“We find absolutely no evidence that, in the instant case, the distinction on which the appellants rely is a qualitative difference, as opposed to a difference of degree.”
How later courts described this case
- “We find absolutely no evidence that, in the instant case, the distinction on which the appellants rely is a qualitative difference, as opposed to a difference of degree.”
- invalidating malapportioned City Board
Written by the judges who cited it.
The opinion
JON O. NEWMAN, Circuit Judge,
concurring:
I concur in Judge Oakes’ thoughtful and comprehensive opinion for the Court but *394 add a few words to emphasize what we are invalidating and what representation arrangements remain for future consideration. The New York City Board of Estimate allots two votes to each of its three at-large members and one vote to each of its five borough representatives. On budget matters, the mayor cannot vote, leaving only two at-large members, each with two votes; the mayor’s authority to influence budget decisions derives from his power to veto the budget. It is this precise arrangement of voting power that we find unconstitutional under circumstances where the aggregate deviation from equality among the five boroughs is 132 percent.
As Judge Oakes acknowledges, we are not confronted with an arrangement whereby the at-large voting power in the Board of Estimate substantially outweighs the combined voting power of the borough representatives. That could be accomplished either by increasing the number of votes cast by each at-large member or by increasing the number of at-large representatives, even if each has only a single vote; combinations of these two approaches are also possible.
Until today the only cases considering the constitutionality of representation arrangements that combine district representation with at-large representation have involved bodies in which the voting power of the at-large members was a small fraction of the total voting power. In most of these cases, there was only one at-large member (entitled to cast one vote), compared to several district representatives. E.g., Avery v. Midland County, 390 U.S. 474 , 88 S.Ct. 1114 , 20 L.Ed.2d 45 (1968) (one at-large out of five-member body); Perry v. City of Opelousas, 515 F.2d 639 (5th Cir. 1975) (one out of six); Martin v. Venables, 401 F.Supp. 611 (D.Conn.1975) (one out of eleven); Markoe v. Legislature of Virgin Islands, 592 F.2d 188 (3d Cir.1979) (one out of fifteen). One case involved four at-large members, but they were still a minority of a thirteen-member body. Latino Political Action Committee, Inc. v. City of Boston, 568 F.Supp. 1012 (D.Mass.), stay denied, 716 F.2d 68 (1st Cir.), stay denied, 463 U.S. 1319 , 104 S.Ct. 5 , 77 L.Ed.2d 1421 (Brennan, Circuit Justice, 1983). With the at-large representation so insubstantial, the courts examined only the deviations of the populations of the districts. Deviations among the districts were found impermissible in Avery, Martin, and Latino, and acceptable in Perry and Markoe . In our case the voting power of the at-large members is relatively larger: they have a one-vote majority of the voting power on the Board of Estimate (six of eleven votes), though they lack even this edge on budget matters (four out of nine votes).
At some point, the size of the voting power of the at-large members, compared to that of the district members, would make the at-large representation not only relevant but decisive on the issue of constitutionally valid apportionment. If a body included 100 at-large members, for example, the existence of one representative from each of five districts of different populations could not seriously be thought to offend constitutional standards. Especially as to local governmental bodies, where apportionment standards are applied with some flexibility, see Abate v. Mundt, 403 U.S. 182, 185 , 91 S.Ct. 1904, 1906-07 , 29 L.Ed.2d 399 (1971), equal protection requirements do not prohibit inventive arrangements that combine substantial representation of the electorate at large with single-member districts of differing populations. The Equal Protection Clause forbids arrangements under which the voting strength of voters in one or more small districts outweighs the voting strength of voters in one or more large districts and district representatives exercise substantial voting power within the elected body. But where at-large representatives have the dominant voting power, the allotment of at least one voice and vote to each of a small number of districts, regardless of size, preserves the virtues of local representation without sacrificing principles of equal protection.
Doubtless it will be difficult in some cases to draw the line between adequate and inadequate at-large voting power. At one extreme, it is clear that 100 at-large members would be sufficient to tolerate *395 even large deviations among the populations of five single-member districts. At the other extreme, it is clear that one at-large member is insufficient to tolerate such deviations, as Avery and Martin demonstrate, and even that four out of thirteen are insufficient, as Latino demonstrates. In our case, I agree that at-large voting power of six out of eleven on most issues and four out of nine on budget issues is not sufficient to permit us to ignore the substantial aggregate deviation of the five boroughs that each send one representative to the New York City Board of Estimate. That is what we have decided; what we have not decided, and need not decide, is the point at which an "apportionment according substantial voting power to at-large representatives would satisfy constitutional requirements, notwithstanding otherwise unacceptable deviation among the populations of a small number of single-member districts.