Bay Ridge Community Council, Inc. v. Carey

103 A.D.2d 280, 479 N.Y.S.2d 746, 1984 N.Y. App. Div. LEXIS 19273
CourtAppellate Division of the Supreme Court of the State of New York
DecidedSeptember 17, 1984
StatusPublished
Cited by4 cases

This text of 103 A.D.2d 280 (Bay Ridge Community Council, Inc. v. Carey) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bay Ridge Community Council, Inc. v. Carey, 103 A.D.2d 280, 479 N.Y.S.2d 746, 1984 N.Y. App. Div. LEXIS 19273 (N.Y. Ct. App. 1984).

Opinion

OPINION OF THE COUBT

Per Curiam.

The essential facts of this case are succinctly recited in the memorandum of Justice Adler at Special Term (Bay Ridge Community Council v Carey, 115 Misc 2d 433), and in Flateau v Anderson (537 F Supp 257, app dsmd 458 US 1123). The matter before us is a challenge to the constitutionality of chapter 455 of the Laws of 1982, which reapportioned the Senate and Assembly districts of the State of New York. That section superseded chapter 111 of the Laws of 1982, the challenged section originally before Special Term.

We fully agree with Justice Adler that chapter 455 of the Laws of 1982, as amended, apportioning and distributing the Senate and Assembly districts of the State of New York, complies with those provisions of article III of the New York State Constitution which remain in force and effect (see WMCA, Inc. v Lomenzo, 377 US 633; Matter of Orans, 15 NY2d 339), and is otherwise valid as a matter of law. Therefore, we affirm the resettled judgment and order insofar as appealed from.

On this appeal, the following issues are raised: (1) whether the law apportioning and distributing the Senate and Assembly districts of the State of New York is in violation of section 5 of article III of the New York State Constitution because the Assembly districts are not “in as compact form as practicable”, are not composed of “contiguous territory”, and are not “convenient”; (2) whether the [282]*282law is in violation of the Fourteenth Amendment of the United States Constitution because it invidiously discriminates against a political group and because it impermissibly impairs the voting power of the voters of the community of Bay Ridge and amounts to a partisan political gerrymander; and (3) whether section 5 of article III of the New York State Constitution has otherwise been violated because Hamilton and Fulton Counties are not in the same Assembly district, numerous minor counties (counties which have insufficient population to maintain a full Assembly district) are divided, and because the Legislature, instead of the New York City Council, reapportioned the Assembly districts in Kings County. We address each of these issues seriatim.

Section 5 of article III of the New York State Constitution directs that the counties of the State shall be divided “into assembly districts as nearly equal in number of inhabitants * * * of convenient and contiguous territory in as compact form as practicable”. Initially, we note that appellants have submitted affidavits making numerous unsupported allegations of constitutional violations, together with maps of the challenged districts. These submissions are insufficient for a court to render a finding that the challenged districts are unconstitutional (see Matter of Richardson [Stark], 307 NY 269, 273).

In any event, the law complies with the constitutional requirements of compactness, contiguity, and convenience. Legislative districts need only be as compact as practicable. They need not be drawn in the form of geometric figures or perfect circles (see Matter of Richardson [Stark], supra; Matter of Dowling, 219 NY 44). The Legislature may, at a minimum, take account of existing political subdivision lines, topography, means of transportation and lines of communication without violating the compactness standards (see Matter of Sherrill v O’Brien, 188 NY 185, 207). Where cities in which the population is heavily concentrated are concerned, the requirement of substantial population equality (Reynolds v Sims, 377 US 533; WMCA, Inc. v Lomenzo, supra) will necessitate districts whose boundaries at best are ragged (see Matter of Schneider v Rockefeller, 31 NY2d 420, 429-430).

[283]*283In the case at bar, the challenged districts, both in Kings County and in upstate New York, are subject to the equality of population requirement of Reynolds v Sims (supra). Moreover, it is obvious that the Legislature intended to avoid a total population deviation in excess of 10% between the Assembly district with the largest population and the district with the smallest population, since such a deviation constitutes a prima facie case of discrimination (see Brown v Thomson, 462 US_,_, 103 S Ct 2690, 2696). In addition, Kings County, by virtue of the 1980 census, lost two and one-half Assembly districts, and the Legislature was required to maintain the voting power of minority groups pursuant to the Voting Rights Act of 1965 (US Code, tit 42, § 1973c; see Flateau v Anderson, supra). Hence, the challenged law is in compliance with the “compactness” and “convenience” requirements of section 5 of article III. Since all of the territory in all of the challenged districts is connected, the districts meet the requirements of “contiguity” (see Matter of Schneider v Rockefeller, supra, p 430).

The law is also in compliance with the equal protection clause of the Fourteenth Amendment of the United States Constitution. Contrary to appellants’ contention, there is no evidence that the law invidiously discriminates against any political group (see Gaffney v Cummings, 412 US 735; cf. White v Regester, 412 US 755; Gomillion v Lightfoot, 364 US 339). In fact, State legislative redistricting operates under a more relaxed standard than Congressional redistricting (see Brown v Thomson, supra; Gaffney v Cummings, supra; Mahan v Howell, 410 US 315; cf. Karcher v Daggett, 462 US_, 103 S Ct 2653; Kirkpatrick v Preisler, 394 US 526). The Federal courts have recognized that political considerations cannot be divorced from the State legislative redistricting process (see Gaffney v Cummings, supra [although redistricting of Connecticut Legislature was obviously politically motivated, it was not unconstitutional]; see, also, White v Regester, supra; Whitcomb v Chavis, 403 US 124; Burns v Richardson, 384 US 73). Voter behavior is unpredictable, and no political group has a guaranteed constitutional right to proportional representation in a legislative body (see City of Mobile v Bolden, 446 US 55, 78-80).

[284]*284The claim that the voting power of the voters of the community of Bay Ridge has been impermissibly impaired cannot be sustained. Similar claims have been dismissed by the Federal courts (see United Jewish Organizations v Wilson, 510 F2d 512, affd on other grounds sub nom. United Jewish Organizations v Carey, 430 US 144; see, also, Mirrione v Anderson, 717 F2d 743, in which plaintiff’s complaint, which asserted that the same 1982 Assembly redistricting plan attacked here impermissibly impaired the collective voting power of the voters of Rosedale, Queens, was dismissed for failure to state a claim for which relief could be granted).

Regarding the claim that the law amounts to a partisan political gerrymander, such a claim is nonjusticiable (see, e.g., WMCA, Inc. v Lomenzo, 382 US 4, 5-6 [Harlan, J., concurring]; Cousins v City Council, 466 F2d 830, 844-845, cert den 409 US 893; Wells v Rockefeller, 311 F Supp 48, 52, affd 398 US 901; Koziol v Burkhardt, 51 NJ 412, 415-416). Appellants’ claim that the issue is justiciable by virtue of the decision of the United States Supreme Court in Karcher v Daggett (supra), is incorrect. First, Karcher applies only to Congressional redistricting, not State legislative redistricting (Karcher v Daggett, 462 US_,__, 103 S Ct 2653, 2659, supra).

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103 A.D.2d 280, 479 N.Y.S.2d 746, 1984 N.Y. App. Div. LEXIS 19273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bay-ridge-community-council-inc-v-carey-nyappdiv-1984.