Abate v. Mundt

PETITIONER:Abate
RESPONDENT:Mundt
LOCATION:Barbara James’ apartment

DOCKET NO.: 71
DECIDED BY: Burger Court (1970-1971)
LOWER COURT:

CITATION: 403 US 182 (1971)
ARGUED: Nov 19, 1970
DECIDED: Jun 07, 1971

Facts of the case

Question

Audio Transcription for Oral Argument – November 19, 1970 in Abate v. Mundt

Warren E. Burger:

— in number 71, Abate against Mundt.

Mr. Barone, you may proceed whenever you’re ready.

Frank P. Barone:

Mr. Chief Justice and may it please the Court.

Rockland County is located in the New York City Metropolitan area approximately 30 miles from New York City.

Until a decade ago, it was a very small suburban community that is until the development of the New York State through it where upon it experienced rapid if not phenomenal growth.

It consists of five towns and has been traditionally governed by five men board of supervisors, each supervisor being elected by one of the towns comprising the copy without regard to population.

In 1964, this Court rendered a historic decision in the case of Reynolds against Sims.

And in 1965, a resident of Rockland County commenced an action in the New York State Supreme Court to compel the Rockland County Board of Supervisors to reapportion themselves in a manner more consistent with that decision.

The New York State Supreme Court referred that matter to the United States District Court for the Southern District of New York.

And as a result, in 1966, the board of supervisors of the County of Rockland were directed to reapportion the County of Rockland in accordance with the mandates of this Court and the Fourteenth Amendment of the United States Constitution.

The District Court further directed that a plan of reapportionment be placed upon the ballot for the general election of November 1966 for referendum.

This plan was rejected as were two subsequent plans.

In 1968, a taxpayer’s action was commenced by Samuel J. Abate, one of the petitioners herein, to have the County of Rockland reapportion itself in accordance with the constitutional mandates of this Honorable Court.

After several motions and hearings, the respondents herein were directed to serve an answer.

The respondent simultaneously moved in the New York State Supreme Court for summary judgment requesting that the court direct implementation of a local law providing for weighted voting without referendum.

The plan for weighted voting was rejected by the court and the respondents herein were directed to present to the court a proposed plan of reapportionment with all deliberate speed.

The board of supervisors had previous this point appointed a sub-committee of the charter commission and the charter commission — the sub-committee of the charter commission recommended to the board a single-member district plan which was rejected by the board.

The board subsequently had recommended to it a multi-member district plan by the sub-committee of the charter commission and that multi-member district plan was presented to the court.

The petitioners herein objected to the proposed multi-member district on several grounds and further sought to submit for the court’s approval.

A single-member district plan which was considered to be more in keeping with the decisions of this Honorable Court, such presentation was not committed by the New York State Supreme Court and the court approved the multi-member district plan submitted by the board of supervisors to respondents herein.

Appeals were taken to the Appellate Division in the Second Department in the State of New York and the decision of the lower court was affirmed with the dissent by the late Justice Beldock.

A subsequent appeal was taken to the New York States Court of Appeals where again the lower courts decision was affirmed with the dissent by Chief Judge Fuld.

Subsequently, permission for certiorari was granted by this Honorable Court.

There are there petitioners in this proceeding and by special permission of this Court, all three have been granted permission to appear today and orally argue this course.

I should like to tell the Court that there will be no repetition of argument by counsel in order to save the time of this Court.

We sincerely believe that this is the only fashion in which this matter could be properly laid before this Court.

I have been chosen to make the opening statement and so I give you some of the history of this matter and will also outline for you some of the arguments that counsel will make.

Counsel will argue that the multi-member district plan does not meet the requirements of equal representation of the Fourteenth Amendment of the Constitution of United States as such requirements have been mandated by this Court.

Counsel will show that the respondents have failed to make the good-faith effort which is required that a multi-member district plan is unconstitutional if its district lines are static but its population is subject to change.

That a single-member district plan does not meet the requirements of the one man, one vote doctrine.

Frank P. Barone:

And that the standards of equal representation as mandated by this Court apply equally to all levels of government, and that multi-member districts in the County of Rockland cannot possibly meet the standards.

According to —

Potter Stewart:

And that is according to your theory, I think I understand it?

Frank P. Barone:

Yes.

Potter Stewart:

It’s absolutely impossible for any multi-member district plan to meet what you submit are the constitutional requirements.

Is that correct?

Frank P. Barone:

Yes, Mr. Justice. Our opposition is that every decision of this Court has been consistent.

Every decision of this Court in spite of the Reynolds decision which indicated that certain de minimis situations were unavoidable on certain situations that regardless of that, the requirement is that there must be an absolute de minimis and if one plan can achieve, if you will, a more minimal population variation, that is the plan which must be accepted.

Potter Stewart:

In other words the, I’m looking now at page 4 of the brief of petitioners June Molof and others which as I understand it sets out the present plan and indicates the population of each one of the district.

And in so far, that must you begin cutting representative in half or something, that’s the best that can be done with the multi-member plan, isn’t it?

Frank P. Barone:

That is correct sir.

Potter Stewart:

And you say that’s insufficient?

Frank P. Barone:

Yes.

We say that a more minimal population variance or disparity can be achieved by use of the single-member district plan.

Potter Stewart:

Right.

You’re not taking one of the member district judge such that?

Frank P. Barone:

No, sir.

Multi-member districts, floterial districts, single-member districts have all been approved as being constitutionally proper.

It is simply a matter of meeting the requirements of the de minimis rule set forth in Reynolds which must be adhered to and the plan which bested here is to that must be the plan that is adopted in order to meet the requirements of the one man, one vote doctrine.

Warren E. Burger:

In — while you’re interrupted here now, Mr. Barone.

Is my calculation correct that the difference per capita population per legislature — legislator is from the maximum to the minimum only 598 and around figure 600 variation?

It is the lowest being 11,577 per —

Frank P. Barone:

Yes.

Warren E. Burger:

legislator and the highest being 12,175?

Frank P. Barone:

No, the highest —

Warren E. Burger:

That’s the highest?

Frank P. Barone:

No, the highest would be 13,000 Your Honor —

Warren E. Burger:

13,000 in Orangetown?

Frank P. Barone:

— in Orangetown.

Warren E. Burger:

So that it’s a little over 600 variations from the minimum.

Frank P. Barone:

Yes.

Warren E. Burger:

Well, how fast — how rapid is the population change in every given district?

Frank P. Barone:

Sir, the 1969 census — special census figures which were used for this calculation had since been superseded by the 1970 census figures which I do not have.

I believe that counsel for respondents has these figures and will undoubtedly bring them before the Court.

However, the population variance, the change in population, I respectfully submit will in fact not make any difference in the argument that petitioners make since the population variance can bring the difference to a point higher or lower as the population increases.

So that we must deal I believe in this matter and counsel will point this out.

We must deal with the two basic requirements that I believe this Court has mandated in the choosing of a reapportionment plan and that is, that the plan was determined after good-faith effort and secondly, that it achieves the minimal population disparity possible.

And if Your Honor please, with the 13,000 down to the 11,000 creating an under representation in Orangetown of 7.1% and an over representation in Clarkstown of 4.8%, the entitled disparity would be 11.9% which I believe — which we believe to be a population variance not in keeping with requirements of this Court and its decision.

Warren E. Burger:

Is the — is this dynamic growth that you were describing continuing or the projections that it will continue?

Frank P. Barone:

Yes.

Warren E. Burger:

Eighty some thousand increase in nine years?

Frank P. Barone:

Yes, it’s even increasing at a more phenomenal rate than that Your Honor and I don’t have the exact figures but I’m sure that counsel will indicate that the growth is not only phenomenal but yearly increase — the rate increases yearly.

Warren E. Burger:

Well, then a plan that was acceptable at the beginning of one year might not be acceptable by the end of that calendar year, isn’t that true?

Frank P. Barone:

Yes, it certainly might not be acceptable at the end of that calendar year.

That is essentially the reason we are here because we believe that a single-member district which does not have static lines as our multi-member district does can best be moved or be flexible enough so that in the determining representation, the ability to determine that representation is inherent in the plan which it is not in the multi-member district plan which utilizes town lines as the boundary for the district.

As I say, the disparity in the County of Rockland at the present moment is 11.9.

The cases decided by this Court have clearly indicated that a good-faith effort must be made.

Secondly, that if there is going to be a population variance, a disparity, that there must be some articulate reason set forth to show that the policy of the State clearly indicates that such a population variance will be tolerated by reason of state policy.

There has been no state policy clearly enunciated by the State of New York permitting such population variances.

It is respectfully submitted that the decisions in this Court as I said moment ago are absolutely consistent and that population variances will not be tolerated.

Whatever the plan, unless it can be shown that there is a clear rational state policy and further that a good-faith effort has been made.

The inescapable conclusion must be that whenever it is shown, that another plan of reapportionment can reduce the population variance it must be adopted in lieu of the existing plan no matter how minimal the population deviation is under the existing plan.

What is it the attitude of, Mr. Barone of your clients to the Molof plan?

Frank P. Barone:

I beg your pardon, sir?

The attitude to which plan?

I’m sorry I didn’t hear you.

To the — is it Molof?

Frank P. Barone:

The Molof petitioners, June Molof, Mindy Baker, etcetera entered this matter as intervenors in the lower court and we substantially take the same position that the only plan which is workable in the County of Rockland is a single-member district plan.

Well, that isn’t precisely my question.

My question is, would your clients in the posture of the case today support the Molof plan?

Frank P. Barone:

Yes.

Alright.

Even though it has a variation of 3.5%?

Frank P. Barone:

Yes.

Since the Molof plan as you referred to it Your Honor has a population deviation of less than the 11.9 presently in existence.

Well, do you really mean that?

If it were 7.6, would you be supporting it?

Frank P. Barone:

I think Your Honor, we must support a plan which has been made on a good faith — a good-faith effort has been made in its implementation, and secondly, that the population variance must be the minimum which can possibly be had under the circumstances.

And a multi-member district plan using town lines as static boundaries cannot possibly be flexible enough to move with the phenomenal growth which this county expects and which it has had.

John M. Harlan:

Why do you suggest it wasn’t a good-faith effort?

Frank P. Barone:

As I pointed out a moment ago, Mr. Justice Harlan, the County of Rockland had appointed a sub-committee — had appointed a charter commission and there was a sub-committee and that sub-committee did suggest a single-member plan that was rejected by the board of supervisors.

The board of supervisors in lieu of that implemented the second recommendation which is a multi-member district plan utilizing town lines as static boundaries thereby and the fact incidentally that the supervisors would automatically be members of the county legislature, thereby, perpetuating themselves.

Counsel for — counsel — my red light’s come on and other counsel in this matter for petitioners will carry this point forward.

Thank you gentlemen.

Warren E. Burger:

Mrs. Ulman.

Doris Friedman Ulman:

May it please the Court.

If I may, I’d like to clarify a few points that were just — that have just been made.

In answer to Mr. Justice Stewart’s question about multi-member districts for Rockland County.

We believe that we — it is possible to have multi-member districts in Rockland County provided —

Potter Stewart:

Not using town lines.

Doris Friedman Ulman:

Not using town lines and not using static boundaries.

Potter Stewart:

Right.

Doris Friedman Ulman:

Secondly, —

Warren E. Burger:

Can you define this to what you —

Doris Friedman Ulman:

I beg your pardon?

Warren E. Burger:

— mean by a static boundary?

Static for how long?

Doris Friedman Ulman:

A static boundary is which is not subject to change.

In other words, the reasons for the present plan are to retain town boundaries because of the interrelationship between county and town government.

Now, because of this, the boundary lines could not change.

Doris Friedman Ulman:

They would have to remain the same throughout the whole plan.

Otherwise, you would not have your county rep — your town representation on the county level.

And what we mean by static boundaries is that these boundary lines can never change.

Whereas, the population within each town will be changing and incidentally, the projected figures for 1980, I believe were about 300,000 for the county.

Mr. Cornell in his brief projected, I believe to 370,000 by 1985.

Warren E. Burger:

If a plan reflects representation, it is substantially representative and equal here a variation of a very modest amount is it seems to meet per capita.

Doris Friedman Ulman:

Yes.

Warren E. Burger:

Why should we become so concerned about how that’s achieved where the lines are whether they’re static or whether they’re changed every two years or whatever?

Doris Friedman Ulman:

Well, we have in our brief set forth the percentage deviations that would have occurred.

If this plan had been in effect since 1950, and they were six federal census taken between 1950 and 1969, of those six years, four — during four of those years, we would have reached a deviation in excess of 20%.

As a matter of fact, as recently as 1966, we would have had a deviation of 26% between the highest and the lowest population for legislator.

Under the present multi-member plan carried to it its extreme, if we follow the planning board projections for 1980 of 300,000 we will have a deviation of 52%.

And if I may refer to a footnote in the dissent of Chief Judge Fuld of the Court of Appeals, he said in example in where we could have a difference of 99.96%.

I’m not saying it’s going to go to 99%.

But I do say that at any given point, and the census are taking regularly in Rockland right now.

Because of its excessive growth, that at any point the deviation could be 6%, it could be 50% and we do not believe that a plan that has this kind of possibility for huge disparities should be — should be accepted as a permanent plan of reapportionment because truthfully, if next year it goes up to 25%, we’ll be in court again.

And we do not think that this is a good basis, a sound basis for a permanently apportionment plan.

We’re not claiming that multi — that all multi-member district plans are unconstitutional.

But Mrs. Ulman —

Doris Friedman Ulman:

Yes?

— aren’t you, I take it one of your points is that in drawing in a multi-member district, the number of representatives that that multi-member district is entitled to is not just a multiple of the base population figure?

Doris Friedman Ulman:

Yes, it is.

That’s how we get our discrepancies.

But I thought one of your points was that, in this case, that a multi-member district is really overrepresented is a sign that representatives — the number of representatives which is just a pure share of multiple of the base population figure?

Doris Friedman Ulman:

No, I don’t think we presented that argument here.

What we did say was that because we are faced with the base population being the size of the smallest town, in this case the only point.

Each town being a multiple of that number brings us to our deviation.

In other words —

Let’s just — let’s assume the multi-member district here, the system came out with a 1% deviation or half of 1% deviation and was as close to equalities you could possibly get.

You would accept it?

Doris Friedman Ulman:

No, we cannot accept the — we cannot accept it as a permanent plan.

Well —

Doris Friedman Ulman:

For two reasons.

Number one, the static boundaries.

Number two, we do not believe the good-faith effort has been made.

But you don’t attack the idea of assigning to a multi-member district?

That number of representative which is just a multiple of the base —

Doris Friedman Ulman:

No, we do not.

— as a present figure.

Doris Friedman Ulman:

No, we do not.

We only object to it as it applies to Rockland County.

You don’t buy the notion then that a multi-member district is overrepresented?

Doris Friedman Ulman:

No, I do not.

If that was the defense here?

Doris Friedman Ulman:

No, I do not.

However, that claim was made in New York Court of Appeals.

Doris Friedman Ulman:

It was made —

Potter Stewart:

But it is not made here.

Doris Friedman Ulman:

Not made here, right.

We do not feel that the County of Rockland has made a good faith-effort to achieve the precise mathematical equality which was required by this Court in Kirkpatrick against Preisler.

Excuse me, Mrs. Ulman.

Doris Friedman Ulman:

Yes, sir.

Do I understand that even if you had virtually precise mathematical equality using town lines —

Doris Friedman Ulman:

Yes.

— even if that were achieved, would you still argue that this would not satisfy —

Doris Friedman Ulman:

We argue —

— constitutional terms?

Doris Friedman Ulman:

We’re not arguing this case on the basis of numbers.

We’re arguing it —

Well then, then if you’re not that in fact you are essentially attacking the legitimacy of any reapportionment plan that uses fixed town lines as a basis for opposing representation.

Doris Friedman Ulman:

That’s correct.

Well, how can you do that consistently where the suggestion in Reynolds and Sims that it is appropriate to use town and county wise?

Doris Friedman Ulman:

For the fact that Reynolds said that population should be the controlling factor in deciding a reapportionment plan.

My point, my hypothetical was that you would come out with the basic quality that (Voice Overlap).

Doris Friedman Ulman:

Yes.

Well, basic — Right, for this year it would be an equal plan.

Next year, it might not which is the — this is the basis of our argument that whereas today, we may have a 0.5% deviation and it might pass master under the plan, under the cases.

However, by the —

You’re saying that that would be impossible to maintain equality of certain things happen by just designing different members of representatives —

Doris Friedman Ulman:

That’s correct.

— by the district, unless, you went to fractional voting?

Doris Friedman Ulman:

Yes.

Now, is fractional voting then rejected in the New York Court?

Doris Friedman Ulman:

As I know it has — we’ve had weighted voting which was rejected by the lower court as it applies to Rockland.

We have never had any other plan.

Do you accept the weighted voting or fractional voting or do you reject it?

Doris Friedman Ulman:

No, I do not.

I reject it.

Why?

Doris Friedman Ulman:

I believe that for Rockland, because of its size, because of its growth, a single-member plan is the only plan that can be valid representative and practical.

I —

Every district should have at least one vote not a half vote.

Doris Friedman Ulman:

Yes.

Although they would have a man there — they would have a man there.

Doris Friedman Ulman:

Well, they have had a man there.

Right.

Well, they have a man there with a —

Doris Friedman Ulman:

Would have a vote.

Whatever 24.50 can have plus his half vote.

Doris Friedman Ulman:

Yes.

Doris Friedman Ulman:

And actually —

In the district we’re getting some that don’t have any vote.

Doris Friedman Ulman:

I beg your pardon?

We’re getting someone in the Congress who don’t have any vote.

Doris Friedman Ulman:

We do not feel that Rockland is capable of having equal representation without single-member districts.

Mrs. Ulman, you made mention a minute ago about a permanent plan.

Is any reapportionment plan permanent?

Doris Friedman Ulman:

I believe so.

I believe that it is permanent subject to changes of district lines as population changes.

Even a single-member district plan will not — you won’t have the same districts year after year.

However, because they are not static lines, you can shift your lines so as to take care of the population increases or shifts or whatever they may be.

Another advantage of single-member districts of course is that the legislature would not become unwieldy as it can under this multi-member plan.

Assuming that the population of Stony Point for example were to remain fairly static, and the population of Ramapo which is our largest town continues to increase.

We can have as many as 20-25 even more legislators in a county, the size of Rockland and we don’t think that would make a very workable situation.

As a matter of fact, as a practical matter, many people feel that the present 18 that we have is not very workable, too large.

Basically, we don’t think that the county made good-faith effort because they accepted as their basic premise the fact that they should be town representation on the county level.

Because of that, we have the town boundary lines.

The towns and the county of course do have interrelated functions.

However, the plan itself does not provide for town representation on the county level.

People who are elected within the towns have no relationship whatsoever to town government.

They are in effect representing the people within their district as a single-member district legislator would.

The only one who would have liaison of course is the town supervisor who may be elected to the county legislature.

But it’s only one vote out of 18 and he really does not have the ability to influence legislation without one vote with regard to his town.

Furthermore, we feel that there is no need for town representation on the county level.

Rockland is no longer a small rural community.

It has grown from a 137,000 in 1960 to, I believe 228,000 in 1970.

It has — it offers services in the area of air and water pollution now, mental health welfare help, and so on.

Potter Stewart:

What is the — if you can say without mentioning names of people I notice in that.

What are the basic political forces that work here that are causing this controversy.

Is it the matter — is it something like that Stony Point can join, example with Clarkstown and Orangetown to get the majority or is there some sort of maneuvering here that you originally politically object to?

Doris Friedman Ulman:

Originally, when this plan was put forth it was created by the board of supervisors which was the five-man board on the county legislature who were also supervisors in their own towns.

The purpose of the plan as I see it was to maintain their individual parochial interests within the county legislature.

They wanted to retain some kind of town control for their own political means whatever they were.

As it turns out, the supervisor in one of the towns, Ramapo for example, does not even seat on the county legislature.

He never ran for the county legislature.

So if we’re going to accept the county’s arguments in favor of town representation, Ramapo the most populous town has no representation on the county level.

Potter Stewart:

Well, you got six —

Doris Friedman Ulman:

You have six representatives —

Potter Stewart:

— reps from Ramapo.

Doris Friedman Ulman:

Yes, from Ramapo representing the people within the district of Ramapo.

There is no liaison between the town government however and the county government.

In other words, no one on the town level knows what’s going on in the county and no one in the county will carry forward any basic plans that have been proposed by the town government.

This is what I mean by no representation of the town itself.

Potter Stewart:

I see, of the town official.

Doris Friedman Ulman:

Right.

Potter Stewart:

Of the town official.

But the — as I say, perhaps it’s a difficult question to answer, perhaps you prefer not to answer it but I wondered if there were some sort of leverage or something in the present system that you basically have political objection to?

Doris Friedman Ulman:

In the present system, I really could not say.

I have no —

Potter Stewart:

You rely of course just on fourth grade arithmetic.

But I wondered what this controversy is really about?

Doris Friedman Ulman:

No.

We rely on good-faith effort.

We don’t believe that the arithmetic is as important as the effort that has not been made by the county to maintain equal representation.

As I say, I am not concern that last year, it was 11.9%.

This year, I believe its 8%.

I’m more concerned that the effort of the county to achieve equal representation was not made.

And I believe that this was mandated in Kirkpatrick.

It follows the “as nearly as is practicable” rule of Wesberry which was cited by Reynolds in extending the Wesberry rule to state government.

It was again cited in Avery relating to county government and the whole projection as a matter of fact was set fort in the recent Hadley case where Wesberry, Reynolds, and Avery were cited.

Doris Friedman Ulman:

We believe Kirkpatrick —

Potter Stewart:

If I’m not mistaken, your red light flash —

Doris Friedman Ulman:

Yes, if I may just finish this.

Potter Stewart:

— you’re answering my question. I didn’t want you to waste your time.

Doris Friedman Ulman:

I believe that the Kirkpatrick reasoning of good-faith effort has to apply to all these cases because if it elucidates Wesberry it must follow through into the cases the followed it.

Warren E. Burger:

I wonder if your proposal, your plan takes into account the difference in the basic functions of county governance as compared with basic functions of town government.

Doris Friedman Ulman:

We feel —

Warren E. Burger:

You seem to treat them as though they’re just fungible items town and county?

Doris Friedman Ulman:

No, if I may so.

The math that we presented to the Court of Appeals, we presented a single-member district matter where we make — we try to make a good-faith effort at position at the same time retaining the cohesiveness of villages and town lines wherever possible.

We believe the interests of a village for example are much more cohesive than the interests of a town which at this stage of the game, most of the logic towns have such varying interests.

And we feel that the effort can be made to retain certain boundaries while at the same making the effort for equal representation.

Thank you very much.

Warren E. Burger:

Mr. Cornell.

J. Martin Cornell:

Mr. Chief Justice and may it please the Court.

The only issue involve in this case is a question of numbers. Rockland County is a relatively small county and politically it’s a swing county.

It’s sometimes a democratic and it’s sometimes as republic.

The board of supervisors consisting of the five supervisors originally was a democratically controlled board and they devise this plan of reapportionment and after the last selection of the board became or the new legislative body became republicans so that politics really is not involved in this case since it swings back and forth.

The original —

This isn’t anything like an effort of some reform group or movement to try to get rid of the professional politicians or anything like that.

J. Martin Cornell:

I don’t think that that is in the case at all, Your Honor because —

Just a matter of the simple mathematics?

J. Martin Cornell:

That’s correct.

Philosophically.

J. Martin Cornell:

The original board of supervisors felt that it was important to maintain a voice on the county level of government from the towns and that’s what brought about this type of multi-member district plan and that’s really the only thing that’s involved here.

Also, it was felt that there were certain towns like the smallest town, Town of Stony Point that was somewhat isolated from the other towns which are large and they wanted to have a voice of their own.

They didn’t want to be amalgamated with a not a larger area and perhaps ease that type of identity which that community had had over the many years.

So what we’re talking about really is numbers here.

It is our position that the plan which was devise complies with the rule which was set down in Reynolds versus Sims and apply to local governments in Avery versus Midland County which requires that the population be substantially equal or in other terms as was used that as nearly as practical — practicable the district’s view of equal population and we feel that we have actually met that test.

Now, I am set forth in appendix A-2 of my brief a complete breakdown of how these figures operate and at the present time, based upon the 1969 census, the population variation which is the largest is in the town of Orangetown where the deviation is 7.1% underrepresented and then the town of Clarkstown that’s 4.8% overrepresented making a spread of 11.9% from the smallest to the largest.

J. Martin Cornell:

Now —

As of 1969 but not true as of 1970, is that right?

J. Martin Cornell:

That’s correct.

As of 1970 and these figures are not before the court because these figures are very recent, the 1970 census has reduced these population disparity so that the town of Orangetown which did have a 7.1% under representation, now is underrepresented by 4.7%.

The town of Clarkstown which had a 4.8% variation now has a 3.2% variation.

The town of Ramapo has a 0% deviation that hits it right on the nose.

Haverstraw has a 0.8% variation at the present time and that the Town of Stony Point, it changes from 0.3% to 1.1%.

Now, the spread between the largest and the smallest now is 7.9% so that the deviation between these two smallest and largest of 7.1%.

Now in terms of absolute population, this amounts to 1,017 people.

If you take the town — Orangetown which has a deviation of 4.7% to bring that into line, you would have to shift the lines around some 400 or 500 people which we feel is unrealistic because in fact it means that you may have to cut a district line down somebody’s backyard of even to an apartment building to pick up that number of people.

And I think that one of the factors that’s extremely important here is to recognize that when you talk about percentage deviations, you must consider the size of the district which is involved.

Now for example in Wells versus Rockefeller involving the State of New York which was approved by this Court in May, the new districting plan on the congressional level.

The average population for the congressional district in New York which is approved was 490,324.

Now 1% deviation in the congressional district would amount to an absolute population of 4,000, a little over 4,000 people.

Now, it’s one thing to shift to district lines around to pick up or exclude 4,000 people.

But a 1% deviation in Rockland County amounts to 1% of the main population of 12,000 or approximately a 121 people.

And it is impractical and unrealistic to consider a necessity of shifting or moving lines or adjusting legislators to pick up or exclude a 121 people to provide for 1% deviation of more.

Therefore, it is our position that you must look at the size of the district in relation to an analysis of percentage deviations so that it can be a practical application of rule.

I would also like to point out that the question which was raised in the Hadley case involving the trustees in the community college which was not approve by this Court was a different type of situation.

There you had a built-in bias in favor of the smaller districts.

There were six trustees that were elected and the larger district would only get three trustees if they were from 50% to 60% of the school enumeration in that case.

And this Court said in that case that you are not reaching the question as to whether or not there is equal apportionment of trustees among a limited number of component districts.

And you stated that he have said before that mathematical exactitude is not required but a plan that does not automatically discriminate in favor or certain districts is and in that case, that’s exactly what there was.

There was a built-in bias and an automatic discrimination against the larger districts.

There’s a built-in bias in favor of the smaller districts.

That problem is not found in this case.

In this case, we merely have a situation where there were equal member districts — multi-member districts and there is no built-in bias that’s in favor of the smaller or the larger districts.

There was reliance by the petitioner here upon Kirkpatrick versus Preisler and Wells versus Rockefeller.

These were both congressional cases and in the Wells versus Rockefeller case, there was a rejection of a maximum population spread between the highest and the lowest of approximately 13%.

In the Kirkpatrick case involving the congressional districts in Missouri, there was a rejection of a spread of approximately 6% between the highest and lowest.

J. Martin Cornell:

Now, it is our position that you cannot on a wholesale basis take these percentage deviations that may not be acceptable on a congressional level and transpose them down onto smaller districts where there is smaller populations involved.

Also, I think the facts in both of those cases are distinguishable.

In Wells versus Rockefeller, we had a situation where the State of New York admitted that there was an attempt to provide equal population for sub-districts and that the congressional districts were then carved out of these regional districts within the State and the record shows that the State admits that there was not an effort really to fine home the district lines on the congressional level.

In the Missouri case, there are also indications that, number one there was not a proper census data that was made for determining the district lines.

And also there is a clear admission in that case, that merely by shifting several counties around that they could have provided for a more equal population in those congressional districts.

We don’t have that situation in this case at all.

The town lines have been used as the district lines and the legislators have been allocated to the towns in accordance with the population and as I say the population deviation is extremely minimal and there is no way that you could arrive at a lesser population deviation if you would hear the town lines.

This is the only way that it can be done.

Now, Chief Judge Fuld in the Court of Appeals dissented.

And he asked me when I argued that case off the bench whether I wasn’t concerned about the future population changes and whether or not this plan might depending upon how the figures came out subsequently result in a more substantial deviation.

Before I had a chance to answer the question, Judge Breitel said yes but the figures might get better.

And that’s exactly what happened here.

So I think that the argument that he relies upon his dissent has been undercut by what actually has happened here.

Any plan whether it’s a single-member district plan or a multi-member district plan as soon as the population changes whether it be the next year or thereafter, there may have to be some adjustment to account for the changes in population.

As a matter of fact, in this case, the population figures that resulted in 1970 improved the situations, so the population deviation now is as low as I mentioned before 7.9%.

So I think the reasoning that Judge Fuld set forth in his dissenting opinion cannot be upheld based upon actually what happened.

Is there — do I understand there’s a census or at least a count of the population of Rockland County every year?

J. Martin Cornell:

For purposes of securing additional state aid on a local level, it’s frequently is advisable if a population and a growing to have a census taken to determine what the population is.

They do it every three years.

Every three years.

The county itself does it?

J. Martin Cornell:

No, it’s done by the Bureau of Census in Washington.

The Federal Bureau of Census?

J. Martin Cornell:

Federal Bureau of Census.

And I suppose if three years from now, that census showed a great dislocation.

There could, any plaintiff could come in and say it’s a constitutional required you’re not reapportioned.

J. Martin Cornell:

Precisely, if the population figure show —

That’s true with any plan.

J. Martin Cornell:

It’s true of any plan.

It’s true of a single-member district plan, you have to re-draw district plans and in a multi-member district plan, if you have this problem, you might then consider the possibility if there was substantial deviations of providing for fractional vote that would be spread among those legislators.

J. Martin Cornell:

It’s just a possibility but there are number of things that could be done.

But any case, if there was a population change, and if the deviation was substantial then of course the then legislation would have to take the necessary steps to rectify that deviation.

There is a whole process of — I recommend to stop and get away from.

J. Martin Cornell:

Yes, Your Honor.

What was the basis for — was it a judicial rejection of weighted or fractional voting in this case or was it by the commissioner or by the people or both?

J. Martin Cornell:

The people of Rockland County had two referendums.

Initially, they had a referendum on a plan which is almost identical with this plan and they rejected it.

About seven months later, there was a second referendum that had this plan plus a single-member district plan which is the plan which the petitioners were asking for and the voters rejected both of those.

Then the Court was asked on a temporary basis to impose a weighted voting plan until a permanent plan could be devised because the voters kept rejecting everything that was presented to them.

The Court said no that they felt it a weighted voting plan in this county was not feasible and I agree with —

Not feasible, why is that?

J. Martin Cornell:

Well, the reason is that Rockland County if it’s analyzed mathematically, the larger towns because of their size would be in a position to nullify any vote or any vote that would be accorded to the smaller town because it is such a small town.

Well, that’s so onto this plan, isn’t it?

J. Martin Cornell:

No, because here you have multi-member districts whereby you have —

Have other districts are all in town.

J. Martin Cornell:

Yes, but you have 18 bodies on the legislature.

If you had one body with six votes, unless —

I’ll put it this way.

Assume the population changes so that in order to have each town represented, you must have less than one vote assigned to some town.

That wouldn’t raise the problem here talking about then you’d still have it, would it?

J. Martin Cornell:

Well, the way the plan would function would be that you would always give one legislator to the smallest town.

But just with the half of (Inaudible) or something?

J. Martin Cornell:

Well, no.

Actually, the way I devise this plan was that you start off by giving the smallest town one representative.

Yes.

J. Martin Cornell:

And then you divide the population of the smallest town into the others to generate the proper number of legislator’s fee of the town.

So that what fluctuates is the number of legislators.

I know but I gather the argument on the other side was that technique theoretically could result in very wide — much wider variation and population change is great.

J. Martin Cornell:

Yes, if it did, of course it had to change the plan.

Well, are you — have sort of started with the one full vote, you just start with the half vote.

J. Martin Cornell:

Correct.

In other words, some mechanism would have to be devised to provide for that deviation.

I think it’s important in this reapportionment case to recognize what’s involved here between town and county government because this is really the stimulus for this type of plan.

In the State of New York, county governments in the past have been run by the supervisors who are the chief executive officers in the towns within the county.

There was never any legislative body on the county level that was directly elected.

The town selected a chief executive officer who served on the county border supervisors and actually an ex-officio capacity and would run the county government.

Therefore, the towns had a direct voice in the operation of county government.

And on the county level, there are a number of functions of county government which can also be performed on the town level.

And the desirability of having an interrelationship between a town and county government, in the opinion of the board of supervisors was to provide for the conduct of business on this countywide basis so that there would be an interrelationship between the operation of both county and town government.

For example, there is a large county sewer district in the County of Rockland which has a sewer plant and sewer lines which ties indirectly with lateral lines in the towns so that this function of providing sewer service is directly interrelated between town and county government.

The county has a Civil Service Department which administers the civil service on the town level.

There is a very direct physical interrelationship between the town and county governments.

The towns assess the real property.

The towns adopt their budget and then the towns transmit the amount of money to be raised by taxes to the county level and the county legislature then levies the tax and directs the town receiver of taxes to collect the tax.

And then if their moneys are not paid as required it is then sent back to the county to collect the delinquent taxes so that this is a very direct type or interrelationship between the town and county government which has grown up historically in the State of New York.

Mr. Cornell may I ask, basically is your proposition that proactive tests applies throughout the — a little more play in the joints when you’re dealing with local and county government or is your proposition that where you’re dealing with Rockland County draw to be a different test from that which apply to what you are suggesting?

J. Martin Cornell:

My position is that the test of substantial equality applies on the local level and that the equal protection clause must apply on the congressional state and local level.

But —

So it’s the same test but with a little more latitude?

J. Martin Cornell:

Precisely.

In dealing with the local county.

J. Martin Cornell:

Precisely, it’s the same test but when you ascertain whether there has been substantial equality or not, you must look at the numbers — the figures that you’re dealing with.

Now, for example, in the Kirkpatrick case, this Court said the whole thrust of as nearly as practical approach is inconsistent with the adoption of the fixed numerical standard which excuses population variances without regard to the circumstances of each case.

Are you — you would say then that when you’re dealing with local government, the desire to organize on a town shift line basis or town line basis especially where they have real functions as in this case is a rational justification of excuse for some population variation?

J. Martin Cornell:

That’s correct.

Whereas, but that it might not be enough of an excuse if the variation were 50% or some higher figure?

J. Martin Cornell:

That is correct Your Honor.

But — and also, it might not be a justification that the town lines were really functionally irrelevant to a local government.

J. Martin Cornell:

That is correct, Your Honor.

Of course, I’m also taking the initial premise there that the population deviations in this case are so minor that they are not substantial deviations to begin with.

You mean, this is base not on the 1970 but on the figures that were actually used?

J. Martin Cornell:

That’s correct, on 1969 or 1970.

Because of the smallest of the numbers.

J. Martin Cornell:

Because of the smallest of the numbers involved but in any case, I take the second step and say, if this Court concludes that there is substantial population deviation here that there are justifications that have been shown for this variation.

And that therefore, it should be allowed under the tests it’s been applied.

And that was the format that was used in Swann versus Adams involving Florida and Kilgarlin versus Martin in Texas where you rejected the arguments there saying that the populations were too large and that there was no acceptable justification which is demonstrated before.

The town lines might be, I take it that your position must be the town lines have some real substance in them for purpose of Local Government at the same variations might not be satisfactorily justified but on the town line basis, if we were dealing with the congressional district.

J. Martin Cornell:

That’s correct Your Honor.

I am saying that a 1% deviation for example on a congressional level which involves a shift of about 4,000 people when you talk about a 1% deviation on a local level involves a shift of approximately here a 121 people gets to be a little unrealistic.

But also the town line — the basis of the town lines perhaps have less significance with respect to a representative or congressman?

J. Martin Cornell:

Yes, unquestionably.

I think on a congressional level that municipal boundary lines are far less significant that they are for example in New York where historically and traditionally, there has been this interrelationship between town and county government.

Now, as a matter of fact, to demonstrate the interrelationship here, the plan of reapportionment when it was originally devised provided that the town chief executive officer who was elected within the town would be one of the legislators within that town automatically and that he would serve for example in the town of Ramapo which has six legislators.

There would be the supervisor of the town, the chief executive officer plus the five others which would provide for very direct interrelationships so that the chief executive officer on the town would still continue on the county level.

The Court in New York rejected that and said that the statutes did not permit that interrelationship.

Therefore, the chief executive officer in the towns must run separately for that county office.

In other words, the chief executive officer in the town can run on the ballot in two places.

One, he runs as a legislator and secondly, he runs as a town supervisor and as a practical matter, in Rockland County today, out of the five towns four of them have their chief executive officer who serves on the town level and is also elected and serves on the county level as well and one of the towns this is not the case.

So that this plan has effectively provided for this interrelationship between town and county government which is what is attempted to do being also in compliance with the requirements of Reynolds versus Sims.

You see what happens on the local level is that when you apply the rule of one man, one vote to a situation like this.

It can have the effect if you set up single-member districts of slicing a part the interrelationship between town and county government so that you would separate the operation of county government and town government.

And it was our attempt to comply with the rule but at the same time to apply for this interrelationship.

And that’s exactly what was done here in Rockland County.

The concept of tight mathematical equality is our position is somewhat unrealistic when you’re dealing with populations which are shifting constantly from time to time.

It’s true even in the situation of Rockland County where the census itself is not a scientific ascertainment of the number of people involved and also where in fact there is a constant growth and a constant shift.

So that to provide for a very tight absolute mathematical equality at any one point in time, seem somewhat illusory because within a few months or a year thereafter it may have shifted or changed so that in fact is not achieving the ultimate goal.

The flexibility which is required on the local level here in Rockland County is desirable and it is our position that if a tight mathematical formulation is applied on the local level that it may create difficulties in other areas where there is attempts perhaps you create regional governments or amalgamation of governments on a regional basis between some of the cities in the suburbs and that there you may have a necessity for compact or an understanding between these governments to arrive at a regional type of approach of the government and if you apply the population, the equal population principle with strict exactitude on the local level this may have the effect of foreclosing the ability to create any type of regional governmental units which I suggest may be some of the solution to the problems which we’ve had in the cities in the next decades ahead.

Now I’d like to touch briefly on multi-member districts from the theoretical standpoint.

I know that my adversaries have not raised this but it was raised in the Court of Appeals and Judge Fuld does touch upon this point in his dissent.

And I think it’s in the case and something that I should discuss very briefly.

J. Martin Cornell:

This Court has of course upheld multi-member districts on a number of occasions.

Fortson versus Dorsey involving Georgia was one of the earlier cases.

Burns versus Richardson involving the State of Hawaii and then there have been a number of affirmances of lower courts involving Wyoming, Arkansas, and of course recently the State of New Jersey and Jackman versus Bodine which I think you’re familiar with provided for multi-member districts as well.

It is our position that the use of multi-member districts is a constitutional method of complying with the one man, one vote requirement.

Was it any testimony taken into connection with this plan in the lower courts?

J. Martin Cornell:

There was no testimony at all Your Honor.

The plan was devised by the board of supervisors and presented to the Court and the Court passed upon it based upon the format of the plan without any testimony being taken.

I take it that the — one of the attacks on the multi-member plan in the lower courts was that they expect the side of multi-member district shouldn’t be just a mere multiple of the —

J. Martin Cornell:

That is correct.

As a matter of fact —

Was there — weren’t any experts or anything called in the connection with this?

J. Martin Cornell:

No, although Professor Banzhaf who wrote the leading article on this subject did argue orally for the petitioners in the Court of Appeals in New York.

And the Court there had the benefit of his comments before them at that time.

But then there were no counter-mathematics presented?

J. Martin Cornell:

Not other than what was set forth on oral argument.

There was no expert testimony which was taken.

Of course, in this case there is no problem as there was raised in some of the multi-member district cases and the one which will be coming before this Court involving Indiana of invidious discrimination.

So that does not involve here at all.

So that the only question that was before the Court of Appeals was our multi-member districts per se bad if you allocate legislators direct proportion of population rather than bringing in the factor of the square root of the population.

Have there been any other court cases that involved the same claim?

J. Martin Cornell:

Yes, there have.

The Indiana case involved this question and in the Indiana decision the court although it had a number of other factors involved did touch upon this question of whether multi-member districts were —

Have there been any others?

J. Martin Cornell:

The Supreme Court in the State of Iowa, Kruidenier versus McCulloch struck down a plan which did provide for multi-member districts.

This is not — this case is not cited in my brief.

The concurring opinion by Justice Stewart in the case touched on the question of multi-member districts and in reading the opinion, I suspect that he was saying although I’m not clear about this, I suspect that he was saying that multi-member districts were per se bad.

Based on the Banzhaf?

J. Martin Cornell:

Based upon the Banzhaf theory.

Any others where this have been litigated?

J. Martin Cornell:

Those, the Iowa case and the Indian case are the ones, of course the New Jersey case, Jackman versus Bodine.

J. Martin Cornell:

This was touched on but there the plan was of course approved.

But do you know any instances where those people who are drafting apportionment plans either judges or commissions or lawyers or legislators have run on the assumption that multi-member districts should be assigned strength on some basis other than the multiple of the base figure?

J. Martin Cornell:

No, I don’t Your Honor and I’ve made inquiries and I have not been able to find any plan that’s been drafted or in the contemplation of being drafted which does assign less done a direct proportionate number of legislators.

Thank You.

J. Martin Cornell:

And I think one of the problems here on this theoretical aspect of multi-member districts is actually covered by Professor Banzhaf in his law review article which I have in front of me.

He says in his own article as follows, “No attempt has been made to evaluate all the advantages and disadvantages of multi-member district systems.

Furthermore, there is no suggestion that this article presents a realistic picture of their actual operations which of course would involve the factors which are not present in the simple mathematical models.

And I think the problem with Professor Banzhaf theory is —

He doesn’t suggest how much discounts he make, does he?

J. Martin Cornell:

No, he does not.

He just has too much punch in the single district having several, several representatives as against some other districts having a fewer number or any one.

J. Martin Cornell:

That’s correct.

And somehow, you’re supposed to discount it.

How much?

J. Martin Cornell:

Well, he uses a square root factor.

He would say for example if I understand his theory correctly.

He would say that if he had one district with 10,000 people and if you have another district with 40,000 that it would be mathematically improper to allocate one legislator to the small one and four to the larger.

That the number of legislators should be allocated to the larger district, is the square root of the population for two legislators.

Yes, but that’s just something it goes out of the —

J. Martin Cornell:

Well, he —

What’s the justification?

J. Martin Cornell:

He uses a mathematical formula to arrive at it and I’ll be quite candid, I’m not sure that I understand all of the [Voice Overlap].

He really thinks that it’s so (Inaudible) that you ought to be to a single-member district.

J. Martin Cornell:

If you follow his arguments logically, it would lead to the conclusion that the only possibility is a single-member district plan or that they would have to be some adjustment in a number of legislators.

Well, if his basic premise is right maybe there’s some logic to that.

J. Martin Cornell:

Well, I think the problem with his theory —

I said if his basic essence.

J. Martin Cornell:

I think the problem is that he does not in creating these mathematical models recognize that a legislator once he is elected from a district takes into consideration the interests of the entire community.

He may be affected be party alliances.

He may be affected by pressure groups.

J. Martin Cornell:

He may be affected by what he thinks is right.

If you make that assumption, do you think Reynolds against Sims would have come out differently?

J. Martin Cornell:

No, I don’t.

That’s interesting.

J. Martin Cornell:

I think Reynolds versus Sims is really saying that what is required is effective and fair representation.

And that the ultimate goal and the ultimate aim is to provide for representation by the ultimate constituents on the legislative body and I think that is the test that should be applied.

And I think when you get to the mathematical refine measure, you’re moving away from the general premise behind Reynolds versus Sims.

Warren E. Burger:

If you follow the Professor places towards logical conclusion there’s something inherently unfair at New York having 70 or whatever number or members of the House of Representatives and Alaska has only one.

J. Martin Cornell:

Yes.

Warren E. Burger:

I think there’s a geometric progression in the force and influence which New York Congress can exercise as compared to the last case.

I suppose, inherent to is, that because New York is closer to Washington than Alaska.

There is some kind of a mathematical factor that gives them good deal and more force here than Alaska can have to remand.

J. Martin Cornell:

I think if you followed Professor Banzhaf’s theory you would have to come to the conclusion that in a multi-member district plan where you have for example four legislators that the four legislators who would be voting on a block vote and that there would not be these other influences involved.

This distinguishes the situation from weighted voting.

In the State of New York, there are at approximately 18 counties that have weighted voting.

They are of course your allocating all the votes to one individual and there you would have a situation analogous to block voting in a multi-member district.

But the voting power on the legislative level in a multi-member district, in this case, you have 18 legislators.

Even though five may come from one district, there is absolutely no assurance that you’re ever going to get block voting.

As a matter of fact, you normally don’t because the political alliances are different and they vote them on a party line as opposed to voting necessarily from, depending upon where they actually resided.

So that I think that the use of multi-member districts is a valid method of apportionment and that you cannot say per se based upon the mathematical models that have been developed that is bar.

Thurgood Marshall:

Mr. Cornell, not saying that’s invalid or not but wouldn’t you think that if you had the choice of one person representing you or for representing you and one, you wanted something done and two, you want to hold somebody responsible for it, wouldn’t you better off with one as to four?

J. Martin Cornell:

Well, I think —

Thurgood Marshall:

I don’t think he has a thing to its case with it?

J. Martin Cornell:

Yes.

This may be true.

I think that when you’re talking about and as a matter of fact the concurring opinion in this Iowa case that I mentioned before, Judge Stewart discussed the same type of thing.

He said, isn’t there’s something wrong with one man being able to vote for 13 people and another man being able to only vote for one.

Now, the problem with that theory is that the Chap is only voting for 13 people may be in a very large district.

So he’s only one out of a multitude of other people.

So that for him to have 13 legislators or four legislators in relation to total population of the component district which he is a part really is not giving him a better shape than the other Chap who is voting for one.

Thurgood Marshall:

My second question, about this fixed line, with regular district lines, how would they be moved in Rockland County?

The commissioners will do it to the legislature — the county legislature?

If you didn’t have this fixed boundaries?

J. Martin Cornell:

Well, the county actually in established in this plan of reapportionment appointed a reapportionment commission which is an appointed body that was part and set up to try to devise the best plan.

I presume that if subsequent censuses showed or if this Court says that this plan is no good, that they would appoint a bipartisan commission again to come up with a new plan or a better plan or just to carve line that would meet the test that it will be laid down here.

Thurgood Marshall:

I’m still am not too sure I understand the sanctity of this town lines.

J. Martin Cornell:

Well, the — in New York, the interrelationship of town and county government is the thing that the board of supervisors was the most concerned about.

In the past, before reapportionment came in, county government was run by the chief executives of the towns.

And there is a great deal of interrelationship between these two levels of government.

And it was a concern of the board of supervisors to devise this plan that they like to maintain an interrelationship between these two levels of government, so that the towns would have a voice in the county government that’s why they use the town lines.

Thurgood Marshall:

And that wouldn’t apply any of the State necessarily unless they could show the same thing.

J. Martin Cornell:

Precisely.

Thurgood Marshall:

What my brother Brennan said you are really saying that yours is an exceptional situation.

J. Martin Cornell:

Well, it in —

Thurgood Marshall:

Or are you saying that all counties that have towns are in the same category?

That’s what I was driving at.

J. Martin Cornell:

No, I’m not saying that.

What I’m saying is that in New York where there is this interrelationship between town and county governments that adherence to town boundary lines is a justification for some population deviations.

And this may not be trued in other jurisdictions where this is the case.

Mr. Cornell, are you familiar with the case in your State of New York involving one of the agencies of the municipal government of the City of New York involving barrel representation in the city?

J. Martin Cornell:

Yes, Wagner versus Blaikie.

You haven’t had the citation of that?

I think this Court denied certiorari if I’m not mistaken.

J. Martin Cornell:

Yes.

In the case I’m think of.

J. Martin Cornell:

That case is cited in the majority opinion in this case below although I have a feeling this citation is incorrect because I couldn’t find it this morning.

But it’s in that case.

It’s a federal supp case, yes and as a matter of fact, that case is quite interesting because there, there was in the districts that were equal population then on top of that were two representatives from the bureaus of the City of New York.

The court held that there was not such a deviation from population there and that the reason for doing this because of the inherent value of the barrels was a valid justification for providing —

So there was in addition to its apportionment representation, each of the barrels be it rich man or queens or manhattans or kings, each had two representations.

J. Martin Cornell:

That is correct.

So that you have, I have forgotten the numbers involved but you have two from each barrel plus you have others that were represented from single-member districts which were carved out within the City of New York.

That was a three-judge court case?

J. Martin Cornell:

I believe it was Your Honor.

And did it come here?

J. Martin Cornell:

Yes.

And what was the action used.

J. Martin Cornell:

I don’t recall Your Honor.

In case I’m thinking if it is [Voice Overlap]

J. Martin Cornell:

I think cert was denied.

Yes, I believe so.

Is that the Blaikie case?

J. Martin Cornell:

Yes, that’s correct Your Honor.

I would just like to say in conclusion that on a local level and in this case, the importance factor in my mind is that the implementation of the one man, one vote rule has the possible effect of separating talent county government and that the efforts have been made by the board of supervisors to maintain this interrelationship which we feel is justified.

And finally, that if the ultimate test is fair and effective representation, is set forth in Reynolds versus Sims, that one should not look at the equal population principle and that presented deviations which are found has the ends but merely a means to actually arriving at the ultimate goal of fair and effective representation.

And its thorough absolute-type mathematical analysis of population deviations may in fact frustrate the situation and that the use of town boundary lines in this case, of course also avoids the rather practical problems of gerrymandering.

That will not occur here if town boundaries are hereto.

Thank you Your Honor.

Warren E. Burger:

Thank you Mr. Cornell.

Mr. Rivet.

Paul H. Rivet:

Mr. Chief Justice, may it please the Court.

I think I will simply comment very briefly on Mr. Cornell’s very excellent presentation on the multi-member district.

I do not have basically disagree with him.

I don’t think the question here that we have to resolve is whether or not multi-member districts are constitutional per se at all times.

Mr. Banzhaf’s theory is fascinating but I don’t think it should be or need be in any fashion controlling or for that matter was never submitted by my clients and never contended by my clients below at any point.

I think that there is something that ought to be brought out about the county and town relationship.

Mr. Cornell has put this in the sense that we have a — only in arithmetic question and I think that he is fundamentally in error.

I think the question we have here is whether we’re going to have a county government that is dominated and run and oriented to the town government’s or whether we are going to have a county government that is oriented and responsive to the individual voters in Rockland County.

And that’s the question that we must resolve not whether there is to be —

Warren E. Burger:

How do you give that anymore by —

Paul H. Rivet:

Well, maybe if I simply give you some budget for use.

You’ll have an idea of the dimensions that we’re talking about.

The county legislator on Monday of this week has before it a proposed budget to the year 1971 of $53 million.

The largest town in Rockland County for next year, the town of Ramapo has a budget of less than $5 million.

Gentlemen, the enormity, the tremendous disparity in the sizes of these governments of the nature of the problems they deal with is such that we can no longer in the interests of the very thing that Mr. Cornell has said that the interest of meeting the growing problems of the 20th century have the tail wagging the dog.

We have literally had that situation in Rockland County for many years.

This commission that counsel has so well portrayed as having been appointed by the board of supervisors, yes a commission was appointed and its numbers and its representatives were designated by the supervisors and the proportions were in direct relationship to the town per se not the numbers of people in the towns.

So that the Town of Stony Point with 12,000 people have three votes on that commission and the Town of Ramapo with 70,000 people have three votes.

What can we expect from a commission that does not represent the actual population of the communities?

Warren E. Burger:

Well, but what’s the situation now in Stony Point?

Paul H. Rivet:

Stony Point still has 12,000 people in it and Ramapo has 75,000 people.

Warren E. Burger:

How many representatives does Stony Point have?

Paul H. Rivet:

Stony Point has one representative.

Warren E. Burger:

So that what you were worried about before has been cured.

Paul H. Rivet:

But I’m talking about the good-faith effort that was allegedly made by the County of Rockland and the argument has been made that the good-faith effort is demonstrated every amply by the fact that we had an impartial commission that was appointed to do the job.

Well, they did the job alright.

They came up with the plan that were maintained the town lines rigidly without any variation.

And may I point out that in Fortson, you recognized the right of multi-member districts and you recognized the right to maintain boundaries and very properly so.

But within that system, there was the ability to move county lines, not the county lines themselves but the counties within the structure to insure equality of vote and that the first premise and this is the assumption that I’m standing hereon is that my vote is the most important thing.

That after that we look at regional problems, we look at governmental problems.

I cannot conceive that how our forth forbearers in establishing the constitutional would have conceived of anything less than the most important right being the individual’s vote.

Warren E. Burger:

Mr. Rivet, suppose we take the figures that were projected from 1969 to 1971 where the 11% variation deviation was reduced down to about 4% —

Paul H. Rivet:

Its 7.9 Your Honor to be specific.

Warren E. Burger:

7 — from 11 it was reduced for approximately 4.2?

Paul H. Rivet:

That’s right.

Warren E. Burger:

Now suppose in 1971, this gets cut in half again and in 1972, it is one-half of 1% variation, then would you still have a quarrel with it?

Paul H. Rivet:

I think that you would then have met obviously the mathematical situation.

There’s no question with that.

Warren E. Burger:

Is there any other to meet?

Paul H. Rivet:

I think it is the first one to be met.

Paul H. Rivet:

But I think we not look at what has happened because if we look at what has happened then I think we also have the right to do some conjecturing.

Counsel has objected in his brief to speculation as to the future.

Except that when the future turned out okay because the role of the dice came out that the population margin went down, fine, okay.

But I simply say that all responsible authorities and this include by the way federal agencies in evaluating Rockland County for building projects.

I’m involved with an application right now and I know that Rockland County is one of the two counties in the entire State of New York where there say you don’t have to make 20-year projections because nobody can make an intelligent 20-year projection in Rockland County.

That are growth is burgeoning so greatly but Your Honor, there are some realistic limitations on it in the north end of the county which is the base of this plan.

Stony Point is something in excess of 50% State Rockland.

The policy states them to State Park.

Its ability to grow is very severely limited.

But the county is going to continue to grow and I think that it is not idle speculation to say that the next time around we will have 25 or 35 representatives in this system.

And it is very possible that as part of the result, we may end up with exactly the situation the Chief Judge Fuld in the Court of Appeals said namely, a 90% or an 80% discrimination.

And I don’t anyone would argue that that is a good plan or a good situation to have.

And what I’m pleading for is not that you leave the door open for people to come back and sue in the future.

My Lord!

We have enough litigation in the courts.

Let’s try to devise plans to deal with reapportionment and rules that local government can follow that will ensure that we don’t have a constant quarrel and constant litigation every time there is a change in census.

And I think this plan has within it the invidious invitation to continuing litigation.

And I mean that not only in Rockland by I think it will be emulated throughout the State of New York and throughout the country for the very simple reason that it ahs the beauty from the standpoint of those who are in local government now and who have dominated the structure, the desirability of maintaining their own.

Counsel has talked about the rational state policy and the importance of the town and the town supervisors.

He didn’t mention the fact that even the state law did not write into it the automatic right of the supervisor to seat on this body and yet this county legislature, this county board of supervisors in endeavoring to preserve itself, not to secure equality of representation gentlemen but to preserve itself, put into its local law and when you look in the appendix you’ll see it, the right to seat not because they are elected as a legislator but because they are elected as a supervisor.

Well, this was struck down even in New York; the lower courts struck this down right from the beginning.

But what I’m saying is that you must look at it in terms of what kind of an effort was being made here, not what was corrected by the courts because we’re talking about good faith.

We’re talking about good faith and we’re talking about good faith to a voter and a citizen.

Nobody is a going to reduce my taxes by the extent that my vote is diminished in the county of Rockland.

And yet my voice and my vote this year was reduced 12% or 11.9%.

Next year 8%.

Next year perhaps 25%.

And all that I am saying is that my vote should always have the same relationship within the ability of men to achieve it.

And I do not believe that that effort has been made here and it is not a question of multi-member districts or the (Inaudible) ideas of a professor who has written a very fascinating article on the square root of something.

I’m not a mathematician.

Paul H. Rivet:

I’m a lawyer and I’m a voter and I’m interested in government.

Judge Stewart, you asked the question this morning at the beginning of our argument relating to the political structure.

May I comment on it?

Potter Stewart:

I guess.

Paul H. Rivet:

The petitioners here represent the entire spectrum of the political body.

Responsible leaders of the Republican Party, responsible leaders in the Democratic Party, public officials, elected, one of my clients is a councilman in the town of Orangetown, and the petitioners June Molof and others are essentially the League of Women Voters of Rockland County.

What I am saying is that we are not a group of either do-gooders or people out to hone an ax.

We are all seeking an effort to be able to express ourselves fairly with equality before the body politic and we have been frustrated in it.

Mr. Justice Marshall commented on, isn’t it better to have a one to one relationship because you know who to look to when you have a problem and you know who to look to when something is not done.

Well, what is happening now and we’re having a circus in Rockland County is that we have four and five men representing 40-50,000 people.

And it’s a dreadful situation nobody knows who’s responsible for what.

And going a step further, I realize that a thousand people may sound like very little.

Rockland County, despite my adversaries, my good friend’s brief where he points out that well, you can’t divide an apartment house.

Rockland County is not a county of apartment houses.

This is a county of residences.

And when we talk about a thousand people, we’re talking about 250 families, 250 homes.

That is a very large development.

And moving a line involving a hundred homes is not a difficult line, it maybe involved moving two or three streets.

We’re not talking about running a line down the (Inaudible) of an apartment house.

There isn’t an apartment house in Rockland County that has a thousand people in it.

I doubt if there’s one in Rockland County to have more than 250 people in it.

The issue is not arithmetic.

I cannot emphasize that too strongly.

Obviously, we can’t win an argument on arithmetic.

I mean because you can play games with these figures from now until tomorrow afternoon at this time, and we would never come to a conclusion.

And I do not think that the Court wants to set a rule where you say, well, you can’t have more than 1% or you can’t have more than 3%.

You must look at the entire picture.

In the State of Hawaii, you recognize rigid boundary lines and I think I understand why.

Very simply, in the State of Hawaii, you have islands divided by open ocean, in some cases, 50, 60 miles apart.

Obviously, you couldn’t divide a man of course that greater distance.

Paul H. Rivet:

I see my light is on gentlemen.

Warren E. Burger:

Thank you very much Rivet.

Thank you.

The case is submitted.