribed in Article III, section 4 of the New York Constitution forbids New York from increasing the size of its Senate to 63 seats in 2012; and c. Awarding such other and further relief as this Court may deem just and proper.

Dated: New York, New York January 31,2012

By: Eric Hecker JohnR. Cuti Alexander Goldenberg Julie B. Ehrlich CUTI HECKER WANG LLP 305 Broadway, Suite 607 New York, New York 10007 (212) 620-2602 Attorneys for Plaintiffs-Petitioners

34

E HIBIT 1

TO:

Senator Joseph Bruno Senator Dean Skelos Michael A. Carvin March 7, 2002 Senate Size

FROM: DATE: RE:

You have inquired about the best method for apportioning the New York Senate. This memo will not set forth all the constitutional provisions affecting the size of the Senate, or the mathematical calculations, but will focus directly on the relevant issues. After examining the relevant provisions of the New York Constitution, case law and historical evidence, I have concluded that the best way to implement the New York and federal requirements governing apportionment is (i) to combine the portions of Bronx County that, in 1894, were part of Westchester County or New York County with those respective counties to determine those counties' full ratios, and (ii) to calculate the full ratios of Nassau and Queens Counties independently, then aggregate those full ratios to determine the number of senators for the combined counties. In my view, this methodology is most consistent with the intent underlying the New York Constitution and fully lawful. I note that if these modifications are adopted, the size of the New York Senate will be increased to 62 Senators. 1. Westchester, New York and Bronx Counties As part of the constitutional scheme for determining the size of the Senate, the Legislature must compare modem-day counties to those that existed in 1894. See N.Y. Const. Art. III, § 4; see also In re Fay, 291 N.Y. 198 (1943); In re Dowling, 219 N.Y. 44 (1916) (holding that the term "county" in the constitutional phrase "except that if any county having three or more senators" means the "county" as comprised in 1894). This comparison is complicated, however, by the fact that some modern counties, namely Bronx and Nassau Counties, did not exist at that time. With respect to contemporary Bronx County, it was in 1894 part of New York and Westchester Counties. To account for this anomaly, the legislature has sometimes considered the entire Bronx County and New York County as one unit when making the constitutionally-required historical comparisons. See, e.g., In re Schneider, 31 N.Y.2d at 433-34; see also In re Fay, 291 N.Y. 198 (1943) (approving redistricting plan that coupled New York and Bronx counties to determine first full ratios). This approach to allocating Bronx County is unsatisfactory, however, because it ignores the reality that Bronx County was not wholly a part of either New York or Westchester at that time. While not technically impermissible, lumping all of the Bronx in with New York or Westchester is inconsistent with the spirit of the constitutional requirement that the Legislature "compare the number of senators allotted to the counties encompassing substantially the same territory as was contained in the original county, with the number of senators given the original count in the

Constitution of 1894." Schneider v. Rockefeller, 31 N.Y.2d 420, 432 (1972). Indeed, recognizing this problem, the 1971 Joint Legislative Committee on Reapportionment recommended that "[tjhe comparison should be between the counties as organized in Senate districts in 1894 and the counties which today encompass the same 'territory,'" which means apportioning the Bronx between Westchester and New York. See Interim Report of the Joint Legislative Committee on Reapportionment 11 (Dec. 14, 1971). This should be the course that we follow. The most accurate and constitutionally faithful way to compare modern New York, Westchester and Bronx Counties to the counties of 1894 is to determine the portions of Bronx County that were in New York and Westchester Counties at that time and allocate Bronx's population to those counties accordingly. Of the forty-one square miles that currently constitute Bronx County, roughly twenty-one of them were in Westchester in 1894 and twenty were in New York. See Ruth C. Silva, Apportionment in New York, 30 Fordham Law Rev. 581, 626-27 (April 1962). Since we are now aware of the specific contours of the old New YorkIW estchester County line, and modern computer software allows us to precisely determine the current population of that territory, there is simply no reason to fail to replicate the same territory that constituted the original counties. Under this formulation, Westchester has three full ratios, compared to its single full ratio of 1894. Since New York County has fewer ratios than it had in 1894, this means that two senate seats should be added to the Senate because of the increase in Westchester. I have considered the objections that might be made to splitting the current Bronx County for ratio purposes, but they are devoid of merit. First, the New York Court of Appeals has approved dividing Bronx county in this method when it recognized in In re Schneider that this would be most consistent with the New York Constitution and "tak[e] into account that a portion of the Bronx belonged to Westchester in 1894, that in 1895 New York County annexed parts of Westchester County, and that in 1912 New York County ceded certain territory, including the territory annexed from Westchester in 1895, to form Bronx County." See 31 N.Y.2d at 433-34. Second, the overarching goal of apportionment is to accurately account for "increases in the population of the territory of the original county." Id. at 432-33. Without a doubt, the most precise, and thus most constitutionally true, way to determine the population increase in the New York, Westchester and Bronx Counties from 1894 to today is to compare the actual territories that comprised these counties then to the same territories now, which requires splitting Bronx County. Finally, it has never been the understanding ofthe New York Court of Appeals that the term "county" as used in the Constitution means the geographical county as it is comprised today. The Court has recognized that "county" can mean the aggregation of counties best approximating the "county" of 1894. See, e.g., In re Fay, 291 N.Y. at 217 (allowing for the aggregation of Nassau and Queens Counties). And ifthe Constitution allows for aggregation, it must also allow for division. 2. Nassau and Queens Counties. The area now comprising Queens and Nassau Counties was, with minor changes, in 1894 a single county - Queens. In light of this fact, the legislature has determined the ratios for Queens and Nassau Counties either by calculating the full ratios for each and aggregating those full ratios, see In re Fay, 291 N.Y. at 211-12, 217; In re Orans, 17A N.Y.2d 11,12 (calculating ratios in this manner); see also In re Schneider, 31 N.Y.2d at 432 (observing that prior to 1971 this was how counties were apportioned), or by aggregating the raw population of the two

counties and calculating a single full ratio, see In re Schneider, 31 N.Y.2d at 432. The New York Court of Appeals has approved both methods as "consonant with the broad historical objectives underlying the provision for increasing the size of the Senate." See id. at 433. While the other method is permissible, I believe the traditional method of computing senators for Nassau and Queens -- calculating the full ratios for each county individually and aggregating those full ratios -- is more faithful to the Constitution. See Silva supra at 606 (discussing the concerns of Elihu Root that a county should not be allowed to combine territories and districts to "combine their remainders to gain an additional senator"). As noted, this method was used for many years, has already been approved by the New York Court of Appeals, and most accurately reflects the growth that has occurred in the territory of Nassau. See In re Fay, 291 N.Y. at 21718 (holding that by calculating full ratios for Nassau and Queens, then aggregating those ratios, the legislature did not enact a statute that conflicts with the law). If these changes were adopted, Queens and Nassau Counties would be entitled to eight Senators, a net increase in seven over the one Senator Queens enjoyed in 1894. Since this is one less Senator than this area enjoyed in the 1990's, this would result in a decrease of one Senate seat. When this loss of one is combined with the net increase oftwo created in Westchester, the size ofthe Senate would increase by one, to sixty two. If you have any questions or comments, please contact me at your earliest convenience.

HIBIT 2

Memorandum
To:
cc:

Sen. Skelos, Steve Boggess
Vinny Bruy

From:
Date:

Mark Burgeson
05/04/01

Re:

Reapportionment Areas

Following is a description of a preliminary "Reapportionment Area" configuration. I use the term reapportionment area to refer to a group of counties whose combined population will allow a whole number of Senate Districts to be drawn within the exterior boundaries of that group and be within an acceptable population deviation from the ideal. I emphasize that this is just one of many possible configurations. An additional note; I've arranged this configuration based on a 62-seat Senate, but have given deviations from both a 62- and a 61-seat Senate for the upstate and island areas. I did this because I operated on the assumption that east of the Nassau/Queens line and north and west of the Hudson RIA district, the basic number of districts win not change. It is within the New York RIA's that we will have wiggle room to draw districts at a 61or 62-seat Senate. Thus, a 61-seat Senate would combine the Queens, Kings and Hudson areas to create a New York RIA starting at Queens/Nassau and running to Columbia/Albany. Instead of the 30 districts apportioned to that area, it would entail 29 districts @ 323,128, a deviation of +3.87%. Ideal Population for 62 is 306,072; for 61 it is 311,089 RIA Long Island Description, Population and Deviation (62/61) Nassau & Suffolk 9 districts @ 305,990 2,753,913 -.03%/ -1.64%

1

May 4,2001

Queens

Queens 7@318,483

2,229,379 +4.05%/+2.38%

Kings

Kings 8 @ 308,166

2,465,326 +.68%/-.9%

Hudson

Richmond, NY, Bronx, Westchester, Putnam, Dutchess, Columbia 4,676,021 15 @311,735 +1.85%/-.2%

Catskill

Rockland, Orange, Ulster, Sullivan, Delaware 927,890 3 @ 309,297 +1.05% / -.5%

Albany

Albany 294,565 1 @ 294,565 -3.76% / - 5.31 %

Mohawk

Rensselaer, Saratoga, Fulton, Schenectady, Montgomery 604,509 2 @ 302,255 -1.25% / -2.84

Adirondack

Washington, Clinton, Hamilton, Warren, Essex, Franklin 299,603 1 @ 299,603 -2.11% / -3.69%

2

May 4,2001

Binghamton

Broome, Tioga, Cortland 300,919 1 @ 300,919 -1.68% 1-3.27%

Onondaga

Greene, Schoharie, Otsego, Chenango, Herkimer, Oneida, Madison, Onondaga, Cayuga, Oswego, Jefferson, St. Lawrence, Lewis 1,475,480 5 @295,096 -3.59%/ -5.14

Western

Wayne, Ontario, Seneca, Yates, Schuyler, Tompkins, Steuben, Chemung, Monroe, Livingston, Orleans, Genesee, Niagara, Erie, Wyoming, Chautauqua, Cattaraugus, Allegany 2,948,852 10@294,885 -3.66% /-5.21%

Overall deviation at 62 is 7.81 % (-3.76% ..+4.05%) Overall deviation at 61 is 9.18% (-5.31% ..+3.87%)

3

E HIBIT 3

New York State Senate
Majority Redistricting Office 250 Broadway New York, NY 10007

To: From: CC: Date: Re:

Sen. Skelos, Steve Boggess Mark Burgeson Vinnie Bruy July 20,2001 Size of the Senate

We have had numerous discussions regarding the possibility of the Senate increasing in size to 63. While the ultimate decision will be made with political numbers for proposed districts at each size in hand, I believe that the decision basically comes down to the raw census numbers. I have previously stated my contention that the only reason to go to 63 is to strengthen the Long Island delegation by combining politically undesirable areas in the extra district. There are no areas elsewhere in the state where we have the opportunity to pick up a district, or strengthen surrounding districts solely on the basis of adding another district to an area. In fact, as you will recall, our proposed redistricting areas upstate are already configured in such a manner as to draw districts light, to avoid migration downstate. Adding another district anywhere upstate would exacerbate that situation. Initially, my thinking was that in going to 63 we would strengthen all nine members by carving out a tenth district strictly on the island, combining all the minority areas from Elmont on the Nassau/Queens border east to Brentwood in the town of Islip. This would serve the dual purpose of carving out politically undesirable areas and at the same time demonstrate sensitivity to testimony received at both the Nassau/Suffolk and Westchester public hearings. There are four major reasons mitigating against this scenario: a. At a district population of 275,391, the deviation from the ideal for 10 districts on the island would be -8.57%. With a total permissible deviation of 10%, this would give us precious little room to maneuver elsewhere in the state; b. While this minority district is theoretically possible, it is extremely unsightly and would most likely bring scrutiny ala Shaw v. Reno; c. Senator Trunzo lives squarely within one of the major minority concentrations which would be included in the minority district (Brentwood). d. The additional district almost certainly would not be a republican pickup. Thus, all else being equal, the republican majority would be 36-27 The next option under a 63-seat Senate I considered was to include Queens with Long Island. Under this scenario, there would be a minority district bridging Nassau/Queens, with approximately 115,700 in Nassau. That number is reasonably close to the population of the minority areas of Hempstead, Lakeview, Elmont, Roosevelt and Baldwin and could be combined with black areas in Jamaica to form a minority district. Several pertinent comments regarding this scenario: a. Politically, this would certainly help Senators Skelos, Fuschillo and Hannon.

b.

We have received testimony that the minority areas in Hempstead should be together and this would accomplish that. The minority district is reasonably compact and should not run afoul of a Shaw v. Reno issue. c. In this configuration, the Nassau/Suffolk bridge district(s) would have a population of 246,829 in Suffolk and 46,306 in Nassau. It is not my job to be an advocate of one county over another, but the fact of the matter at hand is that we currently have two Nassau-based Senators whose districts comprise portions of Suffolk county. The political reality is that it is extremely unlikely that Nassau (despite any agreement between the two county's organizations) would be able to control a bridge district(s) in which only 15%,is in Nassau county; and that, in turn, while not necessarily meaning the loss of a republican seat, would mean the loss of an incumbent. d. An additional county line cut (Nassau/Queens). e. As above, the additional district would not likely be taken by a republican and the majority would stand at 36-27, all else being equal. Finally, I looked at a reapportionment area which stretches from Suffolk to Columbia county. This would result in a district size of 303,151, of which several comments can be made: a. The Nassau portion of the Nassau/ Queens bridge district would contain a population of only 25,554. That few people would be of negligible political value. b. Although the Nassau/Queens bridge would be a minority district, the above mentioned minority areas in Hempstead (with the exception of Elmont) would still need attention. c. The Nassau/Suffolk district(s) would be a 32%/68% split. Not quite the current 44%/56% split, but closer than the above15%/85% split. Enough to avoid the loss of Nassau county control of that seat(s)? Hard to tell. d. Another county line cut (Queens/Kings). e. Again, unlikely that the additional district would be a republican pickup.

E HIBIT 4

New Yark State Senate
Majority Redistricting Office 250 Broadway New York, NY 10007

Memorandum

To:
From:

CC:
Date: Re:

Senator Skelos Mark Burgeson Vinny Bruy December 18, 2001 "The 135"

There seems to be a bit of confusion over the provenance of the population number in Westchester which is to be attached to Bronx County. There has been some speculation that this number has been arbitrarily chosen out of thin air. It has not. It is arbitrary only to the extent of selecting which of several combinations of counties is to be used for this Reapportionment Area
(Rj A).

Through the examination of various combinations of counties, the following combination (which I'll call the Hudson Rj A) maximizes the Westchester portion attached to Bronx. Following are some numbers and calculations which I hope will better illustrate how this figure was determined. The process requires two distinct steps: A. determination of the size of Senate districts in the Hudson Rj A; and, B. another calculation to determine the portion of Westchester attached to Bronx. A. Senate District size calculation First, calculate the total population of the Hudson Rj A. Hudson Rj A: (Columbia, Dutchess, Putnam, Westchester, Bronx, New York, Richmond & Kings): Kings Richmond New York Bronx Westchester Putnam Dutchess Columbia Total 2,465,326 443,728 1,537,195 1,332,650 923,459 95,745 280,150 63,094 7,141,347

In order to craft districts whose population falls within the acceptable overall deviation of 10%, 23 Senate districts, stretching from Brooklyn to Columbia County, are drawn at a population of 310,493. Because of manipulation of town combinations in Dutchess and Westchester, I was able to take advantage of the NYSConstitution's "town on border" rule and draw the Saland and Leibell districts a little bit "lite" at 301,541 and 303,359 respectively. This has the effect of further increasing the Westchester portion over what it would have been with the Saland and Leibell districts being drawn at 310,493. Subtracting the populations of those two "lite" districts now leaves a remaining population in the Hudson Rj A of 6,536,447. 7,141,347 - 301,541 - 303,359 6,536,447

Saland SD Leibell SD Total remaining in Hudson R/ A

Dividing this remaining total by 21 gives us a district size of 311,259 for the remaining 21 SD's in this Rj A. Because of the NYS Constitution's "block on border" rule, the size of the districts within the city and lower Westchester will each be within one or two of this 311,259 size, simply because you will almost always be able to find a block with small enough populations to equalize the districts. 21 Districts@ 311,259 B. Bronx/Westchester calculation: 1,362,451 - 301,541 - 303,359 - 311,259 - 311,259 135,033

Total population of counties Westchester-Columbia SD 41 Saland SD 40 Leibell SD 37 Oppenheimer SD 35 Spano Total left in Westchester to be attached to Bronx

This total is set. It be changed only by adjusting the R/ A itself. For example, it would be possible to create an alternate Rj A which attaches Queens County to the above Hudson R/ A. Running the same above calculations for this new RjA would result in a Westchester total of 131,418 connected to Bronx. Likewise, another adjustment to the Rj A would be to add Nassau & Suffolk counties. Again, running the same above calculations results in a Westchester total of 134,515. Thus, there is method (maximizing the Westchester total), not arbitrariness in selecting which R/ A to use in calculating the portion of Westchester connected to Bronx. The only consideration now, is how (or if) it is divided between Senators Velella and Hassell-Thompson. If it is not divided, and Senator Velella receives the entire "135", I would suggest that the U.S. Justice Department would look unkindly on eliminating a minority legislator.

E HIBIT 5

51 Louisiana Avenue, N.W. Washington, D.C. 20001.2113 Telephone: +1.202.879.3939 Facsimile: +1.202.626.1700
Michael A. Carvin: (202) 879-7643 macarvin@JonesOay.com

MEMORANDUM

TO:

Senator Dean Skelos Senator Michel Nozzolio Michael A. Carvin January 5,2012 Senate Size

FROM:
DATE:

RE:

You have inquired about the best method for apportioning the New York Senate. In March of 2002, I advised the Senate that the best method for determining the Senate size was the methodology referenced in that memo. (Attachment 1) I continue to believe that this methodology is most faithful to the Constitution. I note that if the 2002 methodology is again employed, the size of the New York Senate will be increased to 63 Senators. In this regard, I have reviewed Committee testimony offered by Mr. Todd Breitbart. As an initial matter, Mr. Breitbart's testimony confirms that the methodology used in 2002 is legally correct, as was already established by the fact that, during last-decade's contentious litigation, no party or court alleged or found any problem with this methodology. Mr. Breitbart himself candidly concedes that the "legal argument in Mr. Carvin's March 7, 2002 memorandum is reasonable, and it entails no intrinsic partisan bias." Testimony, p. 7. Mr. Breitbart, however, contends that utilization ofthe same 2002 methodology in 2010 would produce 62, not 63, Senate seats. He is mistaken. The attached tables show that utilizing the 2002 methodology produces 63 Senate seats in 2012. (Attachment 2) Mr. Breitbart's error is his incorrect assumption that the "Full Ratio" analysis for Richmond and Suffolk should be done by breaking apart the two counties' populations for calculation purposes. Ifthis is done, as Mr. Breitbart's Table G-1 reflects, this provides a ratio of 4 for these two counties, constituting a net increase of 3 Senate districts from 1894. Id. at 15. The proper methodology, however, is to combine Richmond and Suffolk's populations for full ratio calculation purposes, as has been done in every redistricting and which reflects the Senate arrangements as they existed in 1894 ("District 1"). This proper calculation, as reflected in Mr. Breitbart's Table F-1 (id.), demonstrates that Richmond and Suffolk have a combined full ratio of 5, with a net increase of 4 from 1894. Mr. Breitbart's error in ascribing only three additional

WAI-3037972v3

districts to Richmond and Suffolk, rather than the correct 4, is the reason that he underestimates the Senate size for 2012 by one seat, when the 2002 methodology is applied. I hope this is responsive. I would, of course, be happy to discuss this further.

-2WAI-3037972v3

2010 Senate Size Calculation

First Ratio' 19.378.102~· 50

= 387,562

Counties, or groups of counties, which have. or in 1894 had. sufficient population for three or more fuil/irsl rail os and their CUITenljirS{ ratios. New York

I,585,873 ~ 387,562
829,963 - 387,562

= 4.09

Bronx (west of Bronx River)
Westchester

= 2.14

949,11 3 ~ 387,562 ""2.45

Bronx (east of Bronx River)
Kings Queens

555,145"" 387.562
2,504,700

=

1.43

: 387,562 = 6,46

2,230,772 .,..387,562 = 5.76 1,339,532.;- 387.562 "" 3,46 1,962,080' 919,040
C

Nassau
District 1 (Suffolk/Richmond) Erie

387,562'~ 5.06
-r-

387,562 "2.37

Comparison County

with the 1894 apportionment: fulljirsl ratios SO's in 1894 increase in/irsl ratios

New York (w/Bronx, pt.) Westchester (w/Bronx, pt.) Kings Queens (w/Nassau) District! Erie

6 3 6
8

12

o
2

7

o
7

5
2 3

4

o
13

Increase in Senate

Senate district size @ 63:

307,589

2000 Senate Size Calculation

First Ratio. 18,976,457! 50 ~ 379,529

Counties, or groups of counties, which have, or in 1894 had, sufficient population for three or more full first
ratios and their currentfirsl ratios:

New York Bronx (west of Bronx River) Westchester Bronx (east of Bronx River) Kings Queens Nassau District 1 (Suffolk/Richmond) Erie

1,537,529

c

379,529 = 4.05
zx:

794,! 39 .;-379,529 923,459
-i-

2.09

379,529 = 2.43
=

538,5 J I .;-379,529 2,465,326 2,229,379 1,334,544
-e-

1.41

379,529 .- 6.49 379,529
zz:

-j-

5.87

+

379,529 ~ 3.5 J
=0

! ,863,097 -;-379,529 950,265
+

4.90 2.50

379,529

=

Comparison with the 1894 apportionment: County New York (w/Bronx, pt.) Westchester (w/Bronx, pt) Kings Queens (w/Nassau) District I Erie Increase in Senate Senate district size:
fulljirsi ratios 6

SO's in 1894 12

increase uvfirst ratios

o
2

3 6 8
4

7

7

°
3

:2

3

o
12

:11) 62 districts:

306,072