Morris v. Board of Estimate

831 F.2d 384, 1987 U.S. App. LEXIS 13750
CourtCourt of Appeals for the Second Circuit
DecidedOctober 8, 1987
DocketNos. 966, 96 Docket 86-9019, 86-9041 and 86-9059
StatusPublished
Cited by8 cases

This text of 831 F.2d 384 (Morris v. Board of Estimate) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morris v. Board of Estimate, 831 F.2d 384, 1987 U.S. App. LEXIS 13750 (2d Cir. 1987).

Opinions

OAKES, Circuit Judge:

The Board of Estimate is a body of New York City municipal government authorized by chapter 3 of the New York city charter. It is comprised of the mayor, city council president, comptroller, and the five borough presidents of the City of New York, which is to a substantial extent governed by the Board of Estimate. The three citywide officials on the Board are granted two votes each as to non-budgetary matters, while each borough president is granted one vote. As to budget matters, the mayor has no vote but does have a veto power. The Board of Estimate is the only municipal body in New York City government which requires the mayor, the comptroller, the city council president, and the borough presidents to meet regularly and vote together upon issues concerning the governing of New York City. It exclusively determines the use, development, and improvement of city property; approves the standards, magnitude, and final design of capital projects; negotiates and enters into all contracts on behalf of the city; negotiates and approves all franchises granted by the city; grants leases of city property and enters into leases of property for city use; sets water rates and sewer rates in the city; approves or modifies all zoning decisions; and sets tax abatements. The Board’s enormous exclusive powers may be illustrated by saying that it alone may determine whethér and where a toxic waste dump can be located in the city, as we explore later in this opinion.

Besides the Board’s exclusive powers, it has powers acting in conjunction with the New York City Council to recommend and approve the expense budget and the capital budget of the city (without the participation of the mayor), periodically to modify the budgets of the city, to override mayoral vetos of budget items, and to hold hearings on budgetary matters. The Board of Estimate also administers the Bureaus of Franchises and of the Secretary, holds public hearings on matters of city policy when called upon to do so by the mayor or in its discretion for the public interest, holds hearings on tax abatements, and makes recommendations to the mayor or City Council in regard to any matter of city policy. The parties stipulated that the population of the city of New York is 7,071,030, and that the population of Brooklyn is 2,230,936, Queens 1,891,325, Manhattan 1,427,533, the Bronx 1,169,115, and Staten Island 352,121.

Having determined that the Board of Estimate is subject to the “one-person, one-vote” principle, we remanded this case when it first came before us with instructions that the district court begin its task by deciding on an appropriate methodology for determining the degree of malapportionment present. Morris v. Board of Estimate, 707 F.2d 686, 690-91 (2d Cir.1983). In a footnote our opinion noted, “For example, the fact that three members of the Board are elected at large from the entire city raises novel issues as to how an individual voter’s opportunity to elect these members should be assessed in conjunction with his opportunity to elect his borough representative.” Id. at 690 n. 3. The district court, following the principle articulated in Abate v. Mundt, 403 U.S. 182, 185, 91 S.Ct. 1904, 1906, 29 L.Ed.2d 399 (1971), that “electoral apportionment must be based on the general principle of population equality and [that] this [principle] applies to ... local elections,” Morris v. Board of

[386]*386Estimate, 592 F.Supp. 1462, 1466 (E.D.N. Y.1984), determined the maximum deviation from equality, or “overall range,” 1 by taking the sum of the deviation from ideal district population of the most and least populous boroughs. The court refused to modify the Abate methodology by virtue of the presence on the Board of three officials elected at-large, and focused only on the five borough presidents. Measuring from an ideal district population of 1,414,206, the court calculated the deviation from equality thus:

Borough Population Deviation
Brooklyn 2,230,936 -57.7%
Queens 1,891,325 -33.7%
Manhattan 1,427,533 -0.9%
Bronx 1,169,115 +17.4%
Staten Island 352,121 +75.2%

Adding the 57.7% deviation of Brooklyn as the most underrepresented borough to the 75.2% deviation of Staten Island as the most overrepresented borough, the court arrived at a maximum deviation or range of 132.9%. Id. at 1475.

We commence by noting that the district court did not violate what we read as the mandate of this court in declining to consider citywide board members in determining the constitutionality of the present Board. In the first place, what we said earlier was simply that the district court should address the question whether the presence of the three members of the Board who are elected at large from the entire city should make a difference in respect to methodology. The district court did address that question at considerable length and answered it in the negative. The court did so for three reasons which, though briefly summarized here, will be more fully discussed below. The district court argued convenience, mentioning the “demonstrated impatience with mathematical metaphysics” in Mahan v. Howell, 410 U.S. 315, 319 n. 6, 93 S.Ct. 979, 982 n. 6, 35 L.Ed.2d 320, modified on reh’g, 411 U.S. 922, 93 S.Ct. 1475, 36 L.Ed.2d 316 (1973); principle, in that the at-large members represent voters as city residents, giving every voter an equal say in their election, while the borough presidents represent voters in their capacities as residents of a particular borough; and precedent. See 592 F.Supp. at 1466, 1470-75. We turn then to the issues argued on this appeal.

Though two issues concerning the district court’s methodology are closely related, for the sake of clarity we will distinguish them. The first and more basic issue is whether the court correctly adopted the Abate test, which looks only to the relative power of voters to elect representatives, and therefore focuses almost entirely on the simple question of population per representative. The Board strenuously urges that the court should instead have applied the Banzhaf index, to measure the power of voters in the various boroughs to affect the outcome of a Board vote.2 The second issue is whether the court should have included the at-large representatives on The Board in any calculation of voting inequality. Use of the Banzhaf index would require inclusion of the at-large representa[387]*387tives, since the outcome of a Board vote will often turn on how one of the at-large members casts his vote.3 Using the Abate method, however, leaves whether to modify the test so as to include the at-large representatives in calculations of voter inequality as a distinct issue.

Turning first to the more basic of the methodological issues raised here, we hold that the district court properly adopted the Abate theory that what the equal protection clause requires be equalized among voters is their “share” of representatives on the governmental body in question. In the simplest of cases, where each representative has an equal vote (i.e., there is no weighted voting), Abate

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Morris v. Board Of Estimate
831 F.2d 384 (Second Circuit, 1987)

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Bluebook (online)
831 F.2d 384, 1987 U.S. App. LEXIS 13750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morris-v-board-of-estimate-ca2-1987.