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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK
___________________________________________x
DANIEL MARKS COHEN; RAQUEL BATISTA; Index No. 12-10PURVA BEDI; TODD BREITBART; RAYMOND W.ENGEL; JACQUELINE G. FORRESTAL;PATRICK L. FURLONG; ANDREW KULYK;JERRY C. LEE; IRENE VAN SLYKE; and SENATOR MARTIN MALAVÉ DILAN, PETITION
Petitioners,
-against-
GOVERNOR ANDREW M. CUOMO; LIEUTENANTGOVERNOR AND PRESIDENT OF THE SENATEROBERT J. DUFFY; SENATE MAJORITYLEADER AND PRESIDENT PRO TEMPORE OFTHE SENATE DEAN G. SKELOS; SPEAKER OFTHE ASSEMBLY SHELDON SILVER; and THE NEW YORK STATE BOARD OF ELECTIONS,
Respondents. ___________________________________________x
Petitioners Daniel Marks Cohen, Raquel Batista, Purva Bedi, Todd B
Raymond W. Engel, Jacqueline G. Forrestal, Patrick L. Furlong, Andrew Kulyk, Jer
Irene Van Slyke, and Senator Martin Malavé Dilan, by and through their attorneys,
Wang LLP, for their Complaint hereby allege as follows:
NATURE OF THE PETITION
1. This petition pursuant to Unconsolidated Laws § 4221 seeks a declar
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forbids the Legislature from increasing the size of the Senate to 63 seats in 2012. In
doing so, the Legislature failed to apply the Senate size formula prescribed in Sectio
consistently, rationally, or in good faith.
2. The Constitution of 1894 created a 50-seat Senate. The third paragra
Section 4 prescribes a mathematical formula for expanding the size of the Senate in
years based on county population growth. Fixing the size of the Senate in the Const
providing a specific mathematical formula for determining when and how to expand
the Senate in response to future population growth, was designed to make that judgm
objective and to remove it from the unconstrained hands of political actors.
3. The mathematical formula prescribed in Section 4 requires comparin
populations of the State’s most populous counties at the time of the most recent Cen
having 6% or more of the State’s total population) with (ii) the populations of such c
1894. The first step is to divide the current State population by 50 (the number of S
districts in 1894). This quotient is called the “ratio” for that year. Next, one determ
number of “full ratios” for each county above the 6% threshold by dividing each suc
current population by the “ratio” for the current year and dropping the remainder, ho
The current number of “full ratios” for each of these populous counties is then comp
number of Senate districts that such county contained in 1894. If the county’s curre
“full ratios” is greater than the number of Senate districts that the county contained i
the size of the Senate is increased by the difference between those two numbers.
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constitutionally prescribed mathematical formula because certain present-day count
exist in 1894. For example, in 1894 the territory now organized as Nassau County w
Queens. Thus, in order to compare present-day apples to 1894 apples with respect t
Queens/Nassau as Section 4 requires, one must combine present-day Queens and N
treat them as a unit, and one must compare that combined present-day unit to Queen
existed in 1894.
5. There are two ways in which the total current number of “full ratios”
and Queens collectively might be calculated, the key difference being when in the p
rounds down the fractional remainders: (a) one could first combine the current popu
Queens and Nassau, then divide the combined population by the “ratio” number, and
the combined number of “ratios” down to the nearest-lower whole number (the “Co
Rounding Down Method” or “Method A”); or (b) one could first identify the individ
of “full ratios” for each county by dividing the individual populations of each by the
number, round the number of “ratios” in each individual county down to the nearest
number, and then add together the two rounded-down counts of “full ratios” (the “R
Before Combining Method” or “Method B”).
6. Sometimes these two methods lead to the same result, but sometimes
For example, the 2010 Census revealed that Queens has a population of 2,230,722 a
Nassau has a population of 1,339,532. The “ratio” this year is 387,562 (the total Ne
population of 19,378,102 divided by 50). If one uses Method A, then the populatio
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first divided by the “ratio,” which yields 5.76 “ratios” for Queens (2,230,722 divide
387,562) and 3.46 “ratios” for Nassau (1,339,532 divided by 387,562), those “ratios
rounded down to 5 and 3, respectively, and the rounded-down “full ratios” are then
yield 8 “full ratios.” The difference – 9 “full ratios” versus 8 – means that the Com
Rounding Down Method would yield, based on these numbers, one more Senate sea
Round Down Before Combining Method.
7. During the 1972, 1982, and 1992 reapportionments, the Combine Be
Rounding Down Method (Method A) was used consistently. In 2002, however, in a
unexpected about-face, the New York State Legislative Task Force on Demographi
and Reapportionment (“LATFOR”) reversed this longstanding interpretation of Sec
deciding to use the Round Down Before Combining Method (Method B) for the firs
modern history. LATFOR attempted to justify this departure from decades of prece
publishing a memorandum authored by the attorney for the Senate’s Republican Ma
announced, with little legal analysis, that the Round Down Before Combining Meth
B) “is more faithful to the Constitution.” No court ever addressed the legality of the
Legislature’s decision to shift from Method A – which was expressly blessed by the
Court of Appeals in 1972 and consistently used by the Legislature for more than 30
Method B in 2002.
8. Moreover, internal documents that LATFOR was subsequently comp
produce in litigation revealed that the Legislature switched from Method A to Meth
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majority power that the State’s political demographics no longer supported. These
confirm that the decision to switch methodologies in 2002 was made without any co
of the proper interpretation or application of Section 4.
9. But even though the Legislature’s change in counting methodologies
a thinly-veiled political ploy, at least the Legislature had seemingly committed, onc
based on ostensibly thoughtful legal reasoning, to use the Round Down Before Com
Method (Method B), and not the Combine Before Rounding Down Method (Method
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 d
from its previous practice, inventing an even more novel and bizarre interpretation o
Given the population figures revealed in the 2010 Census, there are two places wher
of methodology affects the size of the Senate: Queens/Nassau (which must be com
compare those counties to 1894 because Nassau did not exist at the time) and Richm
(which must be combined because those counties were combined in a single Senate
1894). Using the Round Down Before Combining Method (Method B) – to which t
Legislature switched in 2002 because it is “more faithful to the Constitution” – wou
districts this year, the same number as in 2002.
11. The Legislature apparently does not like that number. In a memoran
published on LATFOR’s website on January 6, 2012, the Republican Majority’s cou
same attorney who authored the 2002 memorandum – instructed it to use the Round
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2012 Senate by applying two different methodologies to combining counties – includ
methodology that they expressly rejected in 2002 – within the very same reapportion
The Legislature adopted LATFOR’s recommendation and passed S. 6696 and A. 95
included a 63-seat plan for the Senate, on March 14, 2012. The Governor signed th
codified as Chapter 16, on March 15, 2012.
12. This plainly unconstitutional approach, manufactured for the first tim
round of redistricting, yields 63 seats – the number of districts that the Republican M
concluded would best position them to further their partisan attempt to maintain the
control of the Senate.
13. Even assuming that the Legislature has a modicum of discretion to de
which counting methodology is more faithful to the Constitution, Section 4 requires
decision be exercised in a manner that is rational, evenhanded, and consistent. The
has no discretion to manipulate the Constitution by changing their counting method
every Census to suit their ephemeral partisan purposes, let alone to use two differen
methodologies within the same reapportionment . Because Section 4 governs the fu
structure of one of the State’s most important political institutions, it contains immu
rules that each political party is bound to respect. Were it otherwise, then Section 4
present an open invitation for recurring partisan manipulation during every redistric
14. The Legislature’s methodological inconsistency, exacerbated by its t
partisan manipulation of Section 4, renders unconstitutional the addition of a 63rd d
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received the Census data, LATFOR had all the information it needed to decide whet
required the size of the Senate to be increased from 62 seats to 63. During the publ
process – which began in July 2011 and concluded in November 2011 – LATFOR f
inform the public that it had decided to adopt a 63-seat plan. Indeed, LATFOR did
this decision until January 6, 2012, by which time it already had held all 14 of the p
hearings that supposedly had been convened to afford the public the opportunity to
views on redistricting alternatives. During these pre-announcement hearings, memb
public understandably focused their comments and suggestions on 62-seat redistrict
alternatives. Indeed, when asked during the hearings whether LATFOR might be co
increasing the size of the Senate, LATFOR Co-Chairman Senator Michael F. Nozzo
repeatedly responded by stating that LATFOR would not consider that issue until th
weighed in on the number of Senators it wanted (as if public opinion has anything to
objective population-based mathematical formula prescribed in Section 4). By faili
the public of its decision until all 14 of the hearings were over, LATFOR ensured th
citizens would have no meaningful opportunity to participate in the redistricting pro
15. No matter what one thinks about the relative merits of Method A and
there is no constitutional path that leads to a 63-seat Senate in 2012. Consistently u
B (which the Legislature previously concluded “is most faithful to the Constitution”
seats. Consistently using the methodology that the Legislature used in 1972, 1982,
likewise yields 62 seats. The Legislature’s novel, irrational, legally unprincipled, p
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16. This disputed issue of constitutional law must be decided extraordin
In light of the political calendar, and because the Legislature dragged its feet by wai
than a year after the Census data was released to enact its constitutionally infirm pla
deadline for finalizing and enacting a lawful reapportionment plan is rapidly approa
Accordingly, prompt resolution of this dispute is essential to the orderly administrat
2012 state legislative elections.
17. For these reasons and those that follow, Petitioners respectfully ask t
declare that increasing the size of the Senate to 63 seats violates Section 4 and to enj
Respondents from implementing or enforcing Chapter 16.
JURISDICTION AND VENUE
18. This Court has jurisdiction pursuant to CPLR § 301 et seq., CPLR §
III, section 5 of the Constitution, and Unconsolidated Laws § 4221.
19. Venue is proper in this County pursuant to CPLR. §§ 503(a), CPLR 5
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
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, N
Her address is 2104 Clinton Avenue, #2A, Bronx, New York 10457.
22. Petitioner Purva Bedi is a citizen and resident of New York County.
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24. Petitioner Raymond W. Engel is a citizen and resident of Albany Cou
at 40 North Grandview Terrace, Voorheesville, NY 12186.
25. Petitioner Jacqueline G. Forrestal is a citizen and resident of Queens
York. Her address is 82-36 166th Street, Jamaica, New York 11432.
26. Petitioner Patrick L. Furlong is a resident of Albany County. His add
Walnut Lane, Slingerlands, New York 12159.
27. Petitioner Andrew Kulyk is a citizen and resident of Erie County. H
200 Delaware Avenue, Unit 1502, Buffalo, New York 14202.
28. Petitioner Jerry C. Lee is a citizen and resident of Nassau County. H
2182 Baylis Avenue, Elmont, New York 11003.
29. Petitioner Irene Van Slyke is a United States citizen and a resident of
County. She resides at 206 Bergen Street, Brooklyn, New York 11217.
30. Petitioner Senator Martin Malavé Dilan is a member of the New Yor
representing the 17th District, which is comprised of several North Brooklyn comm
serves as the Senate Minority Conference’s appointee to LATFOR. Senator Dilan h
Albany and at 786 Knickerbocker Avenue, Brooklyn, New York.
31. Respondent Andrew M. Cuomo is the Governor of the State of New
being sued in his official capacity.
32. Respondent Robert J. Duffy is the Lieutenant Governor of the State o
and President of the New York State Senate. He is being sued in his official capaci
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Albany and at 55 Front Street, Rockville Centre, New York. He is being sued in his
capacity.
34. Respondent Sheldon Silver is the Speaker of the New York State Ass
representing the 64th District. Speaker Silver has offices in Albany and at 250 Broa
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 res
administering and enforcing all laws relating to elections in New York State. Its pri
business office is located at 40 Steuben Street, Albany, New York.
FACTUAL ALLEGATIONS
A. The Political Compromise Embodied in the Formula Prescribed Article III, Section 4 of the Constitution
36. During the 1894 Constitutional Convention (the “Convention”), ther
debate about how future Senate reapportionments would impact the balance of powe
the fast-growing metropolises of New York City and Brooklyn (which had not yet m
the less populous upstate counties.
37. There were two major factions: Democrats, whose political base wa
downstate counties of New York and Kings; and Republicans, who generally repres
sparsely populated (and territorially much larger) upstate districts (some of which unapportionment were comprised of as many as eight whole counties).
38. Several proposals were introduced during the Convention that would
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Delegates to the Convention from New York and Kings Counties asserted that the a
such proposals would unfairly dilute the legitimate influence of the residents of thos
counties.
39. In the end, the Delegates to the Convention agreed to a specific comp
the one hand, Senate districts would be apportioned largely based upon population (
other non-population-based rules, such as that no county could have more than one t
total number of Senate districts). But on the other hand, if the largest counties conti
more rapidly than the smaller counties, and if this relative growth reached a prescrib
mathematical threshold, then the largest counties would receive additional Senate se
size of the Senate would be increased by that number as well.
40. A simple hypothetical illustrates the mathematical principle animatin
political compromise. Suppose that County X contained 5 out of 50 Senate districts
And suppose that County X grew so rapidly between 1894 and 1920, relative to the
counties that, based on population, it would be entitled to 10 out of 50 seats. The co
animating the political compromise embodied in Section 4 is that under such circum
County X would be allocated the 5 additional districts to which it was entitled based
population, but the size of the Senate would be increased by 5 seats as well. Thus, i
controlling 10 districts out of 50, County X would control 10 districts out of 55. In
County X would get 5 more seats, but it would not “take” these seats from the less p
counties.
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the importance of ensuring that the fastest-growing counties did not become unduly
dominant.
42. The relevant language in Section 4 provides that:
[T]he Senate shall always be comprised of fifty members, except thatany county having three of more senators at the time of any [future]apportionment shall be entitled on such ratio to an additional senatorsenators, such additional senator or senators shall be given to such co
in addition to the fifty senators, and the whole number of senators shincreased to that extent.
NY Const. Art III, §4.
43. The Court of Appeals has interpreted the language in Section 4 sever
since 1894. Those decisions establish the procedure that Section 4 requires in deter
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 m
Census, is divided by 50 – the minimum number of Senate seats. This quotient prod
called “ratio” figure for that year.
45. Counties having three or more “full ratios” – that is, more than 6% o
total citizen population – are then allotted one Senate district for each “full ratio.” T
of districts allotted to each county over the 6% threshold is then compared with the
districts such county was allotted in 1894. The increase, if any, is then added to thedistricts to yield the “whole number” of districts in the new Senate. Decreases, if an
disregarded.
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47. Section 4, at it was originally ratified in 1894, required that Senate di
apportioned in part based upon population but in part based upon non-population, c
rules.
48. For example, the second paragraph of Section 4 provided that no cou
have more than one third of the total number of Senate districts (even if it had signif
than one third of the total population of the State), and that no two adjoining countie
counties separated only by public waters, such as New York and Kings) could collec
more than one half of the total number of Senate districts (even if they collectively h
significantly more than one half of the total population of the State).
49. These non-population, county-based rules became unconstitutional w
person, one vote principle emerged during the 1960s and required states to apportion
districts based upon population.
50. The New York Court of Appeals recognized in Matter of Orans, 15 N
(1965), that strict application of the non-population, county-based apportionment ru
and second paragraphs of Section 4 would violate the one person, one vote principle
Court held that the third paragraph of Section 4 still prescribes the method for determ
total number of Senate districts, although it would no long affect the apportionment
districts among the counties.
B. The Two Possible Counting Methodologies for Combining Count
Two Areas that Matter
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52. For example, the area that in 1894 was known as Queens County now
with only insubstantial differences, the area that currently contains both Queens and
Counties.
53. Because Section 4 requires an apples-to-apples comparison of the nu
ratios” of population in the most populous counties relative to the number of district
counties had in 1894, one must combine the populations of present-day Queens and
order to make this comparison.
54. There are two different ways in which one could calculate the total cu
number of “full ratios” for a county combination such as Queens/Nassau: the Comb
Rounding Down Method (first combining the current populations of the counties, th
the combined population by the “ratio” number, and then rounding the number of “r
to the nearest-lower whole number of “full ratios”) (Method A); or (b) the Round D
Combining Method (first dividing the individual populations of each by the “ratio”
rounding each individual quotient down to the nearest-lower whole number of “full
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
The two methods yield different results when the fractional remainders of each indiv
county’s “ratios” add up to more than one. To use the example illustrated in the intr
section, based on the 2010 Census results, this year Queens has 5.76 “ratios,” and N
3.46 “ratios.” The .76 and .46 fractional remainders, when combined, add up to mo
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56. Section 4 does not expressly provide which method should be used.
57.
There are two different sets of counties where the difference between
Method A and Method B sometimes affects the size of the Senate: Queens/Nassau
Richmond/Suffolk. These two areas both (i) yield more than three full ratios (6% o
State population) and thus are relevant to the Senate size calculus and (ii) for somew
reasons, require the combination of county populations in order to perform the comp
required by Section 4.
58. As will be explained in the following subsections, each of these areas
combination of county populations (and thus the choice between Method A and Met
somewhat different reasons. But none of the differences between these areas justifi
them differently when performing the county combination math required by Section
(i) Queens/Nassau
59. As previously discussed, the area that in 1894 was known as Queens
includes, with only insubstantial differences, the area that currently contains both Qu
Nassau Counties.
60. Thus, in order to perform an apples-to-apples comparison of the num
ratios” in the Queens/Nassau area today and the number of Senate districts in the are
Queens County comprised in 1894, one must combine either the populations of pres
Queens and Nassau Counties (Method A) or their individual “full ratios” (Method B
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(ii) Richmond/Suffolk
61.
The Richmond/Suffolk combination presents a different twist.62. Because Richmond and Suffolk Counties both existed in 1894 and bo
today, it is easy to compare the number of “ratios” in present-day Richmond to the n
“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
to the number of Senate districts that Richmond had in 1894, which is the comparis
Section 4 requires. This is so because Richmond, by itself, did not have any Senate
1894. Nor did Suffolk. Instead, Richmond and Suffolk shared a single Senate distr
64. The identical problem arises in making the comparison for Suffolk C
65. Because neither Richmond nor Suffolk had its own Senate district in
only way to perform the comparison required by Section 4 is to combine present-day
and Suffolk and compare the number of “full ratios” in that combined area with the
district that these two counties shared in 1894.
66. Because Richmond and Suffolk must be combined in order to perform
comparison required by Section 4, one must decide whether to use Method A or Me
67. Regardless of what one thinks of the relative merits of Method A and
there is no basis for using one method for the Richmond/Suffolk combination and an
method for the Queens/Nassau combination. As described above, these areas requir
combinations for somewhat different reasons. But there is nothing about these diffe
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C. The Use of the “Combine Before Rounding Down Method” (Met
1972, 1982, and 1992
68. It is not always possible to ascertain whether the Legislature has used
or Method B because sometimes the two methods yield the same results.
69. We know, however, that the Legislature used Method A in 1972 beca
appropriateness of using that method was litigated before and decided by the Court
Schneider v. Rockefeller , 31 N.Y.2d 420 (1972).
70. In Schneider , the Court held that the Legislature was permitted to use
Combine Before Rounding Down Method (Method A), and was not constitutionally
use the Round Down Before Combining Method (Method B), so long as the Legisla
made a good-faith effort to comply with the mandate of the equal population princip
71. During the 1972, 1982, and 1992 reapportionments, the Legislature u
Combine Before Rounding Down Method (Method A) when combining counties. (
Master who was appointed by a federal court in 1982 used Method A as well in the
redistricting plan he prepared for possible use by the federal court.)
72. To be sure, in some instances during those cycles, the difference betw
Method A and Method B with respect to various county combinations made no diffe
respect to the size of the Senate. But where the two methods yielded different Sena
because of the county combinations in any of those areas, Method A was consistentl
1972, 1982, and 1992.
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74. LATFOR held public redistricting hearings during the spring and sum
2001. The purpose of those hearings was to provide the public with the opportunityopinions, prior to LATFOR drawing an initial redistricting proposal, regarding what
redistricting plan should look like.
75. Because the Legislature had used the Combine Before Rounding Dow
(Method A) during the 1972, 1982, and 1992 reapportionments, it was generally und
during the hearing process that the Legislature would use the same methodology in
76. Based upon the reasonable assumption that the Legislature would per
Senate size calculation in 2002 the same way the calculation had been performed in
and 1992, it was generally understood that the size of the Senate in 2002 would be 6
same as it had been in 1982 and 1992) because that is the number that would have re
applying the decades of settled practice prior to 2002. Indeed, LATFOR’s website
stated throughout 2001 and early 2002 that the size of the Senate would remain 61 d
77. Accordingly, during the LATFOR hearing process throughout 2001
2002, the public presented LATFOR with proposed 61-seat Senate redistricting plan
78. In March 2002, however, LATFOR announced unexpectedly that the
Senate would be increased to 62 seats. LATFOR made this announcement by posti
website a March 7, 2002 memorandum written by the attorney for the Senate Repub
Michael A. Carvin (the “2002 Carvin Memorandum”). The 2002 Carvin Memorand
attached hereto as Exhibit 1.
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80. First, the 2002 Carvin Memorandum explained that the Bronx would
counted as it had been in 1972, 1982, and 1992. The Bronx presents a unique comp because, whereas Nassau County is wholly contained within the area that in 1894 w
County, Bronx County occupies the area that in 1894 was partially in New York Co
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 th
in 1894 constituted New York and Westchester Counties when their 1894 boundary
River – is right in the middle of present-day Bronx County?
82. In 1972, 1982, and 1992, the Legislature resolved this issue by (i) ad
the populations of present-day New York, Bronx, and Westchester Counties and (ii)
the number of “full ratios” in that combined tri-county region to the number of Sena
that collectively were assigned to New York and Westchester Counties in 1894. Th
methodology compared present-day apples to 1894 apples because the territory that
New York, Bronx, and Westchester Counties today is the same territory that contain
York and Westchester Counties in 1894.
83. LATFOR abandoned this methodology in 2002 in favor of separately
the populations of those portions of present-day Bronx County that are west and eas
Bronx River. Instead of combining all of the Bronx with New York and Westcheste
had been done in the past, the Bronx would be divided along the Bronx River, which
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Bronx east of the Bronx River would be combined with Westchester County for pur
determining the size of the Senate.84. Standing alone, the population of Westchester County according to th
Census was just under three full “ratios” (i.e., just under 6% of the total State popul
meaning that Westchester itself would not have been relevant to the Senate size calc
combining Westchester with the area of the Bronx east of the Bronx River pushed th
area over the 6% threshold for the first time. As the 2002 Carvin Memorandum ass
resulted in a net increase in the size of the Senate of two seats. Had this been the on
from methodologies employed in 1972, 1983, and 1992, then the size of the Senate w
been increased to 63 seats in 2002.
85. The second change that LATFOR made in 2002 was to abandon the
Before Rounding Down Method (Method A), and to use, for the first time in over th
the Round Down Before Combining Method (Method B). The 2002 Carvin Memor
not discuss whether to use Method A or Method B with respect to Richmond/Suffol
both methods yielded the same results for that area given the 2000 Census data. Bu
Carvin Memorandum expressly concluded that Method B should be used in Queens
so concluding, the 2002 Carvin Memorandum asserted, without significant analysis,
B “is more faithful to the Constitution” than Method A.
86. Whereas using Method A in connection with the Queens/Nassau com
would have yielded 63 Senate seats in 2002, using Method B yielded 62 Senate seat
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87. Notably, LAFTOR published its 62-seat Senate plan on or about Feb
2002 – several weeks before the 2002 Carvin Memorandum was published. In otheLATFOR did not inform the public of the supposed constitutional rationale for incre
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 opportuni
alternative 62-seat Senate plans before LATFOR decided which 62-seat plan to reco
LATFOR made its final recommendation to the Legislature on April 8, only one mo
revealing the supposed rationale for creating 62 districts.
89. Although the 2002 Carvin Memorandum purported to apply a neutra
analysis, it is now clear that LATFOR’s decision to increase the size of the Senate fr
to 62, but not to 63, was politically motivated.
90. LATFOR’s political motivation in jettisoning decades of precedent w
how to calculate the size of the Senate was revealed in a series of 2001 memoranda
the chief architect of the 2002 plan. LATFOR was compelled to produce these prev
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
Senate Republicans already had decided that they likely would create 62 districts. T
chief architect expressly noted in this memorandum that the Republicans had “wigg
create either a 61-seat or a 62-seat plan without running afoul of the one person, one
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settled by that date, notwithstanding that there had been many internal discussions a
Senate Republicans about the possibility of creating 63 districts. The July 20, 2001Memorandum expressly states (a) that the Republicans “have had numerous discuss
regarding the possibility of the Senate increasing in size to 63”; (b) that the “ultimat
would be “made with political numbers for proposed districts at each size in hand”;
chief architect’s view was that “the only reason to go to 63” districts would be to us
district to “combin[e] politically undesirable areas” in Long Island (emphasis in orig
(d) that a 63rd seat could not be placed anywhere in the Republican-dominated upst
because the 62-seat plan that already had been drawn had purposely drawn those dis
(emphasis in original) – i.e. they were purposefully underpopulated – in order “to av
migration [of a district] downstate,” and that adding a 63rd seat “would exacerbate t
– i.e., make it impossible to avoid giving the 63rd seat to the downstate region witho
a total population deviation in excess of 10%. The July 20, 2001 Memorandum is a
hereto as Exhibit 3.
93. A third internal memorandum December 18, 2001 entitled “The 135”
“December 18, 2001 Memorandum”) is also significant. It confirms that by that dat
longer was any discussion or consideration of a Senate size other than 62 seats, even
LATFOR’s website still indicated to the public as of that date that there would be 6
and LATFOR was still encouraging the public to propose 61-seat plans. This memo
demonstrates that LATFOR was purposefully manipulating various state law apport
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architect believed the one person, one vote principle imposed. The December 18, 2
Memorandum is attached hereto as Exhibit 4.94. Thus, after secretly deciding in or about the summer of 2001 that it w
62 Senate districts, LATFOR nonetheless continued to encourage and accept propos
public for 61-district plans, knowingly misleading the public just as it did again in 2
2012.
95. Indeed, on February 13, 2002 – the day before LAFTOR announced
plan that eventually would become law – LATFOR’s website still said that there wo
districts in the 2002 plan.
96. In sum, there is no question that LATFOR first decided to create a 62
2002 for partisan political reasons, and only then instructed the Senate Majority’s at
concoct a legal justification for doing so.
E. The Legislature’s Decision to Use Both Methods Simultaneously
97. Notwithstanding that the 2002 Carvin Memorandum plainly resulted
partisan political calculations rather than neutral and evenhanded legal analysis, and
notwithstanding that the methodology it recommended was a radical departure from
methodology consistently used by the Legislature in 1972, 1982, and 1992, there is
that the Legislature firmly concluded, by expressly adopting the reasoning in the 20
Memorandum, that the Round Down Before Combining Method (Method B) is “mo
the Constitution” than the Combine Before Rounding Down Method (Method A).
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Senate size should increase from 62 seats to 63 by using both counting methodologi
A and Method B – simultaneously.
99. Given the population figures revealed in the 2010 Census, there are t
where the choice of methodology affects the size of the Senate: Nassau/Queens (wh
combined to compare those counties to 1894 because Nassau did not exist at the tim
Suffolk/Richmond (which must be combined because those counties were combined
Senate district in 1894).
100. Using the Round Down Before Combining Method (Method B) – to
Legislature switched in 2002 because it supposedly “is more faithful to the Constitu
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 Jan
(the “2012 Carvin Memorandum”), the Senate Majority’s attorney – the same attorn
authored the 2002 memorandum – instructed LATFOR to use the Round Down Bef
Combining Method (Method B) with respect to the Nassau/Queens combination, bu
Combine Before Rounding Down Method (Method A) with respect to the Suffolk/R
combination. The 2012 Carvin Memorandum is attached hereto as Exhibit 5.
102. The Legislature has adopted both the conclusion and the rationale in
Carvin Memorandum. LATFOR posted the 2012 Carvin Memorandum on its webs
following explanation:
The State Constitution requires 150 Assembly districts and contains
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By clicking on the hyperlinked words “click here,” a LATFOR website visitor is dir
2012 Carvin Memorandum, with the 2002 Carvin Memorandum attached.
103. The Legislature therefore calculated the size of the new 2012 Senate
different methodologies – including the very methodology that the Legislature expre
in 2002 – within the same reapportionment plan.
104.
Using this unprecedented and illogical mix-and-match formula, the L
determined that the Senate would be increased to 63 seats.
105. The 2012 Carvin Memorandum attempts to mask its internal method
inconsistency. In the table entitled “2010 Senate Size Calculation” that is appended
2012 Carvin Memorandum lists only the combined population, and the number of “
computed from the combined population, of Richmond and Suffolk Counties, rather
the individual populations and the individual number of “full ratios” of those two co
separately (as the 2012 Carvin Memorandum does for every other county that is suf
populous to affect the Senate size).
106. By definition, to list only the combined populations of Richmond and
to use the Combine Before Rounding Down Method (Method A). After all, one can
down the individual “ratios” for those two counties before combining them without
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 Su
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108. Despite the obvious constitutional defects in the formula invented by
order to devise a Senate plan consisting of 63 districts, the Legislature adopted and t
signed a 63-seat plan passed in conformity with LATFOR’s recommendation.
F. The Decision to Use Both Methods Simultaneously Was Political,
Result of any Effort by the Legislature to Apply the Constitution
Consistently or Evenhandedly
109.
The 2012 Carvin Memorandum expressly states that “the proper met
for combining Richmond and Suffolk for purposes of performing the Senate size cal
use the Combine Before Rounding Down Method (Method A).
110. The 2012 Carvin Memorandum offers two ostensible justifications fo
conclusion: (i) that Method A supposedly was used for Richmond/Suffolk “in every
redistricting”; and (ii) that Method A supposedly “reflects the Senate arrangements
existed in 1894.” Both of these ostensible justifications are pretexts, and they betray
Legislature has not made a good-faith effort to apply Section 4 evenhandedly or con
111. First, although it may be true that the Combine Before Rounding Dow
(Method A) was used for the Richmond/Suffolk in 1972, 1982, and 1992, the Legisl
used Method A during those years for Queens/Nassau, which the 2012 Carvin Mem
rejected as precedent for the current treatment of Queens/Nassau. In 2002, the Legi
expressly rejected Method A, concluding that the Round Down Before Combining M
(Method B) “is more faithful to the Constitution.”
112. To be sure, the 2002 Carvin Memorandum did not expressly discuss
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why Method B “is more faithful to the Constitution” with respect to the Queens/Nas
combination but not with respect to the Richmond/Suffolk combination, and no such
exists.
113. It is not true that using Method A for the Richmond/Suffolk combina
for the Queens/Nassau combination, “reflects the Senate arrangements as they existe
with respect to Richmond/Suffolk but not Queens/Nassau. Although the 1894 Consexpressly provides that Richmond and Suffolk Counties initially would share a sing
district, that historical fact does not in any way justify treating the Richmond/Suffol
combination differently from the Queens/Nassau combination. After all, using Met
Queens/Nassau combination, which also constituted a single unit in 1894 – i.e., calc
total population of the area that was Queens in 1894 before rounding down the curre
for that area – similarly “reflects the Senate arrangements as they existed in 1894,” b
has expressly rejected using Method A for the Queens/Nassau combination, and the
has followed its recommendation.
114. The asserted justifications for treating the Richmond/Suffolk combin
differently from Queens/Nassau combination offered in the 2012 Carvin Memorand
pretexts designed to mask the Legislature’s actual motivation in increasing the size
to 63 seats: the desire to engage in severe partisan gerrymandering in an effort to en
Republican Majority to preserve its razor-thin and demography-defying control ove
115. Given New York’s political demographics, the Senate Republicans c
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Republican-dominated districts and overpopulating Democrat-dominated districts to
extent possible.
116. Not surprisingly, the Legislature’s 63-seat plan for 2012 is severely
malapportioned. All of the upstate districts in the plan are significantly underpopul
of the New York City districts in the plan are significantly overpopulated.
117.
This severe malapportionment favors the Republicans, who control mupstate districts, and disfavors the Democrats, who control most of the New York C
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 upst
the New York City region.
119. The Legislature decided to increase the size of the Senate to 63 seats
doing so allowed it to effect a more severe partisan gerrymander than would have be
achievable under a 62-seat plan.
G. By Withholding that It Had Decided to Increase the Size of the SSeats, LATFOR Knowingly Thwarted the Ability of the Public to
Meaningfully In the Redistricting Process
120. LATFOR manipulated the public hearing process in order to deprive
Yorkers of any meaningful opportunity to participate in the reapportionment of the S
121. The 2010 Census data was released in March 2011. Once it received
data, LATFOR had all the information it needed to decide whether Section 4 require
the Senate to be increased from 62 seats to 63.
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solicit input from the public regarding what the plan should look like, and the purpo
post-plan hearings is to solicit input from the public regarding the extent to which L
proposed plan should be reconsidered by the Legislature. After these meetings con
no further opportunity for formal public input concerning legislative redistricting.
123. LATFOR held a number of pre-plan public hearings between July 20
November 2011. The ostensible purpose of these hearings was to afford the public 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
decided to adopt a 63-seat Senate plan in 2012.
125. LATFOR did not announce this decision until January 6, 2012, by w
of the public hearings already had taken place, and several 62-district proposals had
submitted by the public.
126. During the pre-plan hearings, members of the public understandably
comments and suggestions on 62-seat redistricting alternatives.
127. When asked during the hearings whether LATFOR might be conside
increasing the size of the Senate, Senator Nozzolio repeatedly responded by stating
LATFOR would not consider that issue until the public had weighed in on the numb
Senators the public wanted.
128. At the July 19, 2011 public hearing in Syracuse, Senator Nozzolio ex
belief that LATFOR should postpone determining and announcing the number of Se
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129. At the July 20, 2011 hearing in Rochester, anticipating that Senator
Malavé Dilan would repeat his earlier request that LATFOR settle the Senate size is
persons recommending redistricting plans to LATFOR would know how many distr
Senator Nozzolio said:
[T]he New York State Senate is currently at a number of 62 memberand . . . Senator Dilan [is] raising a very thought-provoking question
what will the number of the Senate be? The Constitution and the lawthe state provide for the ability for that number to grow or shrink depending on particular policy questions, and Senator Dilan has raisequestion now twice. I think that it’s important to put out that we certwould welcome, and I frankly don't believe any decision should be mSenator, until at such time as the public has an opportunity to review process and provide us with input. Let the public tell us whether theSenate, which is now at 62 should be changed to another number.
130. Senator Nozzolio made these public statements even though he knew
have known that Section 4 does not allow the size of the Senate to be increased, or n
or wholly based upon public opinion.
131. Senator Nozzolio made these public statements even though he knew
decision had already been made to increase the size of the Senate to 63 seats for part
132. By failing to inform the public of its decision to add a 63rd seat until
were over, LATFOR knowingly ensured that interested citizens would have no mea
opportunity to participate in the Legislature’s redistricting process.
H. The Constitution Prohibits the Legislature From Increasing the
Senate to 63 Seats in 2012
133. Section 4, as interpreted by the courts, prescribes an objective mathem
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134. It is imperative that the mathematical formula prescribed in Section 4
consistently and evenhandedly. Otherwise, Section 4 would present an open invitat
recurring partisan manipulation during every redistricting cycle.
135. Prior to 2002, decades of precedent, expressly blessed by the New Yo
Appeals, established that Method A is to be used.
136.
Even assuming the Legislature had the discretion to jettison this precswitch to Method B in 2002 – notwithstanding that it did so for purely partisan reaso
because of any good-faith or evenhanded reading of Section 4 – the Legislature plai
discretion to use Method B with respect to the Queens/Nassau combination and Met
respect to the Richmond/Nassau combination within the same reapportionment.
137. There is no constitutionally permissible basis for treating the Queens
combination differently from the Richmond/Nassau combination with respect to wh
methodology is used.
138. If Method B were used consistently, the Senate would remain at 62 s
139. If the methodology that was used consistently in 1972, 1982, and 199
in 2012 – treating New York, Bronx, and Westchester as a combined unit, and aggre
using Method A – the Senate would remain at 62 seats.
140. There was no constitutional basis for increasing the size of the Senate
in 2012.
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FIRST CAUSE OF ACTION
(Article III, Section 4 of the New York Constitution)
(Unconsolidated Laws § 4221)
141. Petitioners hereby incorporate each of the foregoing paragraphs as if
forth herein.
142. It is imperative that Section 4 be interpreted clearly and consistently.
143.
Prior to 2002, the Legislature clearly and consistently interpreted Secrequire 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 reapportionmen
145. Section 4 especially forbids the Legislature from doing so when their
motivation is the desire to engage in partisan gerrymandering, not a good-faith effor
the Constitution rationally or consistently.
146. The constitutional violation complained of herein is exacerbated by t
LATFOR failed to inform the public of its decision to increase the size of the Senate
during the public hearing process, thereby effectively depriving the public of its enti
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 th
Constitution rationally, consistently, or evenhandedly.
147. The Legislature decided to apply Method B to Queens/Nassau and M
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149. Petitioners are entitled to a declaratory judgment establishing that Se
forbids New York from increasing the size of its Senate to 63 seats in 2012 and an o
to Unconsolidated Laws § 4221 permanently enjoining Respondents from implemen
seat plan.
WHEREFORE, Petitioners respectfully request that judgment be entered agaRespondents as follows:
a. Declaring that the formula prescribed in Article III, section 4 of the N
Constitution forbids New York from increasing the size of its Senate
2012;
b. Enjoining Respondents from implementing the 63-seat plan enacted b
Legislature; and
c. Awarding such other and further relief as this Court may deem just a
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EXHIBIT 1
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EXHIBIT 2
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EXHIBIT 3
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EXHIBIT 4
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EXHIBIT 5
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