Dobish v. State

New York Supreme Court

Dobish v. State

53 Misc. 2d 732, 279 N.Y.S.2d 565, 1967 N.Y. Misc. LEXIS 1536

CourtNew York Supreme Court

DecidedMay 10, 1967

StatusPublished

Cited by2 cases

This text of 53 Misc. 2d 732 (Dobish v. State) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dobish v. State, 53 Misc. 2d 732, 279 N.Y.S.2d 565, 1967 N.Y. Misc. LEXIS 1536 (N.Y. Super. Ct. 1967).

Pincite

Opinion

Marshall E. Livingston, J.

The plaintiff, a qualified citizen of the Town of Arcadia, brings this action seeking a declaratory judgment that the apportionment of the Board of Supervisors of the County of Wayne is unconstitutional (N. Y. Const., art. I, § 11) and in violation of the Fourteenth Amendment to the Constitution of the United States.

Wayne County, New York, has 15 towns. Each town is represented by one Supervisor. The towns vary in population, accord[733]*733ing to a special census enumeration taken in 1966, from the Town of Huron with 1,570 persons to the Town of Arcadia with a population of 12,544 persons, exclusive of 2,620 duly committed, mentally retarded patients at the Newark State School under the jurisdiction of the New York State Department of Mental Hygiene. For reasons subsequently expressed, these patients are not considered in the population of the Town of Arcadia for the purposes of apportionment under the ‘ ‘ one person, one vote ” principle.

The eight smallest towns in Wayne County represent approximately 30% of the population of the county and constitute a majority of the Board of Supervisors, as it is now organized. It is accordingly held that, under the principles enunciated in Reynolds v. Sims (377 U. S. 533) and Seaman v. Fedourich (16 N Y 2d 94), the Wayne County Board of Supervisors is at present not organized so as to give equal representation on the board to the citizens of the county.

On February 3, 1967, after this action was commenced, the Supervisors tacitly recognized the malapportionment of the board, as alleged in the complaint, by adopting Resolution No. 18, which provided for “ a weighted voting plan ”.

° The board’s weighted voting plan is directly proportional to the population of the several towns based on the 1966 special census, except in the case of the Town of Arcadia from which the Newark State School patient population of 2,620, previously mentioned, has been deleted (see Table I). All but 115 patients in the institution are nonresidents of Wayne County, according to a certification by the director of the school in answer to an inquiry by the court, on stipulation of all counsel. I am persuaded that the board was correct in its decision not to include these patients in the population. In contrast to what was apparently held to be the situation in the Binghamton State Hospital (cf. Seaman v. Fedourich, 16 N Y 2d 94, supra), all of the patients at Newark State School have been duly committed as mental defectives and are ineligible to vote (Election Law, § 152, subd. 6). Furthermore, more than 95% of these patients are nonresidents of the county, and were they to be accorded representation on the “ one person, one vote ” principle, their number alone would in effect disenfranchise the residents of any one of four towns in the county, each of which has a citizen population less than the patient population of the Newark State School.

The following Table I shows in Column “ A ”, the 1966 special census of the towns of the county; Column “ B ”, the weighted vote fixed by the board pursuant to Resolution No. 18; Column [734]*734“ C ”, the proportion of the total weighted vote proposed to be cast by each Supervisor:

The premise of the board appears to be that by allocating votes to each Supervisor in direct proportion to the population of the town he represents, each will then have proportionate and effective voting power, thus complying with the “ one person, one vote ” principle required by Reynolds v. Sims (377 U. S. 533, supra).

It seems appropriate, in a discussion of the basis for any type of apportionment plan, to consider what voting power is in terms of legislative functioning.

Banzhaf in his article, “Weighted Voting Doesn’t Work: A Mathematical Analysis ” (19 Rutgers L. Rev. 317, 331 [1965]), states: ‘ ‘ Since the determination of legislative outcomes is the only legitimate use and purpose of legislative power and since usually an individual legislator can only determine outcomes when the others are closely divided, the appropriate measure of a legislator’s power is simply the number of different situations in which he is able to determine the outcome.”

This definition of legislative or voting power accurately sets forth a logical standard against which various methods can be measured.

The requirements which any definition of voting power must satisfy are said to be as follows (19 Rutgers L. Rev., supra, p. 330): “ In the first place, the definition must provide an objective measure — that is, that any number of qualified observers using it will arrive at the same conclusions concerning the same situation and that it is independent of such things as the personality [735]*735of the representatives, party affiliations, and previous voting records. Secondly, the definition should he believable and reasonable to the average reader and not make use of unreasonable assumptions about the political process * * * Finally, it would seem that the definition should be based only on the realistic and effective use of the voting power — the legislator’s ability to affect the outcome of legislative determinations — and that it yield a system of analysis which can be used to make meaningful calculations in actual legislative situations.” (Italics supplied.)

This analysis of the basic purpose of a weighted vote is fundamental to the problem of equalizing the effective voting power of each Supervisor, whether the ultimate method used be reapportionment through regrouping towns into units having substantially equal population; a weighted voting plan, as proposed here; fractional voting plans; multimember districts; or multimember districts combined with weighted voting (modified weighted voting).

In Town of Greenburgh v. Board of Supervisors of Westchester County (53 Misc 2d 88), decided February 3,1967, Mr. Justice Nolan had a digital computer analysis available of the voting power of the 54 legislators in Westchester County, under a multimember modified weighted voting plan then adopted by the Board of Supervisors of that county (see Table II of that opinion). Since the weighted vote of Yonkers and New Rochelle under the plan was based on the number of registered voters in each ward, instead of the population therein, Judge Nolan disapproved the plan because the citizens of those two cities, which constituted some 33% of the population of Westchester County, did not thereby have “ one person, one vote ” representation.

The computer analysis in that case fortified the Banzhaf premise that effective voting power for each legislator proportional to the population represented is the goal toward which legislative bodies should aspire in order to attain the principle of “ one person, one vote ” now mandated by Reynolds v. Sims (377 U. S. 533, supra).

Accordingly, I undertook to have such an analysis made of the Wayne County plan embodied in Resolution No. 18 of the Board of Supervisors. The analysis was made by the New York Scientific Center, a division of International Business Machines Corporation, on an IBM 360 Computer, Model 40. This analysis (Column “

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