New York City's Board of Estimate consists of the mayor and two
other members elected citywide, each of whom casts two votes, plus
the elected presidents of the city's five boroughs, each of whom
casts one vote. Appellees, residents and voters of Brooklyn, the
most populous borough, charging that the city charter's sections
governing the board's composition are inconsistent with the Equal
Protection Clause of the Fourteenth Amendment, brought suit in the
District Court, which concluded that the board was a nonelective,
nonlegislative body not subject to the rule established by
Reynolds v. Sims, 377 U. S. 533, and
other reapportionment cases. The Court of Appeals reversed, finding
that the board's selection process must comply with the
reapportionment cases' so-called "one-person, one-vote"
requirement, since its members ultimately are chosen by popular
vote. On remand, the District Court determined that applying the
Abate v. Mundt, 403 U. S. 182,
population per representative methodology to the disparate borough
populations produced a total deviation of 132.9% from voter
equality among the electorates, and that the city's explanations
for this range neither required nor justified such a gross
deviation. The Court of Appeals affirmed, holding,
inter
alia, that the presence of citywide representatives did not
warrant departure from the
Abate methodology, and, thus,
that the District Court's finding of a 132.9% deviation was
correct.
Held: The Board of Estimate's structure is inconsistent
with the Equal Protection Clause of the Fourteenth Amendment
because, although the boroughs have widely disparate populations,
each has equal representation on the board. Pp.
489 U. S.
692-703.
(a) Board membership elections are local elections subject to
review under the prevailing reapportionment doctrine. The board,
composed of officials who become members as a matter of law upon
their elections, has a significant range of fiscal and legislative
functions common to municipal governments, including assisting in
the formulation of the
Page 489 U. S. 689
city's budget and controlling land use, contract, and franchise
powers. That the citywide members enjoy a 6-to-5 voting majority
does not render the board's composition constitutional, since the
borough presidents control the outcome of board decisions anytime
the citywide members do not vote together, and always control
budgetary decisions, because the mayor has no vote on such matters.
Moreover, the
Reynolds-Abate approach should not be put
aside in favor of the theoretical Banzhaf Index -- which produces a
standard deviation of 30.8% for nonbudget matters and a larger
figure for budget items by mathematically calculating a voter's
power to determine the outcome of an election -- since the latter
approach tends to ignore partisanship, race, voting habits, and
other characteristics having an impact on general election
outcomes. Pp.
489 U. S.
692-699.
(b) The presence of citywide members is a major component to be
factored into the process of determining the deviation between more
or less populous boroughs. This approach -- which yields a standard
deviation of 78% -- recognizes that voters in each borough vote
for, and are represented by, both their borough president and the
citywide members, thus departing from the lower courts' approach
which treated the five boroughs as single-member districts, each
with a representative having a single vote. Pp.
489 U. S.
699-701.
(c) The city's proffered governmental interests -- that the
board is essential to the successful government of New York City,
is effective, and accommodates natural and political boundaries as
well as local interests -- do not suffice to justify a 78%
deviation from the one-person, one-vote ideal, particularly because
the city could be served by alternative ways of constituting the
board that would minimize the discrimination in voting power. Pp.
489 U. S.
701-703.
831 F.2d 384, affirmed.
WHITE, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and MARSHALL, O'CONNOR, SCALIA, and KENNEDY, JJ.,
joined. BRENNAN, J., filed an opinion concurring in part and
concurring in the judgment, in which STEVENS, J., joined,
post, p.
489 U. S. 703.
BLACKMUN, J., filed an opinion concurring in part and concurring in
the judgment,
post, p.
489 U. S.
701-703.
Page 489 U. S. 690
JUSTICE WHITE delivered the opinion of the Court.
The Board of Estimate of the city of New York consists of three
members elected citywide, plus the elected presidents of each of
the city's five boroughs. Because the boroughs have widely
disparate populations -- yet each has equal representation on the
board -- the Court of Appeals for the Second Circuit held that this
structure is inconsistent with the Equal Protection Clause of the
Fourteenth Amendment. We affirm.
Appellees, residents and voters of Brooklyn, New York City's
most populous borough, commenced this action against the city in
December, 1981. [
Footnote 1]
They charged that the city's charter sections that govern the
composition of the Board of Estimate [
Footnote 2] are inconsistent with the Equal Protection
Clause
Page 489 U. S. 691
of the Fourteenth Amendment as construed and applied in various
decisions of this Court dealing with districting and apportionment
for the purpose of electing legislative bodies. The District Court
dismissed the complaint,
551 F.
Supp. 652 (EDNY 1982), on the ground that the board was not
subject to the rule established by
Reynolds v. Sims,
377 U. S. 533
(1964), its companion cases, and its progeny, such as
Abate v.
Mundt, 403 U. S. 182
(1971), because, in its view, the board is a nonelective,
nonlegislative body. The Court of Appeals reversed. 707 F.2d 686
(CA2 1983). Because all eight officials on the board ultimately are
selected by popular vote, the court concluded that the board's
selection process must comply with the so-called "one-person,
one-vote" requirement of the reapportionment cases. The court
remanded to the District Court to ascertain whether this compliance
exists. Bifurcating the proceedings, the District Court determined,
first, that applying this Court's methodology in
Abate v.
Mundt, supra, to the disparate borough populations produced a
total deviation of 132.9% from voter equality among these
electorates,
592 F.
Supp. 1462 (EDNY 1984); and, second, that the city's several
explanations for this range neither require nor justify the
electoral scheme's gross deviation from equal representation.
647 F.
Supp. 1463 (EDNY 1986). The court thus found it unnecessary to
hold that the deviation it identified was
per se
unconstitutional.
Page 489 U. S. 692
The Court of Appeals affirmed. 831 F.2d 384 (CA2 1987). Tracing
the imperative of each citizen's equal power to elect
representatives from
Reynolds v. Sims to
Abate v.
Mundt and beyond, the court endorsed the District Court's
focus on population per representative. The court held that the
presence of the citywide representatives did not warrant departure
from the
Abate approach, and that the District Court's
finding of a 132% deviation was correct. Without deciding whether
this gross deviation could ever be justified in light of the
flexibility accorded to local governments in ordering their
affairs, the Court of Appeals, agreeing with the District Court,
held inadequate the city's justifications for its departure from
the equal protection requirement that elective legislative bodies
be chosen from districts substantially equal in population,
especially since alternative measures could address the city's
valid policy concerns and at the same time lessen the
discrimination against voters in the more populous districts. We
noted probable jurisdiction in both Nos. 87-1022 and 87-1112, 485
U.S. 986 (1988). [
Footnote
3]
As an initial matter, we reject the city's suggestion that,
because the Board of Estimate is a unique body wielding
nonlegislative powers, board membership elections are not subject
to review under the prevailing reapportionment doctrine. The equal
protection guarantee of "one-person, one-vote" extends not only to
congressional districting plans,
see Wesberry v. Sanders,
376 U. S. 1 (1964),
not only to state legislative districting,
see Reynolds v.
Sims, supra, but also to local government apportionment.
Avery v. Midland County, 390 U. S. 474,
390 U. S.
479-481 (1968);
Abate v. Mundt, supra, at
403 U. S. 185.
Both state and local elections are subject to the general rule
Page 489 U. S. 693
of population equality between electoral districts. No
distinction between authority exercised by state assemblies and the
general governmental powers delegated by these assemblies to local,
elected officials, suffices to insulate the latter from the
standard of substantial voter equality.
See Avery v. Midland
County, supra, at
390 U. S. 481.
This was confirmed in
Hadley v. Junior College Dist. of
Metropolitan Kansas City, 397 U. S. 50
(1970):
"[W]henever a state or local government decides to select
persons by popular election to perform governmental functions, the
Equal Protection Clause of the Fourteenth Amendment requires that
each qualified voter must be given an equal opportunity to
participate in that election, and when members of an elected body
are chosen from separate districts, each district must be
established on a basis that will insure, as far as is practicable,
that equal numbers of voters can vote for proportionally equal
numbers of officials."
Id. at
397 U. S.
56.
These cases are based on the propositions that, in this country,
the people govern themselves through their elected representatives,
and that "each and every citizen has an inalienable right to full
and effective participation in the political processes" of the
legislative bodies of the Nation, State, or locality, as the case
may be.
Reynolds v. Sims, 377 U.S. at
377 U.S. 565. Since "[m]ost citizens
can achieve this participation only as qualified voters through the
election of legislators to represent them," full and effective
participation requires "that each citizen have an equally effective
voice in the election of members of his . . . legislature."
Ibid. As Daniel Webster once said, "the right to choose a
representative is every man's portion of sovereign power."
Luther v.
Borden, 7 How. 1, 30 (1849) (statement of counsel).
Electoral systems should strive to make each citizen's portion
equal. If districts of widely unequal population elect an equal
number
Page 489 U. S. 694
of representatives, the voting power of each citizen in the
larger constituencies is debased, and the citizens in those
districts have a smaller share of representation than do those in
the smaller districts. Hence, the Court has insisted that seats in
legislative bodies be apportioned to districts of substantially
equal populations. Achieving
"'fair and effective representation of all citizens is . . . the
basic aim of legislative apportionment,' [
Reynolds,
supra], at
377 U.S.
565-566; and [it is] for that reason that
[
Reynolds] insisted on substantial equality of populations
among districts."
Gaffney v. Cummings, 412 U. S. 735,
412 U. S. 748
(1973).
That the members of New York City's Board of Estimate trigger
this constitutional safeguard is certain. All eight officials
become members as a matter of law upon their various elections. New
York City Charter ยง 61 (1986). The mayor, the comptroller, and the
president of the city council, who comprise the board's citywide
number, are elected by votes of the entire city electorate. Each of
these three cast two votes, except that the mayor has no vote on
the acceptance or modification of his budget proposal. Similarly,
when residents of the city's five boroughs -- the Bronx, Brooklyn,
Manhattan, Queens, and Richmond (Staten Island) -- elect their
respective borough presidents, the elections decide each borough's
representative on the board. These five members each have single
votes on all board matters.
New York law assigns to the board a significant range of
functions common to municipal governments. [
Footnote 4] Fiscal responsibilities
Page 489 U. S. 695
include calculating sewer and water rates, tax abatements, and
property taxes on urban development projects. The board manages all
city property; exercises plenary zoning authority; dispenses all
franchises and leases on city property; fixes generally the
salaries of all officers and
Page 489 U. S. 696
persons compensated through city moneys; and grants all city
contracts. This array of powers, which the board shares with no
other part of the New York City government, are exercised through
the aforementioned voting scheme: three citywide officials cast a
total of six votes; their five borough counterparts, one vote
each.
In addition, and of major significance, the board shares
legislative functions with the city council with respect to
modifying and approving the city's capital and expense budgets. The
mayor submits a proposed city budget to the board and city council,
but does not participate in board decisions to adopt or alter the
proposal. Approval or modification of the proposed budget requires
agreement between the board and the city council. Board votes on
budget matters, therefore, consist of four votes cast by two
at-large members and five by the borough presidents.
This considerable authority to formulate the city's budget,
which last fiscal year surpassed $25 billion, as well as the
board's land use, franchise, and contracting powers over the city's
7 million inhabitants, situate the board comfortably within the
category of governmental bodies whose "powers are general enough
and have sufficient impact throughout the district" to require that
elections to the body comply with equal protection strictures.
See Hadley v. Junior College Dist., 397 U.S. at
397 U. S.
54.
The city also erroneously implies that the board's composition
survives constitutional challenge because the citywide members cast
a 6-to-5 majority of board votes, and hence are in position to
control the outcome of board actions. The at-large members,
however, as the courts below observed, often do not vote together,
and when they do not, the outcome is determined by the votes of the
borough presidents, each having one vote. Two citywide members,
with the help of the presidents of the two least populous boroughs,
the Bronx and Staten Island, will prevail over a disagreeing
coalition
Page 489 U. S. 697
of the third citywide member and the presidents of the three
boroughs that contain a large majority of the city's population.
Furthermore, because the mayor has no vote on budget issues, the
citywide members alone cannot control board budgetary
decisions.
The city's primary argument is that the courts below erred in
the methodology by which they determined whether, and to what
extent, the method of electing the board members gives the voters
in some boroughs more power than the voters in other boroughs.
Specifically, the city focuses on the relative power of the voters
in the various boroughs to affect board decisions, an approach
which involves recognizing the weighted voting of the three
citywide members.
As described by the Court of Appeals, 831 F.2d at 386, n. 2 (the
city's description is essentially the same, Brief for Municipal
Appellants 35-36), the method urged by the city to determine an
individual voter's power to affect the outcome of a board vote
first calculates the power of each member of the board to affect a
board vote, and then calculates voters' power to cast the
determining vote in the election of that member. This method,
termed the Banzhaf Index, applies as follows: 552 possible voting
combinations exist in which any one member can affect the outcome
of a board vote. Each borough president can cast the determining
vote in 48 of these combinations (giving him a "voting power" of
8.7%), while each citywide member can determine the outcome in 104
of 552 combinations (18.8%). A citizen's voting power through each
representative is calculated by dividing the representative's
voting power by the square root of the population represented; a
citizen's total voting power thus aggregates his power through each
of his four representatives -- borough president, mayor,
comptroller, and council president. Deviation from ideal voting
power is then calculated by comparing this figure with the figure
arrived at when one considers
Page 489 U. S. 698
an electoral district of ideal population. Calculated in this
manner, the maximum deviation in the voting power to control board
outcomes is 30.8% on nonbudget matters, and, because of the mayor's
absence, a higher deviation on budget issues.
The Court of Appeals gave careful attention to, and rejected,
this submission. We agree with the reasons given by the Court of
Appeals that the population-based approach of our cases from
Reynolds through
Abate should not be put aside in
this litigation. We note also that we have once before, although in
a different context, declined to accept the approach now urged by
the city.
Whitcomb v. Chavis, 403 U.
S. 124 (1971). In that case we observed that the Banzhaf
methodology "remains a theoretical one," and is unrealistic in not
taking into account
"any political or other factors which might affect the actual
voting power of the residents, which might include party
affiliation, race, previous voting characteristics, or any other
factors which go into the entire political voting situation."
Id. at
403 U. S.
145-146.
The personal right to vote is a value in itself, and a citizen
is, without more and without mathematically calculating his power
to determine the outcome of an election, shortchanged if he may
vote for only one representative when citizens in a neighboring
district, of equal population, vote for two; or, to put it another
way, if he may vote for one representative and the voters in
another district half the size also elect one representative. Even
if a desired outcome is the motivating factor bringing voters to
the polls, the Court of Appeals in this case considered the Banzhaf
Index an unrealistic approach to determining whether citizens have
an equal voice in electing their representatives because the
approach tends to ignore partisanship, race, and voting habits or
other characteristics having an impact on election outcomes.
The Court of Appeals also thought that the city's approach was
"seriously defective in the way it measures Board members'
Page 489 U. S. 699
power to determine the outcome of a Board vote." 831 F.2d at
390. The difficulty was that this method did not reflect the way
the board actually works in practice; rather, the method is a
theoretical explanation of each board member's power to affect the
outcome of board actions. It may be that, in terms of assuring fair
and effective representation, the equal protection approach
reflected in the
Reynolds v. Sims line of cases is itself
imperfect, but it does assure that legislators will be elected by,
and represent citizens in, districts of substantially equal size.
It does not attempt to inquire whether, in terms of how the
legislature actually works in practice, the districts have equal
power to affect a legislative outcome. This would be a difficult
and ever-changing task, and its challenge is hardly met by a
mathematical calculation that itself stops short of examining the
actual day-to-day operations of the legislative body. The Court of
Appeals, in any event, thought there was insufficient reason to
depart from our prior cases, and we agree. [
Footnote 5]
Having decided to follow the established method of resolving
equal protection issues in districting and apportionment cases, the
Court of Appeals then inquired whether the presence of at-large
members on the board should be factored into the process of
determining the deviation between the more and less populous
boroughs. The court decided that they need not be taken into
account, because the at-large members
Page 489 U. S. 700
and the borough presidents respond to different constituencies.
The three at-large members obviously represent citywide interests,
but, in the Court of Appeals' judgment, the borough presidents
represent and are responsive to their boroughs, yet each has one
vote despite the dramatic inequalities in the boroughs'
populations. Consideration of the citywide members might be
different, the court explained,
"If the at-large bloc was not simply a majority, but a majority
such that it would always and necessarily control the governing
body, and the district representatives play a decidedly subsidiary
role. . . ."
831 F.2d at 389, n. 5. Like Judge Newman in concurrence,
however, the court noted that this was decidedly not true of the
board. [
Footnote 6]
The Court of Appeals then focused on the five boroughs as
single-member districts, electing five representatives to the
board, each with a single vote. Applying the formula that we have
utilized without exception since 1971,
see Abate v. Mundt,
403 U.S. at
403 U. S. 184
and n. 1;
Gaffney v. Cummings, 412 U.S. at
412 U. S. 737;
Brown v. Thomson, 462 U. S. 835
(1983), the Court of Appeals agreed with the District Court that
the maximum percentage deviation from the ideal population is
132.9%. [
Footnote 7]
Page 489 U. S. 701
We do not agree with the Court of Appeals' approach. In
calculating the deviation among districts, the relevant inquiry is
whether "the vote of any citizen is approximately equal in weight
to that of any other citizen,"
Reynolds v. Sims, 377 U.S.
at
377 U.S. 579, the aim
being to provide "fair and effective representation for all
citizens,"
id. at
377
U.S. 565-566. Here, the voters in each borough vote for the
at-large members as well as their borough president, and they are
also represented by those members. Hence, in determining whether
there is substantially equal voting power and representation, the
citywide members are a major component in the calculation, and
should not be ignored. [
Footnote
8]
Because of the approach followed by the District Court and the
Court of Appeals, there was no judicial finding concerning the
total deviation from the ideal that would be if the at-large
members of the board are taken into account. In pleadings filed
with the District Court, however, appellees indicated, and the city
agreed, that the deviation would then be 78%.
See App. 47,
206, 375-376. This deviation was
Page 489 U. S. 702
confirmed at oral argument. [
Footnote 9] Tr. of Oral Arg. 14-15, 39-40. And as to
budget matters, when only two citywide members participate, the
deviation would be somewhat larger. We accept, for purposes of this
case, the figure agreed upon by the parties.
We note that no case of ours has indicated that a deviation of
some 78% could ever be justified.
See Brown v. Thomson,
supra, at
462 U. S.
846-847;
Connor v. Finch, 431 U.
S. 407,
431 U. S.
410-420 (1977);
Chapman v. Meier, 420 U. S.
1,
420 U. S. 21-26
(1975);
Mahan v. Howell, 410 U. S. 315,
410 U. S. 329
(1973). At the very least, the local government seeking to support
such a difference between electoral districts would bear a very
difficult burden, and we are not prepared to differ with the
holding of the courts below that this burden has not been carried.
The city presents in this Court nothing that was not considered
below, arguing chiefly that the board, as presently structured, is
essential to the successful government of a regional entity, the
city of New York. The board, it is said, accommodates natural and
political boundaries, as well as local interests. Furthermore,
because the board has been effective, it should not be disturbed.
All of this, the city urges, is supported by the city's history.
The courts below, of course, are in a much
Page 489 U. S. 703
better position than we to assess the weight of these arguments,
and they concluded that the proffered governmental interests were
either invalid or were not sufficient to justify a deviation of
132%, [
Footnote 10] in part
because the valid interests of the city could be served by
alternative ways of constituting the board that would minimize the
discrimination in voting power among the five boroughs. [
Footnote 11] Their analysis is
equally applicable to a 78% deviation, and we conclude that the
city's proffered governmental interests do not suffice to justify
such a substantial departure from the one-person, one-vote
ideal.
Accordingly the judgment of the Court of Appeals is
Affirmed.
* Together with No. 87-1112,
Ponterio v. Morris et al.,
also on appeal from the same court.
[
Footnote 1]
Appellants in No. 87-1022 are New York City, the city's Board of
Estimate, the board's eight members, and intervenor-defendant
Robert Straniere, a New York State Assembly member. Frank Ponterio,
a resident of Staten Island, and an intervening defendant below, is
the appellant in No. 87-1112.
[
Footnote 2]
Section 61 of the New York City Charter (1986) reads:
"Membership. The mayor, the comptroller, the president of the
council, and the presidents of the boroughs shall constitute the
board of estimate."
Section 62 reads:
"Voting in the Board. a. As members of the board of estimate,
the mayor, the comptroller and the president of the council shall
each be entitled to cast two votes, and the president of each
borough shall be entitled to cast one vote. b. Except as otherwise
provided in this charter or by law, the board shall act by
resolution adopted by a majority of the whole number of votes
authorized to be cast by all the members of the board. . . . d. A
quorum of the board shall consist of a sufficient number of members
thereof to cast six votes, including at least two of the members
authorized to cast two votes each."
Section 120(d) provides that the mayor may not vote as a board
member when the adoption or modification of his proposed budget is
at issue.
[
Footnote 3]
The municipal appellants and intervenor-appellant Straniere
served and filed notices of appeal on October 15, 1987, and
November 6, 1987, respectively. Intervenor-appellant Ponterio
served and filed his notice of appeal on December 16, 1987.
[
Footnote 4]
The District Court correctly observes that the board's powers
are set forth in the city charter, state legislation, and the New
York City Administrative Code. Plaintiffs-appellees submitted to
the District Court the following list of board powers:
"A. The Board of Estimate exclusively"
"i. determines the use, development and improvement of property
owned by the City;"
"ii. approves standards, scopes and final designs of capitol
[
sic] projects for the City;"
"iii. negotiates and enters into all contracts on behalf of the
City;"
"iv. negotiates and approves all franchises that are granted by
the City;"
"v. grants leases of City property and enters into leases of
property for City use;"
"vi. sets the rates for purchases of water from the City;"
"vii. sets the charges for sewer services provided by the
City;"
"viii. approves or modifies all zoning decisions for the City;
and"
"ix. sets tax abatements."
"B. The Board of Estimate acting in conjunction with the New
York City Council"
"i. recommends and approves the expense budget of the City
without the participation of the Mayor;"
"ii. recommends and approves the capital budget of the City
without the participation of the Mayor;"
"iii. periodically modifies the budgets of the City;"
"iv. confers with the City Council when agreement on the budget
between the two bodies is not reached;"
"v. overrides mayoral vetoes of budget items without the
participation of the Mayor; and"
"vi. holds hearings on budgetary matters."
"C. The Board of Estimate also"
"i. administers the Bureau of Franchises;"
"ii. administers the Bureau of the Secretary;"
"iii. holds public hearings on any matter of City policy within
its responsibilities whenever called upon to do so by the Mayor or
in its discretion for the public interest;"
"iv. holds hearings on tax abatements that are within the
discretion of City administrative agencies; and"
"v. makes recommendations to the Mayor or City Council in regard
to any matter of City policy."
Statement of Facts Pursuant to Local Rule 9(g) in No. 8-CV-3920
(EDNY), App. 44-46.
See also W. H. K. Communications
Associations, Inc., The Structure, Powers, and Functions.of New
York City's Board of Estimate (1973), App. 54 (Kramarsky
Study).
[
Footnote 5]
Similarly, we reject appellant Ponterio's submission, which
disagrees with both the Court of Appeals and the city. Ponterio
puts aside a citizens' theoretical ability to cast a tie-breaking
vote for their representative, and focuses only on each borough
representative's tie-breaking power on the board. Brief for
Appellant Ponterio in No. 87-1112, pp. 17-23. The formula suffers
from the criticisms applicable to the Banzhaf Index generally.
Ponterio's argument in some ways is also inconsistent with our
insistence that the equal protection analysis in this context
focuses on representation of people, not political or economic
interests.
See, e.g., Reynolds v. Sims, 377 U.
S. 533,
377 U. S. 561,
377 U. S. 562
(1964);
Dunn v. Blumstein, 405 U.
S. 330,
405 U. S. 336
(1972).
[
Footnote 6]
The Court of Appeals writes:
"Through [
sic] the appellant Board insists on referring
to 'an at-large majority voting bloc,' in fact there is no such
'bloc.' Rather, this supposed 'bloc' consists of three persons,
having two votes each, who are free to, and do, vote on different
sides of various issues. Only if all three vote together are they
bound to carry the day. Furthermore, on certain budget issues, on
which the mayor does not vote, the at-large members cannot win a
vote without the support of a borough president. It follows that
there is no majority-at-large voting bloc bound to control the
Board, and that this case is far removed from the hypotheticals
offered by the Board and
Amicus Banzhaf."
831 F.2d at 389, n. 5 (citation omitted).
[
Footnote 7]
That percentage is the sum of the percentage by which Brooklyn,
the city's most populous district (population 2,230,936), exceeds
the ideal district population (1,414,206), and the percentage by
which Staten Island, the least populous (352,151), falls below this
ideal. Queens' population was stipulated to be 1,891,325;
Manhattan's, 1,427,533; and the Bronx's, 1,169,115. The parties
stipulated, therefore, that the city's total population is
7,071,030.
See App. to Juris. Statement in No. 87-1112,
pp. 9-10,
[
Footnote 8]
Appellees point out that, in
Avery v. Midland County,
390 U. S. 474
(1968), we struck down a county apportionment scheme consisting of
four district representatives and one at-large member without
considering the effect of the at-large representative. In that
case, however, we were not faced with the task of determining the
disparity in voting power among districts of different population;
the issue before the Court was whether our decision in
Reynolds
v. Sims, requiring that state legislatures be apportioned on
the basis of population, applied as well to local government
legislative bodies. 390 U.S. at
390 U. S.
478-479. Nothing in
Avery even remotely
suggests that the impact of at-large representatives is to be
ignored in determining whether an apportionment scheme violates the
Equal Protection Clause.
[
Footnote 9]
At oral argument in this Court, the city conceded this
point:
"QUESTION: . . . If we use the
Abate method and took
the three at-large officers and factored them into the analysis,
what would the population deviation be? Or can we not determine
that based on this record?"
"Mr. ZIMROTH [counsel for the City]: It depends on how you
factor them in. There's one way of factoring them in which would
divide the number of citywide votes proportionately among all of
the counties [
sic]. . . . If you use that method, you come
up with a number of 76 [
sic] percent. . . . [T]hat's the
answer to your question. That's the result you get if you use that
methodology."
Tr. of Oral Arg. 14-15. Appellees' counsel also stated that the
deviation "came to 78 percent when you allocated that way."
Id. at 39-40. Although Ponterio rejected the 78% figure in
the District Court, he did so only in reliance on his modified
Banzhaf test. For reasons already stated, that reliance is
misplaced.
[
Footnote 10]
We note also that we are not persuaded by arguments that explain
the debasement of citizens' constitutional right to equal franchise
based on exigencies of history or convenience.
See
Reynolds, 377 U.S. at
377
U.S. 579-580 ("Citizens, not history or economic interests,
cast votes");
see also Maryland Committee for Fair
Representation v. Tawes, 377 U. S. 656,
377 U. S. 675
(1964);
Lucas v. Forty-Fourth Colorado General Assembly,
377 U. S. 713,
377 U. S. 738
(1964).
[
Footnote 11]
We are not presented with the question of the constitutionality
of the alternative board structures suggested by the District Court
and the Court of Appeals.
JUSTICE BRENNAN, with whom JUSTICE STEVENS joins, concurring in
part and concurring in the judgment.
I agree with the opinion of the Court except insofar as it holds
that the Court of Appeals should have taken the at-large members of
the board into account in calculating the deviation from voter
equality. For the reasons given by the Court of Appeals, I would
exclude those members from this calculation.
JUSTICE BLACKMUN, concurring in part and concurring in the
judgment.
I, too, would affirm the judgment below, and share many of the
Court's reasons for doing so.
Page 489 U. S. 704
I agree with the majority that measuring the degree of voter
inequality in these cases requires inclusion of the at-large
members of the Board of Estimate. I also suspect the Court is
correct in rejecting the Banzhaf Index here. But, as the Court
itself notes,
ante at 698, under the Index the deviation
from voter equality measures 30.8% for nonbudget matters, and a
still larger figure for budget issues. Even this measure of voter
inequality is too large to be constitutional and, for the reasons
given by the District Court,
647 F.
Supp. 1463 (EDNY 1986), cannot be justified by the interests
asserted by the city.