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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ___________________________________________x DANIEL MARKS COHEN; RAQUEL BATISTA;

PURVA BEDI; TODD BREITBART; RAYMOND W. ENGEL; JACQUELINE G. FORRESTAL; PATRICK L. FURLONG; ANDREW KULYK; JERRY C. LEE; IRENE VAN SLYKE; and SENATOR MARTIN MALAV DILAN, Petitioners, -againstGOVERNOR ANDREW M. CUOMO; LIEUTENANT GOVERNOR AND PRESIDENT OF THE SENATE ROBERT J. DUFFY; SENATE MAJORITY LEADER AND PRESIDENT PRO TEMPORE OF THE SENATE DEAN G. SKELOS; SPEAKER OF THE ASSEMBLY SHELDON SILVER; and THE NEW YORK STATE BOARD OF ELECTIONS, Respondents. ___________________________________________x Petitioners 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 Malav 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 and Index No. 12-102185

PETITION

injunction barring Respondents from enforcing Chapter 16 of the Laws of 2012 (Chapter 16), which purports to increase the size of the New York Senate from 62 districts to 63. Chapter 16 is unconstitutional because Article III, section 4 of the New York Constitution (Section 4) 1

forbids the Legislature from increasing the size of the Senate to 63 seats in 2012. In purportedly doing so, the Legislature 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 States most populous counties at the time of the most recent Census (counties having 6% or more of the States 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 countys 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 countys 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 countys full ratios with the number of seats apportioned to the same county in 1894. Combining certain pairs of counties is inevitable when performing 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 of 9.21 is then rounded down to 9 full ratios. But if one uses Method B, the Round Down Before Combining Method, then each countys 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, the New York State Legislative Task Force on Demographic Research and Reapportionment (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 Senates 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 of the Legislatures 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 the Legislature switched from Method A to Method B in 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 Democratdominated downstate area, and to maximize the chances that the Republicans would maintain 4

majority power that the States political demographics no longer supported. These documents confirm that the decision to switch methodologies in 2002 was made without any consideration of the proper interpretation or application of Section 4. 9. But even though the Legislatures change in counting methodologies in 2002 was

a thinly-veiled political ploy, at least the Legislature had seemingly committed, once and for all, based on 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. Or so the public was led to believe. 10. Yet in this redistricting cycle, LATFOR 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: Queens/Nassau (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 the Legislature switched in 2002 because it is more faithful to the Constitution would yield 62 districts this year, the same number as in 2002. 11. The Legislature apparently does not like that number. In a memorandum that was

published on LATFORs website on January 6, 2012, the Republican Majoritys counsel the 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, the Legislature calculated the size of the new 5

2012 Senate by applying two different methodologies to combining counties including the very methodology that they expressly rejected in 2002 within the very same reapportionment plan. The Legislature adopted LATFORs recommendation and passed S. 6696 and A. 9525, which included a 63-seat plan for the Senate, on March 14, 2012. The Governor signed the plan, codified as Chapter 16, on March 15, 2012. 12. 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. 13. Even assuming that the Legislature has a modicum of discretion to determine

which counting methodology is more faithful to the Constitution, Section 4 requires that the decision be exercised in a manner that is rational, evenhanded, and consistent. The Legislature has no discretion to manipulate the Constitution by changing their counting methodology after every Census to suit their 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 States 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. 14. The Legislatures methodological inconsistency, exacerbated by its transparently

partisan manipulation of Section 4, renders unconstitutional the 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 that led to the enactment of an unconstitutional 63-seat plan. The 2010 Census data was released in March 2011. Once it 6

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 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 LATFOR might be considering increasing the size of the Senate, LATFOR Co-Chairman Senator Michael F. 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. 15. No matter what one thinks about the relative merits of Method A and Method B,

there is no constitutional path that leads to a 63-seat Senate in 2012. Consistently using Method B (which the Legislature previously concluded is 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. The Legislatures 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.

16.

This disputed issue of constitutional law must be decided extraordinarily quickly.

In light of the political calendar, and because the Legislature dragged its feet by waiting for more than a year after the Census data was released to enact its constitutionally infirm plan, the deadline for finalizing and enacting a lawful reapportionment plan is rapidly approaching. Accordingly, prompt resolution of this dispute is essential to the orderly administration of the 2012 state legislative elections. 17. For these reasons and those that follow, Petitioners respectfully ask this Court to

declare that increasing the size of the Senate to 63 seats violates Section 4 and to enjoin Respondents from implementing or enforcing Chapter 16. JURISDICTION AND VENUE 18. This Court has jurisdiction pursuant to CPLR 301 et seq., CPLR 3001, Article

III, section 5 of the Constitution, and Unconsolidated Laws 4221. 19. Venue is proper in this County pursuant to CPLR. 503(a), CPLR 505(a),

Article III, section 5 of the Constitution, and Unconsolidated Laws 4221. PARTIES 20. Petitioner 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. 21. Petitioner Raquel Batista is a citizen and resident of Bronx County, New York.

Her address is 2104 Clinton Avenue, #2A, Bronx, New York 10457. 22. Petitioner Purva Bedi is a citizen and resident of New York County. Here address

is 220 Manhattan Avenue, Apartment 4S, New York, New York 10025. 23. Petitioner Todd Breitbart is a citizen and resident of New York County, residing

at 205 West End Avenue, New York, New York, 10023. 8

24.

Petitioner Raymond W. Engel is a citizen and resident of Albany County, residing

at 40 North Grandview Terrace, Voorheesville, NY 12186. 25. Petitioner Jacqueline G. Forrestal is a citizen and resident of Queens County, New

York. Her address is 82-36 166th Street, Jamaica, New York 11432. 26. Petitioner Patrick L. Furlong is a resident of Albany County. His address is 225

Walnut Lane, Slingerlands, New York 12159. 27. Petitioner Andrew Kulyk is a citizen and resident of Erie County. He resides at

200 Delaware Avenue, Unit 1502, Buffalo, New York 14202. 28. Petitioner Jerry C. Lee is a citizen and resident of Nassau County. His address is

2182 Baylis Avenue, Elmont, New York 11003. 29. Petitioner Irene Van Slyke is a United States citizen and a resident of Kings

County. She resides at 206 Bergen Street, Brooklyn, New York 11217. 30. Petitioner Senator Martin Malav Dilan is a member of the New York Senate,

representing the 17th District, which is comprised of several North Brooklyn communities. He serves as the Senate Minority Conferences appointee to LATFOR. Senator Dilan has offices in Albany and at 786 Knickerbocker Avenue, Brooklyn, New York. 31. Respondent Andrew M. Cuomo is the Governor of the State of New York. He is

being sued in his official capacity. 32. Respondent Robert J. Duffy is the Lieutenant Governor of the State of New York

and President of the New York State Senate. He is being sued in his official capacity. 33. Respondent Dean G. Skelos is the Majority Leader and President Pro Tempore of

the New York State Senate, representing the 17th District. Majority Leader Skelos has offices in

Albany and at 55 Front Street, Rockville Centre, New York. He is being sued in his official capacity. 34. Respondent Sheldon Silver is the Speaker of the New York State Assembly,

representing the 64th District. Speaker Silver has offices in Albany and at 250 Broadway, Suite 2307, New York, New York. He is being sued in his official capacity. 35. Respondent the New York State Board of Elections is the agency responsible for

administering and enforcing all laws relating to elections in New York State. Its primary business office is located at 40 Steuben Street, Albany, New York. FACTUAL ALLEGATIONS A. 36. 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. 37. 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). 38. 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. 10

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. 39. 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 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. 40. A simple hypothetical illustrates the mathematical principle animating this

political compromise. Suppose that County X contained 5 out of 50 Senate districts in 1894. 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. 41. 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 11

the importance of ensuring that the fastest-growing counties did not become unduly politically dominant. 42. 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. 43. 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. 44. 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. 45. Counties having three or more full ratios that is, more than 6% of the States

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. 46. Prior to 1962, there was no one person, one vote principle forbidding states from

apportioning legislative districts by county.

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47.

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. 48. 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). 49. 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. 50. 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. 51. The Two Possible Counting Methodologies for Combining Counties, and the Two Areas that Matter The language of Section 4 regarding the size of the Senate does not expressly

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

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52.

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. 53. 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. 54. There are two different ways in which one could calculate the total current

number of full ratios for a county combination such as Queens/Nassau: the Combine Before Rounding Down Method (first combining the current populations of the counties, then dividing the combined population by the ratio number, and then rounding the number of ratios down to the nearest-lower whole number of full ratios) (Method A); or (b) the Round Down Before Combining Method (first dividing the individual populations of each by the ratio number, then rounding each individual quotient down to the nearest-lower whole number of full ratios, and then adding together the two rounded-down numbers of full ratios) (Method B). 55. 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 countys 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. 14

56. 57.

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. 58. As will be explained in the following subsections, each of these areas requires the

combination of county populations (and thus the choice between Method A and Method B) for somewhat different reasons. But none of the differences between these areas justifies treating them differently when performing the county combination math required by Section 4. (i) 59. 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. 60. Thus, in order to perform an apples-to-apples comparison of the number of full

ratios in the Queens/Nassau area today and the number of Senate districts in the area that Queens County comprised in 1894, one must combine either the populations of present-day Queens and Nassau Counties (Method A) or their individual full ratios (Method B).

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(ii) 61. 62.

Richmond/Suffolk

The Richmond/Suffolk combination presents a different twist. Because Richmond and Suffolk Counties both existed in 1894 and both exist

today, it is easy to compare the number of ratios in present-day Richmond to the number of ratios that Richmond had in 1894. The same is true for Suffolk. 63. 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. 64. 65. 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 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. 66. 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. 67. Regardless of what one thinks of the relative merits of Method A and Method B,

there is no basis for using one method for the Richmond/Suffolk combination and another method for the Queens/Nassau combination. As described above, these areas require combinations for 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.

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C. 68.

The Use of the Combine Before Rounding Down Method (Method A) in 1972, 1982, and 1992 It is not always possible to ascertain whether the Legislature has used Method A

or Method B because sometimes the two methods yield the same results. 69. 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). 70. 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. 71. During the 1972, 1982, and 1992 reapportionments, the Legislature used the

Combine Before Rounding Down Method (Method A) when combining counties. (The Special Master who was appointed by a federal court in 1982 used Method A as well in the Senate redistricting plan he prepared for possible use by the federal court.) 72. 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. 17

73.

74.

LATFOR held public redistricting hearings during the spring and summer of

2001. The purpose of those hearings was to provide the public with the opportunity to voice opinions, prior to LATFOR drawing an initial redistricting proposal, regarding what the redistricting plan should look like. 75. 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 the Legislature would use the same methodology in 2002. 76. Based upon the reasonable assumption that the Legislature 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, LATFORs website expressly stated throughout 2001 and early 2002 that the size of the Senate would remain 61 districts. 77. Accordingly, during the LATFOR hearing process throughout 2001 and early

2002, the public presented LATFOR with proposed 61-seat Senate redistricting plans. 78. 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). The 2002 Carvin Memorandum is attached hereto as Exhibit 1. 79. The 2002 Carvin Memorandum explained that the size of the Senate would be

increased to 62 seats based upon two changes that departed from decades of precedent for performing the calculation required by Section 4. 18

80.

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. 81. The Bronx therefore presents an issue that the Queens/Nassau and

Richmond/Suffolk areas do not: how to determine the number of full ratios for the areas that in 1894 constituted New York and Westchester Counties when their 1894 boundary the Bronx River is right in the middle of present-day Bronx County? 82. 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 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. 83. 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

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Bronx east of the Bronx River would be combined with Westchester County for purposes of determining the size of the Senate. 84. 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. 85. The second change that LATFOR made in 2002 was to abandon the Combine

Before Rounding Down Method (Method A), and to use, for the first time in over three decades, the Round Down Before Combining Method (Method B). The 2002 Carvin Memorandum did not discuss whether to use Method A or Method B with respect to Richmond/Suffolk, because both methods yielded the same results for that area given the 2000 Census data. But the 2002 Carvin Memorandum expressly concluded that Method B should be used in Queens-Nassau. In so concluding, the 2002 Carvin Memorandum asserted, without significant analysis, that Method B is more faithful to the Constitution than Method A. 86. Whereas using Method A in connection with the Queens/Nassau combination

would have yielded 63 Senate seats in 2002, using Method B yielded 62 Senate seats in 2002. This is so because Queens had 5.87 ratios in 2002, and Nassau had 3.52. Because the remainders of .87 and .52 added up to more than one, using Method B instead of Method A thereby eliminating these remainders yielded one less seat. 20

87.

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. 88. 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. 89. Although the 2002 Carvin Memorandum purported to apply a neutral legal

analysis, it is now clear that LATFORs decision to increase the size of the Senate from 61 seats to 62, but not to 63, was politically motivated. 90. LATFORs 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 the chief architect of the 2002 plan. LATFOR was compelled to produce these previously secret memoranda in subsequent federal court litigation. 91. 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 plans 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. 92. 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 21

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 architects 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 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. 93. 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 LATFORs 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

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architect believed the one person, one vote principle imposed. The December 18, 2001 Memorandum is attached hereto as Exhibit 4. 94. Thus, after secretly deciding in or about the summer of 2001 that it would create

62 Senate districts, LATFOR nonetheless continued to encourage and accept proposals from the public for 61-district plans, knowingly misleading the public just as it did again in 2011 and 2012. 95. Indeed, on February 13, 2002 the day before LAFTOR announced the 62-seat

plan that eventually would become law LATFORs website still said that there would be 61 districts in the 2002 plan. 96. In sum, there is no question that LATFOR first decided to create a 62-seat plan in

2002 for partisan political reasons, and only then instructed the Senate Majoritys attorney to concoct a legal justification for doing so. E. 97. The Legislatures 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 the Legislature 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). 98. But the Legislature has now concocted an even more novel and bizarre way to

interpret Section 4. LATFOR announced on January 6, 2012 that it had determined that the

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Senate size should increase from 62 seats to 63 by using both counting methodologies Method A and Method B simultaneously. 99. Given the population figures revealed in the 2010 Census, there are two places

where the choice of methodology affects the size of the Senate: Nassau/Queens (which must be combined to compare those counties to 1894 because Nassau did not exist at the time) and Suffolk/Richmond (which must be combined because those counties were combined in a single Senate district in 1894). 100. Using the Round Down Before Combining Method (Method B) to which the

Legislature switched in 2002 because it supposedly is more faithful to the Constitution would have yielded 62 districts this year, the same number as in 2002. 101. But in a memorandum that LATFOR published on its website on January 6, 2012

(the 2012 Carvin Memorandum), the Senate Majoritys attorney the same attorney who authored the 2002 memorandum instructed LATFOR to use the Round Down Before Combining Method (Method B) with respect to the Nassau/Queens combination, but to use the Combine Before Rounding Down Method (Method A) with respect to the Suffolk/Richmond combination. The 2012 Carvin Memorandum is attached hereto as Exhibit 5. 102. The Legislature has adopted both the conclusion and the rationale in the 2012

Carvin Memorandum. LATFOR posted the 2012 Carvin Memorandum on its website with the following explanation: The State Constitution requires 150 Assembly districts and contains a formula for the determination of the number of Senate districts. Based on the formula and analysis of the 2010 census data, the size of the Senate will increase by 1 seat to 63 (Click here to view technical determination of the size of the Senate).

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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. 103. The Legislature therefore calculated the size of the new 2012 Senate by using two

different methodologies including the very methodology that the Legislature expressly rejected in 2002 within the same reapportionment plan. 104. Using this unprecedented and illogical mix-and-match formula, the Legislature

determined that the Senate would be increased to 63 seats. 105. The 2012 Carvin Memorandum attempts to mask its internal methodological

inconsistency. In the table entitled 2010 Senate Size Calculation that is appended to it, the 2012 Carvin Memorandum lists only the combined population, and the number of full ratios computed from the combined population, of Richmond and Suffolk Counties, rather than listing the individual populations and the individual number of full ratios of those two counties separately (as the 2012 Carvin Memorandum does for every other county that is sufficiently populous to affect the Senate size). 106. 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. 107. 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. 25

108.

Despite the obvious constitutional defects in the formula invented by LATFOR in

order to devise a Senate plan consisting of 63 districts, the Legislature adopted and the Governor signed a 63-seat plan passed in conformity with LATFORs recommendation. F. The Decision to Use Both Methods Simultaneously Was Political, Not the Result of any Effort by the Legislature to Apply the Constitution Consistently or Evenhandedly The 2012 Carvin Memorandum expressly states that the proper methodology

109.

for combining Richmond and Suffolk for purposes of performing the Senate size calculation is to use the Combine Before Rounding Down Method (Method A). 110. 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 the Legislature has not made a good-faith effort to apply Section 4 evenhandedly or consistently. 111. 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 Queens/Nassau, which the 2012 Carvin Memorandum rejected as precedent for the current treatment of Queens/Nassau. In 2002, the Legislature expressly rejected Method A, concluding that the Round Down Before Combining Method (Method B) is more faithful to the Constitution. 112. 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 26

why Method B is more faithful to the Constitution with respect to the Queens/Nassau combination but not with respect to the Richmond/Suffolk combination, and no such reason exists. 113. It is not true that using Method A for the Richmond/Suffolk combination, but not

for the Queens/Nassau combination, reflects the Senate arrangements as they existed in 1894 with respect to Richmond/Suffolk but not Queens/Nassau. Although the 1894 Constitution expressly provides that Richmond and Suffolk Counties initially would share a single Senate district, that historical fact does not in any way justify treating the Richmond/Suffolk combination differently from the Queens/Nassau combination. After all, using Method A for the Queens/Nassau 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 Queens/Nassau combination, and the Legislature has followed its recommendation. 114. The asserted justifications for treating the Richmond/Suffolk combination

differently from Queens/Nassau combination offered in the 2012 Carvin Memorandum are just pretexts designed to mask the Legislatures actual motivation in increasing the size of the Senate to 63 seats: the desire to engage in severe partisan gerrymandering in an effort to enable the Republican Majority to preserve its razor-thin and demography-defying control over the Senate. 115. Given New Yorks 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

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Republican-dominated districts and overpopulating Democrat-dominated districts to the greatest extent possible. 116. Not surprisingly, the Legislatures 63-seat plan for 2012 is severely

malapportioned. 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. 117. 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. 118. Had the Legislature engaged in a neutral and good-faith effort to draw

equipopulous districts, then a full Senate seat would have been shifted from the upstate region to the New York City region. 119. The Legislature 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. 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

120.

Yorkers of any meaningful opportunity to participate in the reapportionment of the Senate. 121. 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. 122. LATFOR holds a series of hearings both before and after it releases its proposed

reapportionment plan. These are the only organized means through which the legislature receives citizen input concerning proposed plans. The purpose of the pre-plan hearings is to 28

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 LATFORs proposed plan should be reconsidered by the Legislature. After these meetings conclude, there is no further opportunity for formal public input concerning legislative redistricting. 123. 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. 124. LATFOR failed to inform the public prior to these pre-plan hearings that it had

decided to adopt a 63-seat Senate plan in 2012. 125. 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. 126. During the pre-plan hearings, members of the public understandably focused their

comments and suggestions on 62-seat redistricting alternatives. 127. When asked during the hearings whether LATFOR might be considering

increasing the size of the Senate, Senator Nozzolio repeatedly responded by stating that LATFOR would not consider that issue until the public had weighed in on the number of Senators the public wanted. 128. At the July 19, 2011 public hearing in Syracuse, Senator Nozzolio expressed his

belief that LATFOR should postpone determining and announcing the number of Senate districts that would be created and should be asking the public for their view as opposed to determining any kind of dictation of a number and find out what the public wants in terms of a number of representatives. 29

129.

At the July 20, 2011 hearing in Rochester, anticipating that Senator Martin

Malav Dilan would repeat his earlier request that LATFOR settle the Senate size issue so that persons recommending redistricting plans to LATFOR would know how many districts to create, Senator Nozzolio said: [T]he New York State Senate is currently at a number of 62 members, and . . . Senator Dilan [is] raising a very thought-provoking question as to what will the number of the Senate be? The Constitution and the laws of the state provide for the ability for that number to grow or shrink depending on particular policy questions, and Senator Dilan has raised that question now twice. I think that its 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. 130. 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. 131. 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. 132. 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 Legislatures redistricting process. H. 133. 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.

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134.

It is imperative that the mathematical formula prescribed in Section 4 be applied

consistently and evenhandedly. Otherwise, Section 4 would present an open invitation for recurring partisan manipulation during every redistricting cycle. 135. Prior to 2002, decades of precedent, expressly blessed by the New York Court of

Appeals, established that Method A is to be used. 136. Even assuming the Legislature 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 the Legislature plainly had no discretion to use Method B with respect to the Queens/Nassau combination and Method A with respect to the Richmond/Nassau combination within the same reapportionment. 137. There is no constitutionally permissible basis for treating the Queens/Nassau

combination differently from the Richmond/Nassau combination with respect to which counting methodology is used. 138. 139. 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. 140. in 2012. There was no constitutional basis for increasing the size of the Senate to 63 seats

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FIRST CAUSE OF ACTION (Article III, Section 4 of the New York Constitution) (Unconsolidated Laws 4221) 141. forth herein. 142. 143. It is imperative that Section 4 be interpreted clearly and consistently. Prior to 2002, the Legislature clearly and consistently interpreted Section 4 to Petitioners hereby incorporate each of the foregoing paragraphs as if fully set

require the use of the Combine Before Rounding Down Method (Method A). 144. Section 4 forbids the Legislature from applying one methodology to

Queens/Nassau and the other to Richmond/Suffolk within the same reapportionment. 145. Section 4 especially forbids the Legislature from doing so when their principal

motivation is the desire to engage in partisan gerrymandering, not a good-faith effort to interpret the Constitution rationally or consistently. 146. 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. 147. The decision to apply Method B to Queens/Nassau 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. 147. The Legislature decided to apply Method B to Queens/Nassau 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. 148. Chapter 16 violates Section 4 and is unconstitutional. 32

149.

Petitioners are entitled to a declaratory judgment establishing that Section 4

forbids New York from increasing the size of its Senate to 63 seats in 2012 and an order pursuant to Unconsolidated Laws 4221 permanently enjoining Respondents from implementing the 63seat plan.

WHEREFORE, Petitioners respectfully request that judgment be entered against Respondents as follows: a. Declaring 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. Enjoining Respondents from implementing the 63-seat plan enacted by the Legislature; and c. Awarding such other and further relief as this Court may deem just and proper.

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EXHIBIT 1

EXHIBIT 2

EXHIBIT 3

EXHIBIT 4

EXHIBIT 5