Iannucci v. Board of Supervisors

Herlihy, J. P. Appeal from an order invalidating as unconstitutional a plan of permanent apportionment based on weighted voting. [347] In this action the basic issue is whether or not weighted voting may be acceptable as a permanent system of reapportionment. In our opinion weighted voting on the county level, although not as unrepresentative as the historical representation by Town Supervisors, is unconstitutional and the only practical solution to the problem of reapportionment is by the method of district representatives based on population or, perhaps, by the countywide election of Supervisors at Large. Weighted voting as thus far presented to this court (and see Graham v. Board of Supervisors of Erie County, 18 N Y 2d 672, 674) cannot satisfy the mandate of Reynolds v. Sims (377 U. S. 533) of “ one person, one vote ”. The inherent problem of over or under representation is caused not by the amount of the weight involved in a particular ward or town, but by the very existence of the weighting system. While weighted voting cures the previous favoritism in areas of smaller population, it by the very system itself creates new inequities in terms of power. Representatives of the larger districts, because of the weighting of their votes, necessarily have greater influence over the passage of legislation. The result is discrimination against the smaller districts. The suggestion that weighted voting can, by a complicated mathematical ratio of population, be constitutional in some instances is only begging the question and will cause the continued submission of various plans which will only delay the solution of the problem. District representation, based on population while it will when properly drawn apparently ignore historic town lines as political subdivisions, will eliminate inherent evils in weighted voting both in the present time and in the future. It is not a question of percentage or degree but rather of equal representation. Districting results in a relatively simple apportionment, which should be readily adjustable in accordance with any variance discovered with each Federal decennial census. We would further note that with the districting system there should be little difference in the actual number of people in each district. (See Davis v. Board of Supervisors of Clinton County, 28 A D 2d 583 [decided herewith].) In all reapportionment proceedings on the county level the problem will be simplified and adjustable by resorting to a proper district plan, providing for electoral districts of equal population. The problem of reapportionment is one of immediacy (nearly 3 years have passed since the decision of Reynolds v. Sims, supra) and counties presently apportioned by systems other than ‘ ‘ districts ’ ’ should take corrective measures so that a [348] proper reapportionment plan or one of Supervisors at Large may be on the ballot for the elections in 1967. The order should be modified, on the law and the facts, so as to provide that the Board of Supervisors adopt and submit to Special Term a constitutionally valid plan of reapportionment not later than 10 days from the date of entry of the order to be entered hereon, and, as so modified, should be affirmed.