Majority — Warren C.J.
p. 633WMCA, INC, ET AL. V. LOMENZO, SECRETARY OFSTATE OF NEW YORK, et al .
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK.
No. 20. Argued November 12-13, 1963.—Decided June 15, 1964.
Appellants, including voters in several of New York State’s most
populous counties, filed suit on their own behalf and for others sim-
ilarly situated, against various state and local election officials,
attacking the legislative apportionment system as a violation of the
Fourteenth Amendment. The 1894 New York Constitution pro-
vides for a complex “ratio” system of senatorial apportionment,
with the county as the basic unit, yielding separate and diverse
ratios for “populous” and “less populous” counties, and resulting in
comparatively less representation for the populous counties. Under
the existing apportionment senators representing 40.9% of the
State’s citizens comprised a majority in the Senate, and the most
populous senatorial district had 2.4 times as many citizens as the
least populous one. Gross disparities would remain under the
forthcoming apportionment. Similarly, the provisions for appor-
tioning Assembly seats resulted in establishing three separate cate-
gories of counties with distinctly different population ratios, and
also favored the less populous counties. Under the existing appor-
tionment, assemblymen representing 37.1% of the State’s citizens
constituted a majority in the Assembly and the most populous
assembly district had 11.9 times as many citizens as the least
populous one. Gross disparities would remain under the forth-
coming apportionment. No initiative procedure exists under New
York law and no adequate political remedy for malapportionment
is available. The District Court initially denied relief, holding the
issues non justiciable. This Court, in 370 U. S. 190, vacated that
judgment and remanded for further consideration in the light of
Baker v. Carr, 369 U. S. 186. Thereafter, the District Court dis-
missed the complaint on the merits, concluding that the constitu-
tional provisions were not arbitrary or irrational in giving weight
to “area, accessibility and character of interest” in addition to
population. Held:
p. 6341. The Equal Protection Clause requires that both houses of a
bicameral state legislature be apportioned substantially on an equal
population basis. Reynolds v. Sims, ante, p. 533, followed. P. 653.
2. Neither house of the New York Legislature is now, or will be
when reapportioned on 1960 census figures, apportioned sufficiently
on a population basis to be constitutionally sustainable. Pp. 653-
654.
(a) No matter how sophisticated or complex an apportion-
ment plan may be, it cannot significantly undervalue the votes of
citizens merely because of where they reside. P. 653.
(b) A formula with a built-in bias against voters residing in
the more populous counties cannot be constitutionally condoned.
Pp. 653-654.
3. Using equitable principles, the District Court must determine
whether, in view of the imminence of the 1964 election, that elec-
tion may be held under the existing apportionment provisions, or
whether effectuation of appellants’ rights should not be further
delayed. P. 655.
208 F. Supp. 368, reversed and remanded.
Leonard B. Sand argued the cause for appellants. With
him on the brief was Max Gross.
Irving Galt, Assistant Solicitor General of New York,
argued the cause for appellees. With him on the brief
for the Secretary of State and Attorney General of New
York were Louis J. Lejkowitz, Attorney General of New
York, Sheldon Raab, Assistant Attorney General, and
Barry Mahoney, Deputy Assistant Attorney General.
Francis J. Morgan and Irving Libenson filed a brief for
appellee Berman. Stanley S. Corwin filed a brief for
appellee Griffing.
Bertram Harnett and Jack B. Weinstein filed a brief
for appellee Nickerson in support of appellants. Leo A.
Larkin, George H. P. Dwight and Benjamin Ofjner filed
a brief for appellees Screvane et al., in support of
appellants.
Solicitor General Cox, by special leave of Court, argued
the cause for the United States, as amicus curiae, urging
I
p. 635reversal. With him on the brief were Bruce J. Terris and
Richard W. Schmude.
Briefs of amici curiae were filed by Leo Pfeffer, Melvin
L. Wulf, Jack Greenberg and Robert B. McKay for the
American Jewish Congress et al., and by W. Scott Miller,
Jr. and George J. Long for Schmied, President of the
Board of Aidermen of Louisville, Kentucky.
Mr . Chief Justice Warren delivered the opinion of
the Court.
At issue in this litigation is the constitutional validity,
under the Fourteenth Amendment to the Federal Con-
stitution, of the apportionment of seats in the New York
Legislature.
Appellants initially brought this action on May 1, 1961,
in the Federal District Court for the Southern District of
New York. Plaintiffs below included individual citizens
and voters residing in five of the six most populous New
York counties (Bronx, Kings, Nassau, New York and
Queens), suing in their own behalf and on behalf of all
New York citizens similarly situated. Appellees, sued in
their representative capacities, are various state and local
officials charged with duties in connection with reappor-
tionment and the conducting of state elections. The
complaint claimed rights under the Civil Rights Act, 42
U. S. C. §§ 1983, 1988, and asserted jurisdiction under
28 U. S. C. § 1343 (3).
Plaintiffs below sought a declaration that those provi-
sions of the State Constitution which establish the for-
mulas for apportioning seats in the two houses of the New
York Legislature, and the statutes implementing them,
are unconstitutional since violative of the Fourteenth
Amendment to the Federal Constitution. The complaint
further asked the District Court to enjoin defendants
p. 636from performing any acts or duties in compliance with
the allegedly unconstitutional legislative apportionment
provisions. Plaintiffs asserted that they had no ade-
quate remedy other than the judicial relief sought, and
requested the court to retain jurisdiction until the New
York Legislature, “freed from the fetters imposed by the
Constitutional provisions invalidated by this Court, pro-
vides for such apportionment of the State legislature as
will insure to the urban voters of New York State the
rights guaranteed them by the Constitution of the United
States.”
In attacking the existing apportionment of seats in the
New York Legislature, plaintiffs below stated, more
particularly, that:
“The provisions of the New York State Constitu-
tion,
Article III, §§ 2-5, violate the XIV Amendment
of the Constitution of the United States because the
apportionment formula contained therein results,
and must necessarily result, when applied to the pop-
ulation figures of the State in a grossly unfair weight-
ing of both houses in the State legislature in favor
of the lesser populated rural areas of the state to the
great disadvantage of the densely populated urban
centers of the state. . . .
“As a result of the constitutional provisions chal-
lenged herein, the Plaintiffs’ votes are not as effective
in either house of the legislature as the votes of other
citizens residing in rural areas of the state. Plaintiffs
and all others similarly situated suffer a debasement
of their votes by virtue of the arbitrary, obsolete and
unconstitutional apportionment of the legislature and
they and all others similarly situated are denied the
equal protection of the laws required by the Consti-
tution of the United States.”
The complaint asserted that the legislative apportion-
ment provisions of the 1894 New York Constitution, as
p. 637amended, are not only presently unconstitutional, but
also were invalid and violative of
the Fourteenth Amend-
ment at the time of their adoption, and that “[t]he popu-
lation growth in the State of New York and the shifts of
population to urban areas have aggravated the violation
of Plaintiffs’ rights under the XIV Amendment.”
As requested by plaintiffs, a three-judge District Court
was convened.1 The New York City defendants admitted
the allegations of the complaint and requested the Court
to grant plaintiffs the relief they were seeking. The
remaining defendants moved to dismiss. On January 11,
1962, the District Court announced its initial decision.
It held that it had jurisdiction but dismissed the com-
plaint, without reaching the merits, on the ground that
it failed to state a claim upon which relief could be
granted, since the issues raised were non justiciable.
202
F. Supp. 741. In discussing the allegations made by
plaintiffs, the Court stated:
“The complaint specifically cites as the cause of this
allegedly unconstitutional distribution of state legis-
lative representation the New York Constitutional
provisions requiring that:
“(a) . . the total of fifty Senators established
by the Constitution of 1894 shall be increased by
those Senators to which any of the larger counties
become entitled in addition to their allotment as of
1894, but without effect for decreases in other large
counties . .
“(b) no county may have ‘four or more Senators
unless it has a full ratio for each Senator . . .’ and
p. 638“(c) . . every county except Hamilton shall
always be entitled [in the Assembly] to one member
coupled with the limitation of the entire membership
to 150 members . . . .’ ” 2
Noting that the 1894 Constitution, containing the present
apportionment provisions, was approved by a majority
of the State’s electorate before becoming effective, and
that subsequently the voters had twice disapproved pro-
posals for a constitutional convention to amend the con-
stitutional provisions relating to legislative apportion-
ment, the District Court concluded that, in any event,
there was a “want of equity in the relief sought, or, to
view it slightly differently, want of justiciability, [which]
clearly demands dismissal.”
Plaintiffs appealed to this Court from the District
Court’s dismissal of their complaint. On June 11, 1962,
we vacated the judgment below and remanded for further
consideration in the light of Baker v. Carr, 369 U. S. 186,
which had been decided subsequent to the District Court’s
dismissal of the suit below. 370 U. S. 190. In vacating
and remanding, we stated:
“Our well-established practice of a remand for consid-
eration in the light of a subsequent decision therefore
applies. . . . [W]e believe that the court below
should be the first to consider the merits of the fed-
eral constitutional claim, free from any doubts as to
its justiciability and as to the merits of alleged arbi-
trary and invidious geographical discrimination.” 3
2 202 F. Supp., at 743. All decisions of the District Court, and
also this Court’s initial decision in this litigation, are reported sub
nom. WMCA, Inc., v. Simon.
3 370 U. S., at 191. Shortly after we remanded the case, the Dis-
trict Court ordered defendants to answer or otherwise move in respect
to the complaint. Another of the defendants, a Nassau County
official, joined the New York City defendants in admitting most of
the allegations, and requested the Court to grant plaintiffs the relief
p. 639On August 16, 1962, the District Court, after conduct-
ing a hearing,* 4 dismissed the complaint on the merits,
concluding that plaintiffs had not shown by a preponder-
ance of the evidence that there was any invidious discrim-
ination, that the apportionment provisions of the New
York Constitution were rational and not arbitrary, that
they were of historical origin and contained no improper
geographical discrimination, that they could be amended
by an electoral majority of the citizens of New York, and
that therefore the apportionment of seats in the New
York Senate and Assembly was not unconstitutional.
208 F. Supp. 368. Finding no failure by the New York
Legislature to comply with the state constitutional pro-
which they were seeking. The remaining defendants, presently
appellees, denied the material allegations of the complaint and
asserted varied defenses.
4 At the hearing on the merits a large amount of statistical evidence
was introduced showing the population and citizen population of
New York under various censuses, including the populations of the
State’s 62 counties and the Senate and Assembly districts estab-
lished under the various apportionments. The 1953 apportionment
of Senate and Assembly seats under the 1950 census was shown, and
other statistical computations showing the apportionment to be made
by the legislature under the 1960 census figures, as a result of apply-
ing the pertinent constitutional provisions, were also introduced into
evidence.
The District Court refused to receive evidence showing the effect
of the alleged malapportionment on citizens of several of the most
populous counties with respect to financial matters such as the col-
lection of state taxes and the disbursement of state assistance. The
Court also excluded evidence offered to show that the State Constitu-
tion’s apportionment formulas were devised for the express purpose of
creating a class of citizens whose representation was inferior to that
of a more preferred class, and that there had been intentional dis-
crimination against the citizens of New York City in the designing
of the legislative apportionment provisions of the 1894 Constitution.
Since we hold that the court below erred in finding the New York
legislative apportionment scheme here challenged to be constitution-
ally valid, we express no view on the correctness of the District Court’s
exclusion of this evidence.
729-256 0-65-45
p. 640visions requiring and establishing the formulas for peri-
odic reapportionment of Senate and Assembly seats, the
court below relied on the presumption of constitutionality
attaching to a state constitutional provision and the
necessity for a clear violation “before a federal court of
equity will lend its power to the disruption of the state
election processes . . . .” After postulating a number
of “tests” for invidious discrimination, including the
“[r]ationality of state policy and whether or not the sys-
tem is arbitrary,” “[w]hether or not the present com-
plexion of the legislature has a historical basis,” whether
the electorate has an available political remedy, and
“[g]eography, including accessibility of legislative repre-
sentatives to their electors,” the Court concluded that
none of the relevant New York constitutional provisions
were arbitrary or irrational in giving weight to, in addition
to population, “the ingredient of area, accessibility and
character of interest.” Stating that in New York “the
county is a classic unit of governmental organization and
administration,” the District Court found that the alloca-
tion of one Assembly seat to each county was grounded on
a historical basis. The Court noted that the 1957 vote on
whether to call a constitutional convention was “heralded
as an issue of apportionment” by the then Governor, but
that nevertheless a majority of the State’s voters chose
not to have a constitutional convention convened. The
Court also noted that “if strict population standards were
adopted certain undesirable results might follow such as
an increase in the size of the legislature to such an extent
that effective debate may be hampered or an increase in
the size of districts to such an extent that contacts be-
tween the individual legislator and his constituents may
become impracticable.”5 As a result of the District
II
p. 641Court’s dismissal of the complaint, the November 1962
election of New York legislators was conducted pursuant
to the existing apportionment scheme. A timely appeal
to this Court was filed, and we noted probable jurisdiction
on June 10, 1963. 374 U. S. 802.
Apportionment of seats in the two houses of the New
York Legislature is prescribed by certain formulas con-
tained in the 1894 State Constitution, as amended. Re-
apportionment is effected periodically by statutory pro-
visions,* 6 enacted in compliance with the constitutionally
established formulas. The county is the basic unit of
area for apportionment purposes, except that two sparsely
populated counties, Fulton and Hamilton, are treated as
one. New York uses citizen population instead of total
population, excluding aliens from consideration, for pur-
poses of legislative apportionment. The number of
assemblymen is fixed at 150, while the size of the Senate
is prescribed as not less than 50 and may vary with each
apportionment.7 All members of both houses of the New
York Legislature are elected for two-year terms only, in
even-numbered years.
With respect to the Senate, after providing that that
body should initially have 50 seats and creating 50 sena-
torial districts, the New York Constitution, in Art. Ill,
§ 4, as amended, provides for decennial readjustment of
the size of the Senate and reapportionment of senatorial
“based solely on population, . . . 3% of the state’s area would dom-
inate the rest of New York.”
p. 642seats, beginning in 1932 and every decade thereafter, in
the following manner:
“Such districts shall be so readjusted or altered that
each senate district shall contain as nearly as may
be an equal number of inhabitants, excluding aliens,
and be in as compact form as practicable, and shall
remain unaltered until the first year of the next
decade as above defined, and shall at all times con-
sist of contiguous territory, and no county shall be
divided in the formation of a senate district except
to make two or more senate districts wholly in such
county. . . .
“No county shall have four or more senators
unless it shall have a full ratio for each senator.
No county shall have more than one-third of all the
senators; and no two counties or the territory thereof
as now organized, which are adjoining counties, or
which are separated only by public waters, shall have
more than one-half of all the senators.
“The ratio for apportioning senators shall always
be obtained by dividing the number of inhabitants,
excluding aliens, by fifty, and the senate shall always
be composed of fifty members, except that if any
county having three or more senators at the time of
any apportionment shall be entitled on such ratio
to an additional senator or senators, such additional
senator or senators shall be given to such county in
addition to the fifty senators, and the whole number
of senators shall be increased to that extent.” 8
As interpreted by practice and judicial decision, reap-
portionment and readjustment of senatorial representa-
tion is accomplished in several stages. First, the total
population of the State, excluding aliens, as determined
by the last federal census, is divided by 50 (the minimum
8 N. Y. Const., Art. Ill, § 4.
p. 643number of Senate seats) in order to obtain a so-called
“ratio” figure. The counties on account of which the
size of the Senate might have to be increased are then
ascertained—counties having three or more ratios, i. e.,
more than 6% of the State’s total citizen population each.
Under the existing apportionment, only five counties are
in the 6%-or-more class, four of New York City’s five
counties and upstate Erie County (Buffalo and environs).
Nassau County (suburban New York City) will be added
to this class in the pending reapportionment based on the
1960 census. After those counties that come within the
“populous” category, so defined, have been ascertained,
they are then allocated one senatorial seat for each full
ratio. Fractions of a ratio are disregarded, and each
populous county is thereafter divided into the appropriate
number of Senate districts. In ascertaining the size of
the Senate, the total number of additional seats resulting
from the growth of the populous counties since 1894 is
added to the 50 original seats. And, while the total num-
ber of seats which any of the populous counties has gained
since 1894 is added to the 50 original seats, the number
of seats which any of them has lost since 1894 is not
deducted from the total number of seats to be added.
Currently the New York Senate, as reapportioned in
1953, has 58 seats. From that total, the number allo-
cated to the populous counties is subtracted—27 under
the 1953 apportionment—and the remaining seats—31
under the 1953 scheme—are then apportioned among the
less populous counties. When reapportioned on the
basis of 1960 census figures, the Senate will have 57 seats,
with 26 allotted to the populous counties, as a result of
applying the constitutionally prescribed ratio and the re-
quirement of a full ratio in order for a populous county
to be given more than three Senate seats.
The second stage of applying the senatorial apportion-
ment formula involves the allocation of seats to the less
p. 644Opinion of the Court. 377U.S.
populous counties, i. e., those having less than 6% of the
State’s total citizen population (less than three full
ratios). After the number of Senate seats allocated to
the populous counties (and thus the size of the Senate)
has been determined, a second population ratio figure is
obtained by dividing the number of seats available for
distribution to the less populous counties, 31 under both
the 1950 and 1960 censuses, into the total citizen popu-
lation of the less populous counties. Less populous coun-
ties which are entitled to two or three seats, as determined
by comparing a county’s population with the second ratio
figure thus ascertained, are then divided into senatorial
districts. A less populous county is entitled to three
seats if it has less than three full first ratios, but has more
than three, or has two and a large fraction, second ratios.
Since the first ratio is significantly larger than the second,
a county can have less than three first ratios but more
than three second ratios. Finally, counties with substan-
tially less than one second ratio are combined into
multicounty districts.
The result of applying this complicated apportionment
formula is to give the populous counties markedly less
senatorial representation, when compared with respective
population figures, than the less populous counties.
Under the 1953 apportionment, based on the 1950 census,
a senator from one of the less populous counties repre-
sented, on the average, 195,859 citizens, while a senator
from a populous county represented an average of 301,178.
The constitutionally prescribed first ratio figure was
284,069, while the second ratio was, of course, only
195,859. Under the pending apportionment based on the
1960 census, the first ratio figure is 324,816, and the aver-
age population of the senatorial districts in the populous
counties will be 366,128. On the other hand, the second
ratio, and the average population of the senatorial dis-
tricts in the less populous counties, is only 216,822.
p. 645Thus, a citizen in a less populous county had, under the
1953 apportionment, over 1.5 times the representation,
on the average, of a citizen in a populous county, and,
under the apportionment based on the 1960 census, this
ratio will be about 1.7-to-l.9
The 1894 New York Constitution also provided for an
Assembly composed of 150 members, in Art. Ill, § 2.
Under the formula prescribed by Art. Ill, § 5, of the New
York Constitution, each of the State’s 62 counties, except
Hamilton County which is combined with Fulton County
for purposes of Assembly representation, is initially given
one Assembly seat. The remaining 89 seats are then
allocated among the various counties in accordance with
a “ratio” figure obtained by dividing the total number
of seats, 150, into the State’s total citizen population.
Applying the constitutional formula, a county whose pop-
ulation is at least lx/2 times this ratio (1% of the total
citizen population) is given one additional assemblyman.
The remaining Assembly seats are then apportioned
among those counties whose citizen populations total two
or more whole ratios, with any remaining seats being allo-
cated among the counties on the basis of “highest re-
mainders.” Finally, those counties receiving more than
one seat are divided into the appropriate number of
Assembly districts. In allocating 61 of the 150 Assembly
seats on a basis wholly unrelated to population, and in
I establishing three separate categories of counties for the
I apportionment of Assembly representation, the constitu-
I tional provisions relating to the apportionment of As-
I sembly seats plainly result in a favoring of the less popu-
■ lous counties. Under the new reapportionment based on
■ For an extended discussion of the apportionment of seats in the9
■ New York Senate under the pertinent state constitutional provisions,
■ see Silva, Apportionment of the New York Senate, 30 Ford. L. Rev.
■ 595 (1962). See also Silva, Legislative Representation—With Special
■ Reference to New York, 27 Law & Contemp. Prob. 408 (1962).
p. 6461960 census figures, the smallest 44 counties will each
be given one seat for an average of 62,765 citizen inhab-
itants per seat, three counties will receive two seats each,
with a total of six assemblymen representing an average
of 93,478 citizen inhabitants, and the 14 most populous
counties will be given the remaining 100 seats, resulting
in an average representation figure of 129,183 citizen
inhabitants each.10 11
Although the New York Legislature has not yet reap-
portioned on the basis of 1960 census figures,11 the out-
lines of the forthcoming apportionment can be predicted
with assurance. Since the rules prescribed in the New
York Constitution for apportioning the Senate are so
explicit and detailed, the New York Legislature has little
discretion, in decennially enacting implementing statutory
reapportionment provisions, except in determining which
of the less populous counties are to be joined together
in multicounty districts and in districting within counties
having more than one senator. Similarly, the legislature
has little discretion in reapportioning Assembly seats.12
10 For a thorough discussion of the apportionment of seats in the
New York Assembly pursuant to the relevant state constitutional
provisions, see Silva, Apportionment of the New York Assembly,
31 Ford. L. Rev. 1 (1962).
p. 647A number of other rather detailed rules, some mandatory
and some only directive, are included in the constitutional
provisions prescribing the system for apportioning seats in
the two houses of the New York Legislature, and are set
out in Art. Ill, §§ 2-5, of the New York Constitution.* 13
When the New York Legislature was reapportioned in
1953, on the basis of 1950 census figures, assemblymen
- representing 37.1% of the State’s citizens constituted a
majority in that body, and senators representing 40.9%
of the citizens comprised a majority in the Senate. Under
the still effective 1953 apportionment, applying 1960
census figures, assemblymen representing 34.7% of the
citizens constitute a majority in the Assembly, and sen-
ators representing 41.8% of the citizens constitute a
majority in that body. If reapportionment were carried
out under the existing constitutional formulas, applying
1960 census figures, 37.5% of the State’s citizens would
cannot be divided into Assembly districts. But, with respect to
counties given more than one Assembly seat, the New York Con-
stitution, Art. Ill, §5, provides: “In any county entitled to more
than one member [of the Assembly], the board of supervisors, and
in any city embracing an entire county and having no board of
supervisors, the common council, or if there be none, the body exer-
cising the powers of a common council, shall . . . divide such counties
into assembly districts as nearly equal in number of inhabitants,
excluding aliens, as may be . . . .”
p. 648reside in districts electing a majority in the Assembly,
and 38.1% would live in areas electing a majority of the
members of the Senate. When the State was reappor-
tioned in 1953 on the basis of the 1950 census, the most
populous Assembly district had 11.9 times as many citi-
zens as the least populous one, and a similar ratio in the
Senate was about 2.4-to-l. Under the current apportion-
ment, applying 1960 census figures, the citizen popula-
tion-variance ratio between the most populous and least
populous Assembly districts is about 21-to-l, and a simi-
lar ratio in the Senate is about 3.9-to-l. If the Assembly
were reapportioned under the existing constitutional
formulas, the most populous Assembly district would
have about 12.7 times as many citizens as the least pop-
ulous one, and a similar ratio in the Senate would be about
2.6-to-l.
According to 1960 census figures, the six counties where
the six individual appellants reside had a citizen popu-
lation of 9,129,780, or 56.2% of the State’s total citizen
population of 16,240,786. They are currently repre-
sented by 72 assemblymen and 28 senators—48% of
the Assembly and 48.3% of the Senate. When the legis-
lature reapportions on the basis of the 1960 census figures,
these six counties will have 26 Senate seats and 69
Assembly seats, or 45.6% and 46%, respectively, of the
seats in the two houses. The 10 most heavily populated
counties in New York, with about 73.5% of the total
citizen population, are given, under the current appor-
tionment, 38 Senate seats, 65.5% of the membership of
that body, and 93 Assembly seats, 62% of the seats in
that house. When the legislature reapportions on the
basis of the 1960 census figures, these same 10 counties
will be given 37 Senate seats and 92 Assembly seats,
64.9% and 61.3%, respectively, of the membership of
the two houses. The five counties comprising New
York City have 45.7% of the State’s total citizen popu-
p. 649lation, and are given, under the current apportionment,
43.1% of the Senate seats and 43.3% of the seats in the
Assembly. When the legislature reapportions on the
basis of the 1960 census figures, these same counties will
be given 36.8% and 37.3%, respectively, of the member-
ship of the two houses.
Under the existing senatorial apportionment, applying
1960 census figures, Suffolk County’s one senator rep-
resents a citizen population of 650,112, and Nassau
County’s three senators represent an average of 425,267
citizens each. The least populous senatorial district, on
the other hand, comprising Saratoga, Warren, and Essex
Counties, has a total population of only 166,715.14 Under
the forthcoming reapportionment based on the 1960
census, Nassau County will again be allocated only three
Senate seats, with an average population of 425,267, while
the least populous senatorial district, which will probably
comprise Putnam and Rockland Counties, will have a
citizen population of only 162,840.15 Onondaga County,
with a total citizen population of 414,770, less than the
average population of each Nassau County district, will
nevertheless be given two Senate seats. Because of the
effect of the full-ratio requirement applicable only to the
populous counties, Nassau County, despite the fact that
its citizen population increased from 655,690 to 1,275,801,
p. 650will not obtain a single additional senatorial seat as a
result of the reapportionment based on 1960 census
figures. And Monroe County, with a citizen population
of 571,029, since not having more than 6% of the State’s
total citizen population, will have the same number of
senators under the new apportionment, three, as Nassau
County, although it has less than half that county’s popu-
lation. New York City’s 20 senators will represent an
average citizen population of 360,193, while the 15 multi-
county senatorial districts to be created upstate will have
an average of only 207,528 citizens per district. Because
of the operation of the full-ratio rule with respect to
counties having more than 6% of the State’s total citizen
population each, the unrepresented remainders (above a
full first ratio but short of another full first ratio which
is required for an additional Senate seat) in three of the
urban counties will be as follows: Nassau, 301,353; New
York, 284,805; and Kings, 244,798. Thus, over 800,000
citizens will not be counted in the apportionment of Sen-
ate seats, even though the unrepresented remainders in
two of these three counties equal or exceed the statewide
average population of 284,926 citizens per district. Fur-
thermore, the effect of the rule requiring an increase in
the number of Senate seats because of the entitlement of
populous counties to added senatorial representation, cou-
pled with the failure to reduce the size of the Senate
because of reductions in the number of seats to which a
populous county is entitled (as compared with its sena-
torial representation in 1894), is that the comparative
voting power of the populous counties in the Senate
decreases as their share of the State’s total population
increases.
With respect to the Assembly, the six assemblymen
currently elected from Nassau County represent an aver-
age citizen population of 212,634, and one of that county’s
current Assembly districts has a citizen population of |
p. 651314,721. Suffolk County’s three assemblymen presently
represent an average of 216,704 citizens. On the other
hand, the least populous Assembly district, Schuyler
County, has a citizen population, according to the 1960
census, of only 14,974, and yet, in accordance with the
constitutional formula, is allocated one Assembly seat.16
Under the new apportionment, Schuyler County will
again be given one Assembly seat, while one projected
Monroe County district will have a citizen population of
190,343 and an Assembly district in Suffolk County will
have over 170,000 citizens.17 Additionally, the average
population of the 54 Assembly districts in New York
City’s four populous counties will be in excess of 132,000
citizens each.
Under the 1953 apportionment, based on 1950 census
figures, the most populous Assembly district, in Onondaga
County, had a citizen population of 167,226, while the
least populous district was that comprising Schuyler
County, with only 14,066 citizens. In the Senate, the
most populous districts were the four in Bronx County,
averaging 344,545 citizens each, while the least populous
district had a citizen population of only 146,666.
No adequate political remedy to obtain relief against
alleged legislative malapportionment appears to exist in
p. 652New York.18 No initiative procedure exists under New
York law. A proposal to amend the State Constitution
can be submitted to a vote by the State’s electorate only
after approval by a majority of both houses of two suc-
cessive sessions of the New York Legislature.19 A ma-
jority vote of both houses of the legislature is also re-
quired before the electorate can vote on the calling of a
constitutional convention.20 Additionally, under New
York law the question of whether a constitutional con-
vention should be called must be submitted to the elec-
torate every 20 years, commencing in 1957.21 But even
if a constitutional convention were convened, the same
alleged discrimination which currently exists in the ap-
portionment of Senate seats against each of the counties
having 6% or more of a State’s citizen population would
be perpetuated in the election of convention delegates.22
And, since the New York Legislature has rather consist-
ently complied with the state constitutional requirement
for decennial legislative reapportionment in accord-
ance with the rather explicit constitutional rules, enact-
III
p. 653ing effective apportionment statutes in 1907, 1917, 1943,
and 1953, judicial relief in the state courts to remedy the
alleged malapportionment was presumably unavailable.23
In Reynolds v. Sims, ante, p. 533, decided also this
date, we held that the Equal Protection Clause requires
that seats in both houses of a bicameral state legislature
must be apportioned substantially on a population basis.
Neither house of the New York Legislature, under the
state constitutional formulas and the implementing stat-
utory provisions here attacked, is presently or, when
reapportioned on the basis of 1960 census figures, will be
apportioned sufficiently on a population basis to be con-
stitutionally sustainable. Accordingly, we hold that the
District Court erred in upholding the constitutionality of
New York’s scheme of legislative apportionment.
We have examined the state constitutional formulas
governing legislative apportionment in New York in a
detailed fashion in order to point out that, as a result
of following these provisions, the weight of the votes of
those living in populous areas is of necessity substantially
diluted in effect. However complicated or sophisticated
an apportionment scheme might be, it cannot, consistent
with the Equal Protection Clause, result in a significant
undervaluation of the weight of the votes of certain of a
State’s citizens merely because of where they happen to
reside. New York’s constitutional formulas relating to
p. 654legislative apportionment demonstrably include a built-in
bias against voters living in the State’s more populous
counties. And the legislative representation accorded to
the urban and suburban areas becomes proportionately
less as the population of those areas increases. With the
size of the Assembly fixed at 150, with a substantial num-
ber of Assembly seats distributed to sparsely populated
counties without regard to population, and with an addi-
tional seat given to counties having 1% population ratios,
the population-variance ratios between the more pop-
ulous and the less populous counties will continually in-
crease so long as population growth proceeds at a dis-
parate rate in various areas of the State. With respect
to the Senate, significantly different population ratio fig-
ures are used in determining the number of Senate seats
to be given to the more populous and the less populous
counties, and the more populous counties are required
to have full first ratios in order to be entitled to addi-
tional senatorial representation. Also, in ascertaining
the size of the Senate, the number of seats by which the
senatorial representation of the more populous counties
has increased since 1894 is added to 50, but the number
of Senate seats that some of the more populous counties
have lost since 1894 is not subtracted from that figure.
Thus, an increasingly smaller percentage of the State’s
population will, in all probability, reside in senatorial dis-
tricts electing a majority of the members of that body.
Despite the opaque intricacies of New York’s constitu-
tional formulas relating to legislative apportionment,
when the effect of these provisions, and the statutes im-
plementing them, on the right to vote of those individuals
living in the disfavored areas of the State is considered,
we conclude that neither the existing scheme nor the
forthcoming one can be constitutionally condoned.
We find it inappropriate to discuss questions relating
to remedies at the present time, beyond what we said in
p. 655our opinion in Reynolds.24 Since all members of both
houses of the New York Legislature will be elected in
November 1964, the court below, acting under equitable
principles, must now determine whether, because of the
imminence of that election and in order to give the New
York Legislature an opportunity to fashion a constitu-
tionally valid legislative apportionment plan, it would be
desirable to permit the 1964 election of legislators to be
conducted pursuant to the existing provisions, or whether
under the circumstances the effectuation of appellants’
right to a properly weighted voice in the election of state
legislators should not be delayed beyond the 1964 elec-
tion. We therefore reverse the decision below and re-
mand the case to the District Court for further proceed-
ings consistent with the views stated here and in our
opinion in Reynolds v. Sims.
It is so ordered.
[For dissenting opinion of Mr . Just ice Harlan , see
ante, p. 589.]
[For dissenting opinion of Mr . Justice Stew art , see
post, p. 744.]
Statutes and regulations cited