Petition Cohen v Cuomo

8/2/2019 Petition Cohen v Cuomo

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

___________________________________________x

DANIEL MARKS COHEN; RAQUEL BATISTA; Index No. 12-10PURVA BEDI; TODD BREITBART; RAYMOND W.ENGEL; JACQUELINE G. FORRESTAL;PATRICK L. FURLONG; ANDREW KULYK;JERRY C. LEE; IRENE VAN SLYKE; and SENATOR MARTIN MALAVÉ DILAN, PETITION

Petitioners,

-against-

GOVERNOR ANDREW M. CUOMO; LIEUTENANTGOVERNOR AND PRESIDENT OF THE SENATEROBERT J. DUFFY; SENATE MAJORITYLEADER AND PRESIDENT PRO TEMPORE OFTHE SENATE DEAN G. SKELOS; SPEAKER OFTHE ASSEMBLY SHELDON SILVER; and THE NEW YORK STATE BOARD OF ELECTIONS,

Respondents. ___________________________________________x

Petitioners Daniel Marks Cohen, Raquel Batista, Purva Bedi, Todd B

Raymond W. Engel, Jacqueline G. Forrestal, Patrick L. Furlong, Andrew Kulyk, Jer

Irene Van Slyke, and Senator Martin Malavé Dilan, by and through their attorneys,

Wang LLP, for their Complaint hereby allege as follows:

NATURE OF THE PETITION

1. This petition pursuant to Unconsolidated Laws § 4221 seeks a declar



forbids the Legislature from increasing the size of the Senate to 63 seats in 2012. In

doing so, the Legislature failed to apply the Senate size formula prescribed in Sectio

consistently, rationally, or in good faith.

2. The Constitution of 1894 created a 50-seat Senate. The third paragra

Section 4 prescribes a mathematical formula for expanding the size of the Senate in

years based on county population growth. Fixing the size of the Senate in the Const

providing a specific mathematical formula for determining when and how to expand

the Senate in response to future population growth, was designed to make that judgm

objective and to remove it from the unconstrained hands of political actors.

3. The mathematical formula prescribed in Section 4 requires comparin

populations of the State’s most populous counties at the time of the most recent Cen

having 6% or more of the State’s total population) with (ii) the populations of such c

1894. The first step is to divide the current State population by 50 (the number of S

districts in 1894). This quotient is called the “ratio” for that year. Next, one determ

number of “full ratios” for each county above the 6% threshold by dividing each suc

current population by the “ratio” for the current year and dropping the remainder, ho

The current number of “full ratios” for each of these populous counties is then comp

number of Senate districts that such county contained in 1894. If the county’s curre

“full ratios” is greater than the number of Senate districts that the county contained i

the size of the Senate is increased by the difference between those two numbers.



constitutionally prescribed mathematical formula because certain present-day count

exist in 1894. For example, in 1894 the territory now organized as Nassau County w

Queens. Thus, in order to compare present-day apples to 1894 apples with respect t

Queens/Nassau as Section 4 requires, one must combine present-day Queens and N

treat them as a unit, and one must compare that combined present-day unit to Queen

existed in 1894.

5. There are two ways in which the total current number of “full ratios”

and Queens collectively might be calculated, the key difference being when in the p

rounds down the fractional remainders: (a) one could first combine the current popu

Queens and Nassau, then divide the combined population by the “ratio” number, and

the combined number of “ratios” down to the nearest-lower whole number (the “Co

Rounding Down Method” or “Method A”); or (b) one could first identify the individ

of “full ratios” for each county by dividing the individual populations of each by the

number, round the number of “ratios” in each individual county down to the nearest

number, and then add together the two rounded-down counts of “full ratios” (the “R

Before Combining Method” or “Method B”).

6. Sometimes these two methods lead to the same result, but sometimes

For example, the 2010 Census revealed that Queens has a population of 2,230,722 a

Nassau has a population of 1,339,532. The “ratio” this year is 387,562 (the total Ne

population of 19,378,102 divided by 50). If one uses Method A, then the populatio



first divided by the “ratio,” which yields 5.76 “ratios” for Queens (2,230,722 divide

387,562) and 3.46 “ratios” for Nassau (1,339,532 divided by 387,562), those “ratios

rounded down to 5 and 3, respectively, and the rounded-down “full ratios” are then

yield 8 “full ratios.” The difference – 9 “full ratios” versus 8 – means that the Com

Rounding Down Method would yield, based on these numbers, one more Senate sea

Round Down Before Combining Method.

7. During the 1972, 1982, and 1992 reapportionments, the Combine Be

Rounding Down Method (Method A) was used consistently. In 2002, however, in a

unexpected about-face, the New York State Legislative Task Force on Demographi

and Reapportionment (“LATFOR”) reversed this longstanding interpretation of Sec

deciding to use the Round Down Before Combining Method (Method B) for the firs

modern history. LATFOR attempted to justify this departure from decades of prece

publishing a memorandum authored by the attorney for the Senate’s Republican Ma

announced, with little legal analysis, that the Round Down Before Combining Meth

B) “is more faithful to the Constitution.” No court ever addressed the legality of the

Legislature’s decision to shift from Method A – which was expressly blessed by the

Court of Appeals in 1972 and consistently used by the Legislature for more than 30

Method B in 2002.

8. Moreover, internal documents that LATFOR was subsequently comp

produce in litigation revealed that the Legislature switched from Method A to Meth



majority power that the State’s political demographics no longer supported. These

confirm that the decision to switch methodologies in 2002 was made without any co

of the proper interpretation or application of Section 4.

9. But even though the Legislature’s change in counting methodologies

a thinly-veiled political ploy, at least the Legislature had seemingly committed, onc

based on ostensibly thoughtful legal reasoning, to use the Round Down Before Com

Method (Method B), and not the Combine Before Rounding Down Method (Method

the former “is more faithful to the Constitution.” Or so the public was led to believe

10. Yet in this redistricting cycle, LATFOR announced another sudden d

from its previous practice, inventing an even more novel and bizarre interpretation o

Given the population figures revealed in the 2010 Census, there are two places wher

of methodology affects the size of the Senate: Queens/Nassau (which must be com

compare those counties to 1894 because Nassau did not exist at the time) and Richm

(which must be combined because those counties were combined in a single Senate

1894). Using the Round Down Before Combining Method (Method B) – to which t

Legislature switched in 2002 because it is “more faithful to the Constitution” – wou

districts this year, the same number as in 2002.

11. The Legislature apparently does not like that number. In a memoran

published on LATFOR’s website on January 6, 2012, the Republican Majority’s cou

same attorney who authored the 2002 memorandum – instructed it to use the Round



2012 Senate by applying two different methodologies to combining counties – includ

methodology that they expressly rejected in 2002 – within the very same reapportion

The Legislature adopted LATFOR’s recommendation and passed S. 6696 and A. 95

included a 63-seat plan for the Senate, on March 14, 2012. The Governor signed th

codified as Chapter 16, on March 15, 2012.

12. This plainly unconstitutional approach, manufactured for the first tim

round of redistricting, yields 63 seats – the number of districts that the Republican M

concluded would best position them to further their partisan attempt to maintain the

control of the Senate.

13. Even assuming that the Legislature has a modicum of discretion to de

which counting methodology is more faithful to the Constitution, Section 4 requires

decision be exercised in a manner that is rational, evenhanded, and consistent. The

has no discretion to manipulate the Constitution by changing their counting method

every Census to suit their ephemeral partisan purposes, let alone to use two differen

methodologies within the same reapportionment . Because Section 4 governs the fu

structure of one of the State’s most important political institutions, it contains immu

rules that each political party is bound to respect. Were it otherwise, then Section 4

present an open invitation for recurring partisan manipulation during every redistric

14. The Legislature’s methodological inconsistency, exacerbated by its t

partisan manipulation of Section 4, renders unconstitutional the addition of a 63rd d



received the Census data, LATFOR had all the information it needed to decide whet

required the size of the Senate to be increased from 62 seats to 63. During the publ

process – which began in July 2011 and concluded in November 2011 – LATFOR f

inform the public that it had decided to adopt a 63-seat plan. Indeed, LATFOR did

this decision until January 6, 2012, by which time it already had held all 14 of the p

hearings that supposedly had been convened to afford the public the opportunity to

views on redistricting alternatives. During these pre-announcement hearings, memb

public understandably focused their comments and suggestions on 62-seat redistrict

alternatives. Indeed, when asked during the hearings whether LATFOR might be co

increasing the size of the Senate, LATFOR Co-Chairman Senator Michael F. Nozzo

repeatedly responded by stating that LATFOR would not consider that issue until th

weighed in on the number of Senators it wanted (as if public opinion has anything to

objective population-based mathematical formula prescribed in Section 4). By faili

the public of its decision until all 14 of the hearings were over, LATFOR ensured th

citizens would have no meaningful opportunity to participate in the redistricting pro

15. No matter what one thinks about the relative merits of Method A and

there is no constitutional path that leads to a 63-seat Senate in 2012. Consistently u

B (which the Legislature previously concluded “is most faithful to the Constitution”

seats. Consistently using the methodology that the Legislature used in 1972, 1982,

likewise yields 62 seats. The Legislature’s novel, irrational, legally unprincipled, p



16. This disputed issue of constitutional law must be decided extraordin

In light of the political calendar, and because the Legislature dragged its feet by wai

than a year after the Census data was released to enact its constitutionally infirm pla

deadline for finalizing and enacting a lawful reapportionment plan is rapidly approa

Accordingly, prompt resolution of this dispute is essential to the orderly administrat

2012 state legislative elections.

17. For these reasons and those that follow, Petitioners respectfully ask t

declare that increasing the size of the Senate to 63 seats violates Section 4 and to enj

Respondents from implementing or enforcing Chapter 16.

JURISDICTION AND VENUE

18. This Court has jurisdiction pursuant to CPLR § 301 et seq., CPLR §

III, section 5 of the Constitution, and Unconsolidated Laws § 4221.

19. Venue is proper in this County pursuant to CPLR. §§ 503(a), CPLR 5

Article III, section 5 of the Constitution, and Unconsolidated Laws § 4221.

PARTIES

20. Petitioner Daniel Marks Cohen is a citizen and resident of New York

residing at 467 Central Park West, Apartment 2D, New York, New York 10025.

21. Petitioner Raquel Batista is a citizen and resident of Bronx County, N

Her address is 2104 Clinton Avenue, #2A, Bronx, New York 10457.

22. Petitioner Purva Bedi is a citizen and resident of New York County.



24. Petitioner Raymond W. Engel is a citizen and resident of Albany Cou

at 40 North Grandview Terrace, Voorheesville, NY 12186.

25. Petitioner Jacqueline G. Forrestal is a citizen and resident of Queens

York. Her address is 82-36 166th Street, Jamaica, New York 11432.

26. Petitioner Patrick L. Furlong is a resident of Albany County. His add

Walnut Lane, Slingerlands, New York 12159.

27. Petitioner Andrew Kulyk is a citizen and resident of Erie County. H

200 Delaware Avenue, Unit 1502, Buffalo, New York 14202.

28. Petitioner Jerry C. Lee is a citizen and resident of Nassau County. H

2182 Baylis Avenue, Elmont, New York 11003.

29. Petitioner Irene Van Slyke is a United States citizen and a resident of

County. She resides at 206 Bergen Street, Brooklyn, New York 11217.

30. Petitioner Senator Martin Malavé Dilan is a member of the New Yor

representing the 17th District, which is comprised of several North Brooklyn comm

serves as the Senate Minority Conference’s appointee to LATFOR. Senator Dilan h

Albany and at 786 Knickerbocker Avenue, Brooklyn, New York.

31. Respondent Andrew M. Cuomo is the Governor of the State of New

being sued in his official capacity.

32. Respondent Robert J. Duffy is the Lieutenant Governor of the State o

and President of the New York State Senate. He is being sued in his official capaci



Albany and at 55 Front Street, Rockville Centre, New York. He is being sued in his

capacity.

34. Respondent Sheldon Silver is the Speaker of the New York State Ass

representing the 64th District. Speaker Silver has offices in Albany and at 250 Broa

2307, New York, New York. He is being sued in his official capacity.

35. Respondent the New York State Board of Elections is the agency res

administering and enforcing all laws relating to elections in New York State. Its pri

business office is located at 40 Steuben Street, Albany, New York.

FACTUAL ALLEGATIONS

A. The Political Compromise Embodied in the Formula Prescribed Article III, Section 4 of the Constitution

36. During the 1894 Constitutional Convention (the “Convention”), ther

debate about how future Senate reapportionments would impact the balance of powe

the fast-growing metropolises of New York City and Brooklyn (which had not yet m

the less populous upstate counties.

37. There were two major factions: Democrats, whose political base wa

downstate counties of New York and Kings; and Republicans, who generally repres

sparsely populated (and territorially much larger) upstate districts (some of which unapportionment were comprised of as many as eight whole counties).

38. Several proposals were introduced during the Convention that would



Delegates to the Convention from New York and Kings Counties asserted that the a

such proposals would unfairly dilute the legitimate influence of the residents of thos

counties.

39. In the end, the Delegates to the Convention agreed to a specific comp

the one hand, Senate districts would be apportioned largely based upon population (

other non-population-based rules, such as that no county could have more than one t

total number of Senate districts). But on the other hand, if the largest counties conti

more rapidly than the smaller counties, and if this relative growth reached a prescrib

mathematical threshold, then the largest counties would receive additional Senate se

size of the Senate would be increased by that number as well.

40. A simple hypothetical illustrates the mathematical principle animatin

political compromise. Suppose that County X contained 5 out of 50 Senate districts

And suppose that County X grew so rapidly between 1894 and 1920, relative to the

counties that, based on population, it would be entitled to 10 out of 50 seats. The co

animating the political compromise embodied in Section 4 is that under such circum

County X would be allocated the 5 additional districts to which it was entitled based

population, but the size of the Senate would be increased by 5 seats as well. Thus, i

controlling 10 districts out of 50, County X would control 10 districts out of 55. In

County X would get 5 more seats, but it would not “take” these seats from the less p

counties.



the importance of ensuring that the fastest-growing counties did not become unduly

dominant.

42. The relevant language in Section 4 provides that:

[T]he Senate shall always be comprised of fifty members, except thatany county having three of more senators at the time of any [future]apportionment shall be entitled on such ratio to an additional senatorsenators, such additional senator or senators shall be given to such co

in addition to the fifty senators, and the whole number of senators shincreased to that extent.

NY Const. Art III, §4.

43. The Court of Appeals has interpreted the language in Section 4 sever

since 1894. Those decisions establish the procedure that Section 4 requires in deter

whether and the extent to which to increase the size of the Senate.

44. First, the total citizen population of the State, as determined by the m

Census, is divided by 50 – the minimum number of Senate seats. This quotient prod

called “ratio” figure for that year.

45. Counties having three or more “full ratios” – that is, more than 6% o

total citizen population – are then allotted one Senate district for each “full ratio.” T

of districts allotted to each county over the 6% threshold is then compared with the

districts such county was allotted in 1894. The increase, if any, is then added to thedistricts to yield the “whole number” of districts in the new Senate. Decreases, if an

disregarded.



47. Section 4, at it was originally ratified in 1894, required that Senate di

apportioned in part based upon population but in part based upon non-population, c

rules.

48. For example, the second paragraph of Section 4 provided that no cou

have more than one third of the total number of Senate districts (even if it had signif

than one third of the total population of the State), and that no two adjoining countie

counties separated only by public waters, such as New York and Kings) could collec

more than one half of the total number of Senate districts (even if they collectively h

significantly more than one half of the total population of the State).

49. These non-population, county-based rules became unconstitutional w

person, one vote principle emerged during the 1960s and required states to apportion

districts based upon population.

50. The New York Court of Appeals recognized in Matter of Orans, 15 N

(1965), that strict application of the non-population, county-based apportionment ru

and second paragraphs of Section 4 would violate the one person, one vote principle

Court held that the third paragraph of Section 4 still prescribes the method for determ

total number of Senate districts, although it would no long affect the apportionment

districts among the counties.

B. The Two Possible Counting Methodologies for Combining Count

Two Areas that Matter



52. For example, the area that in 1894 was known as Queens County now

with only insubstantial differences, the area that currently contains both Queens and

Counties.

53. Because Section 4 requires an apples-to-apples comparison of the nu

ratios” of population in the most populous counties relative to the number of district

counties had in 1894, one must combine the populations of present-day Queens and

order to make this comparison.

54. There are two different ways in which one could calculate the total cu

number of “full ratios” for a county combination such as Queens/Nassau: the Comb

Rounding Down Method (first combining the current populations of the counties, th

the combined population by the “ratio” number, and then rounding the number of “r

to the nearest-lower whole number of “full ratios”) (Method A); or (b) the Round D

Combining Method (first dividing the individual populations of each by the “ratio”

rounding each individual quotient down to the nearest-lower whole number of “full

then adding together the two rounded-down numbers of “full ratios”) (Method B).

55. Sometimes the choice of methodology affects the outcome (as it does

The two methods yield different results when the fractional remainders of each indiv

county’s “ratios” add up to more than one. To use the example illustrated in the intr

section, based on the 2010 Census results, this year Queens has 5.76 “ratios,” and N

3.46 “ratios.” The .76 and .46 fractional remainders, when combined, add up to mo



56. Section 4 does not expressly provide which method should be used.

57.

There are two different sets of counties where the difference between

Method A and Method B sometimes affects the size of the Senate: Queens/Nassau

Richmond/Suffolk. These two areas both (i) yield more than three full ratios (6% o

State population) and thus are relevant to the Senate size calculus and (ii) for somew

reasons, require the combination of county populations in order to perform the comp

required by Section 4.

58. As will be explained in the following subsections, each of these areas

combination of county populations (and thus the choice between Method A and Met

somewhat different reasons. But none of the differences between these areas justifi

them differently when performing the county combination math required by Section

(i) Queens/Nassau

59. As previously discussed, the area that in 1894 was known as Queens

includes, with only insubstantial differences, the area that currently contains both Qu

Nassau Counties.

60. Thus, in order to perform an apples-to-apples comparison of the num

ratios” in the Queens/Nassau area today and the number of Senate districts in the are

Queens County comprised in 1894, one must combine either the populations of pres

Queens and Nassau Counties (Method A) or their individual “full ratios” (Method B



(ii) Richmond/Suffolk

61.

The Richmond/Suffolk combination presents a different twist.62. Because Richmond and Suffolk Counties both existed in 1894 and bo

today, it is easy to compare the number of “ratios” in present-day Richmond to the n

“ratios” that Richmond had in 1894. The same is true for Suffolk.

63. But it is impossible to compare the number of present-day “ratios” in

to the number of Senate districts that Richmond had in 1894, which is the comparis

Section 4 requires. This is so because Richmond, by itself, did not have any Senate

1894. Nor did Suffolk. Instead, Richmond and Suffolk shared a single Senate distr

64. The identical problem arises in making the comparison for Suffolk C

65. Because neither Richmond nor Suffolk had its own Senate district in

only way to perform the comparison required by Section 4 is to combine present-day

and Suffolk and compare the number of “full ratios” in that combined area with the

district that these two counties shared in 1894.

66. Because Richmond and Suffolk must be combined in order to perform

comparison required by Section 4, one must decide whether to use Method A or Me

67. Regardless of what one thinks of the relative merits of Method A and

there is no basis for using one method for the Richmond/Suffolk combination and an

method for the Queens/Nassau combination. As described above, these areas requir

combinations for somewhat different reasons. But there is nothing about these diffe



C. The Use of the “Combine Before Rounding Down Method” (Met

1972, 1982, and 1992

68. It is not always possible to ascertain whether the Legislature has used

or Method B because sometimes the two methods yield the same results.

69. We know, however, that the Legislature used Method A in 1972 beca

appropriateness of using that method was litigated before and decided by the Court

Schneider v. Rockefeller , 31 N.Y.2d 420 (1972).

70. In Schneider , the Court held that the Legislature was permitted to use

Combine Before Rounding Down Method (Method A), and was not constitutionally

use the Round Down Before Combining Method (Method B), so long as the Legisla

made a good-faith effort to comply with the mandate of the equal population princip

71. During the 1972, 1982, and 1992 reapportionments, the Legislature u

Combine Before Rounding Down Method (Method A) when combining counties. (

Master who was appointed by a federal court in 1982 used Method A as well in the

redistricting plan he prepared for possible use by the federal court.)

72. To be sure, in some instances during those cycles, the difference betw

Method A and Method B with respect to various county combinations made no diffe

respect to the size of the Senate. But where the two methods yielded different Sena

because of the county combinations in any of those areas, Method A was consistentl

1972, 1982, and 1992.



74. LATFOR held public redistricting hearings during the spring and sum

2001. The purpose of those hearings was to provide the public with the opportunityopinions, prior to LATFOR drawing an initial redistricting proposal, regarding what

redistricting plan should look like.

75. Because the Legislature had used the Combine Before Rounding Dow

(Method A) during the 1972, 1982, and 1992 reapportionments, it was generally und

during the hearing process that the Legislature would use the same methodology in

76. Based upon the reasonable assumption that the Legislature would per

Senate size calculation in 2002 the same way the calculation had been performed in

and 1992, it was generally understood that the size of the Senate in 2002 would be 6

same as it had been in 1982 and 1992) because that is the number that would have re

applying the decades of settled practice prior to 2002. Indeed, LATFOR’s website

stated throughout 2001 and early 2002 that the size of the Senate would remain 61 d

77. Accordingly, during the LATFOR hearing process throughout 2001

2002, the public presented LATFOR with proposed 61-seat Senate redistricting plan

78. In March 2002, however, LATFOR announced unexpectedly that the

Senate would be increased to 62 seats. LATFOR made this announcement by posti

website a March 7, 2002 memorandum written by the attorney for the Senate Repub

Michael A. Carvin (the “2002 Carvin Memorandum”). The 2002 Carvin Memorand

attached hereto as Exhibit 1.



80. First, the 2002 Carvin Memorandum explained that the Bronx would

counted as it had been in 1972, 1982, and 1992. The Bronx presents a unique comp because, whereas Nassau County is wholly contained within the area that in 1894 w

County, Bronx County occupies the area that in 1894 was partially in New York Co

partially in Westchester County.

81. The Bronx therefore presents an issue that the Queens/Nassau and

Richmond/Suffolk areas do not: how to determine the number of “full ratios” for th

in 1894 constituted New York and Westchester Counties when their 1894 boundary

River – is right in the middle of present-day Bronx County?

82. In 1972, 1982, and 1992, the Legislature resolved this issue by (i) ad

the populations of present-day New York, Bronx, and Westchester Counties and (ii)

the number of “full ratios” in that combined tri-county region to the number of Sena

that collectively were assigned to New York and Westchester Counties in 1894. Th

methodology compared present-day apples to 1894 apples because the territory that

New York, Bronx, and Westchester Counties today is the same territory that contain

York and Westchester Counties in 1894.

83. LATFOR abandoned this methodology in 2002 in favor of separately

the populations of those portions of present-day Bronx County that are west and eas

Bronx River. Instead of combining all of the Bronx with New York and Westcheste

had been done in the past, the Bronx would be divided along the Bronx River, which



Bronx east of the Bronx River would be combined with Westchester County for pur

determining the size of the Senate.84. Standing alone, the population of Westchester County according to th

Census was just under three full “ratios” (i.e., just under 6% of the total State popul

meaning that Westchester itself would not have been relevant to the Senate size calc

combining Westchester with the area of the Bronx east of the Bronx River pushed th

area over the 6% threshold for the first time. As the 2002 Carvin Memorandum ass

resulted in a net increase in the size of the Senate of two seats. Had this been the on

from methodologies employed in 1972, 1983, and 1992, then the size of the Senate w

been increased to 63 seats in 2002.

85. The second change that LATFOR made in 2002 was to abandon the

Before Rounding Down Method (Method A), and to use, for the first time in over th

the Round Down Before Combining Method (Method B). The 2002 Carvin Memor

not discuss whether to use Method A or Method B with respect to Richmond/Suffol

both methods yielded the same results for that area given the 2000 Census data. Bu

Carvin Memorandum expressly concluded that Method B should be used in Queens

so concluding, the 2002 Carvin Memorandum asserted, without significant analysis,

B “is more faithful to the Constitution” than Method A.

86. Whereas using Method A in connection with the Queens/Nassau com

would have yielded 63 Senate seats in 2002, using Method B yielded 62 Senate seat



87. Notably, LAFTOR published its 62-seat Senate plan on or about Feb

2002 – several weeks before the 2002 Carvin Memorandum was published. In otheLATFOR did not inform the public of the supposed constitutional rationale for incre

size of the Senate until months after the first round of public hearings had concluded

88. For this reason, the public was deprived of any meaningful opportuni

alternative 62-seat Senate plans before LATFOR decided which 62-seat plan to reco

LATFOR made its final recommendation to the Legislature on April 8, only one mo

revealing the supposed rationale for creating 62 districts.

89. Although the 2002 Carvin Memorandum purported to apply a neutra

analysis, it is now clear that LATFOR’s decision to increase the size of the Senate fr

to 62, but not to 63, was politically motivated.

90. LATFOR’s political motivation in jettisoning decades of precedent w

how to calculate the size of the Senate was revealed in a series of 2001 memoranda

the chief architect of the 2002 plan. LATFOR was compelled to produce these prev

memoranda in subsequent federal court litigation.

91. An internal LATFOR memorandum dated May 4, 2001 entitled

“Reapportionment Areas” (the “May 4, 2001 Memorandum”) confirms that by that

Senate Republicans already had decided that they likely would create 62 districts. T

chief architect expressly noted in this memorandum that the Republicans had “wigg

create either a 61-seat or a 62-seat plan without running afoul of the one person, one



settled by that date, notwithstanding that there had been many internal discussions a

Senate Republicans about the possibility of creating 63 districts. The July 20, 2001Memorandum expressly states (a) that the Republicans “have had numerous discuss

regarding the possibility of the Senate increasing in size to 63”; (b) that the “ultimat

would be “made with political numbers for proposed districts at each size in hand”;

chief architect’s view was that “the only reason to go to 63” districts would be to us

district to “combin[e] politically undesirable areas” in Long Island (emphasis in orig

(d) that a 63rd seat could not be placed anywhere in the Republican-dominated upst

because the 62-seat plan that already had been drawn had purposely drawn those dis

(emphasis in original) – i.e. they were purposefully underpopulated – in order “to av

migration [of a district] downstate,” and that adding a 63rd seat “would exacerbate t

– i.e., make it impossible to avoid giving the 63rd seat to the downstate region witho

a total population deviation in excess of 10%. The July 20, 2001 Memorandum is a

hereto as Exhibit 3.

93. A third internal memorandum December 18, 2001 entitled “The 135”

“December 18, 2001 Memorandum”) is also significant. It confirms that by that dat

longer was any discussion or consideration of a Senate size other than 62 seats, even

LATFOR’s website still indicated to the public as of that date that there would be 6

and LATFOR was still encouraging the public to propose 61-seat plans. This memo

demonstrates that LATFOR was purposefully manipulating various state law apport



architect believed the one person, one vote principle imposed. The December 18, 2

Memorandum is attached hereto as Exhibit 4.94. Thus, after secretly deciding in or about the summer of 2001 that it w

62 Senate districts, LATFOR nonetheless continued to encourage and accept propos

public for 61-district plans, knowingly misleading the public just as it did again in 2

2012.

95. Indeed, on February 13, 2002 – the day before LAFTOR announced

plan that eventually would become law – LATFOR’s website still said that there wo

districts in the 2002 plan.

96. In sum, there is no question that LATFOR first decided to create a 62

2002 for partisan political reasons, and only then instructed the Senate Majority’s at

concoct a legal justification for doing so.

E. The Legislature’s Decision to Use Both Methods Simultaneously

97. Notwithstanding that the 2002 Carvin Memorandum plainly resulted

partisan political calculations rather than neutral and evenhanded legal analysis, and

notwithstanding that the methodology it recommended was a radical departure from

methodology consistently used by the Legislature in 1972, 1982, and 1992, there is

that the Legislature firmly concluded, by expressly adopting the reasoning in the 20

Memorandum, that the Round Down Before Combining Method (Method B) is “mo

the Constitution” than the Combine Before Rounding Down Method (Method A).



Senate size should increase from 62 seats to 63 by using both counting methodologi

A and Method B – simultaneously.

99. Given the population figures revealed in the 2010 Census, there are t

where the choice of methodology affects the size of the Senate: Nassau/Queens (wh

combined to compare those counties to 1894 because Nassau did not exist at the tim

Suffolk/Richmond (which must be combined because those counties were combined

Senate district in 1894).

100. Using the Round Down Before Combining Method (Method B) – to

Legislature switched in 2002 because it supposedly “is more faithful to the Constitu

would have yielded 62 districts this year, the same number as in 2002.

101. But in a memorandum that LATFOR published on its website on Jan

(the “2012 Carvin Memorandum”), the Senate Majority’s attorney – the same attorn

authored the 2002 memorandum – instructed LATFOR to use the Round Down Bef

Combining Method (Method B) with respect to the Nassau/Queens combination, bu

Combine Before Rounding Down Method (Method A) with respect to the Suffolk/R

combination. The 2012 Carvin Memorandum is attached hereto as Exhibit 5.

102. The Legislature has adopted both the conclusion and the rationale in

Carvin Memorandum. LATFOR posted the 2012 Carvin Memorandum on its webs

following explanation:

The State Constitution requires 150 Assembly districts and contains



By clicking on the hyperlinked words “click here,” a LATFOR website visitor is dir

2012 Carvin Memorandum, with the 2002 Carvin Memorandum attached.

103. The Legislature therefore calculated the size of the new 2012 Senate

different methodologies – including the very methodology that the Legislature expre

in 2002 – within the same reapportionment plan.

104.

Using this unprecedented and illogical mix-and-match formula, the L

determined that the Senate would be increased to 63 seats.

105. The 2012 Carvin Memorandum attempts to mask its internal method

inconsistency. In the table entitled “2010 Senate Size Calculation” that is appended

2012 Carvin Memorandum lists only the combined population, and the number of “

computed from the combined population, of Richmond and Suffolk Counties, rather

the individual populations and the individual number of “full ratios” of those two co

separately (as the 2012 Carvin Memorandum does for every other county that is suf

populous to affect the Senate size).

106. By definition, to list only the combined populations of Richmond and

to use the Combine Before Rounding Down Method (Method A). After all, one can

down the individual “ratios” for those two counties before combining them without

their individual populations to calculate their respective “ratios.”

107. The table entitled “2010 Senate Size Calculation” in the 2012 Carvin

Memorandum purposefully lists only the combined population of Richmond and Su



108. Despite the obvious constitutional defects in the formula invented by

order to devise a Senate plan consisting of 63 districts, the Legislature adopted and t

signed a 63-seat plan passed in conformity with LATFOR’s recommendation.

F. The Decision to Use Both Methods Simultaneously Was Political,

Result of any Effort by the Legislature to Apply the Constitution

Consistently or Evenhandedly

109.

The 2012 Carvin Memorandum expressly states that “the proper met

for combining Richmond and Suffolk for purposes of performing the Senate size cal

use the Combine Before Rounding Down Method (Method A).

110. The 2012 Carvin Memorandum offers two ostensible justifications fo

conclusion: (i) that Method A supposedly was used for Richmond/Suffolk “in every

redistricting”; and (ii) that Method A supposedly “reflects the Senate arrangements

existed in 1894.” Both of these ostensible justifications are pretexts, and they betray

Legislature has not made a good-faith effort to apply Section 4 evenhandedly or con

111. First, although it may be true that the Combine Before Rounding Dow

(Method A) was used for the Richmond/Suffolk in 1972, 1982, and 1992, the Legisl

used Method A during those years for Queens/Nassau, which the 2012 Carvin Mem

rejected as precedent for the current treatment of Queens/Nassau. In 2002, the Legi

expressly rejected Method A, concluding that the Round Down Before Combining M

(Method B) “is more faithful to the Constitution.”

112. To be sure, the 2002 Carvin Memorandum did not expressly discuss



why Method B “is more faithful to the Constitution” with respect to the Queens/Nas

combination but not with respect to the Richmond/Suffolk combination, and no such

exists.

113. It is not true that using Method A for the Richmond/Suffolk combina

for the Queens/Nassau combination, “reflects the Senate arrangements as they existe

with respect to Richmond/Suffolk but not Queens/Nassau. Although the 1894 Consexpressly provides that Richmond and Suffolk Counties initially would share a sing

district, that historical fact does not in any way justify treating the Richmond/Suffol

combination differently from the Queens/Nassau combination. After all, using Met

Queens/Nassau combination, which also constituted a single unit in 1894 – i.e., calc

total population of the area that was Queens in 1894 before rounding down the curre

for that area – similarly “reflects the Senate arrangements as they existed in 1894,” b

has expressly rejected using Method A for the Queens/Nassau combination, and the

has followed its recommendation.

114. The asserted justifications for treating the Richmond/Suffolk combin

differently from Queens/Nassau combination offered in the 2012 Carvin Memorand

pretexts designed to mask the Legislature’s actual motivation in increasing the size

to 63 seats: the desire to engage in severe partisan gerrymandering in an effort to en

Republican Majority to preserve its razor-thin and demography-defying control ove

115. Given New York’s political demographics, the Senate Republicans c



Republican-dominated districts and overpopulating Democrat-dominated districts to

extent possible.

116. Not surprisingly, the Legislature’s 63-seat plan for 2012 is severely

malapportioned. All of the upstate districts in the plan are significantly underpopul

of the New York City districts in the plan are significantly overpopulated.

117.

This severe malapportionment favors the Republicans, who control mupstate districts, and disfavors the Democrats, who control most of the New York C

118. Had the Legislature engaged in a neutral and good-faith effort to draw

equipopulous districts, then a full Senate seat would have been shifted from the upst

the New York City region.

119. The Legislature decided to increase the size of the Senate to 63 seats

doing so allowed it to effect a more severe partisan gerrymander than would have be

achievable under a 62-seat plan.

G. By Withholding that It Had Decided to Increase the Size of the SSeats, LATFOR Knowingly Thwarted the Ability of the Public to

Meaningfully In the Redistricting Process

120. LATFOR manipulated the public hearing process in order to deprive

Yorkers of any meaningful opportunity to participate in the reapportionment of the S

121. The 2010 Census data was released in March 2011. Once it received

data, LATFOR had all the information it needed to decide whether Section 4 require

the Senate to be increased from 62 seats to 63.



solicit input from the public regarding what the plan should look like, and the purpo

post-plan hearings is to solicit input from the public regarding the extent to which L

proposed plan should be reconsidered by the Legislature. After these meetings con

no further opportunity for formal public input concerning legislative redistricting.

123. LATFOR held a number of pre-plan public hearings between July 20

November 2011. The ostensible purpose of these hearings was to afford the public opportunity to express views on what the Senate plan should look like.

124. LATFOR failed to inform the public prior to these pre-plan hearings

decided to adopt a 63-seat Senate plan in 2012.

125. LATFOR did not announce this decision until January 6, 2012, by w

of the public hearings already had taken place, and several 62-district proposals had

submitted by the public.

126. During the pre-plan hearings, members of the public understandably

comments and suggestions on 62-seat redistricting alternatives.

127. When asked during the hearings whether LATFOR might be conside

increasing the size of the Senate, Senator Nozzolio repeatedly responded by stating

LATFOR would not consider that issue until the public had weighed in on the numb

Senators the public wanted.

128. At the July 19, 2011 public hearing in Syracuse, Senator Nozzolio ex

belief that LATFOR should postpone determining and announcing the number of Se



129. At the July 20, 2011 hearing in Rochester, anticipating that Senator

Malavé Dilan would repeat his earlier request that LATFOR settle the Senate size is

persons recommending redistricting plans to LATFOR would know how many distr

Senator Nozzolio said:

[T]he New York State Senate is currently at a number of 62 memberand . . . Senator Dilan [is] raising a very thought-provoking question

what will the number of the Senate be? The Constitution and the lawthe state provide for the ability for that number to grow or shrink depending on particular policy questions, and Senator Dilan has raisequestion now twice. I think that it’s important to put out that we certwould welcome, and I frankly don't believe any decision should be mSenator, until at such time as the public has an opportunity to review process and provide us with input. Let the public tell us whether theSenate, which is now at 62 should be changed to another number.

130. Senator Nozzolio made these public statements even though he knew

have known that Section 4 does not allow the size of the Senate to be increased, or n

or wholly based upon public opinion.

131. Senator Nozzolio made these public statements even though he knew

decision had already been made to increase the size of the Senate to 63 seats for part

132. By failing to inform the public of its decision to add a 63rd seat until

were over, LATFOR knowingly ensured that interested citizens would have no mea

opportunity to participate in the Legislature’s redistricting process.

H. The Constitution Prohibits the Legislature From Increasing the

Senate to 63 Seats in 2012

133. Section 4, as interpreted by the courts, prescribes an objective mathem



134. It is imperative that the mathematical formula prescribed in Section 4

consistently and evenhandedly. Otherwise, Section 4 would present an open invitat

recurring partisan manipulation during every redistricting cycle.

135. Prior to 2002, decades of precedent, expressly blessed by the New Yo

Appeals, established that Method A is to be used.

136.

Even assuming the Legislature had the discretion to jettison this precswitch to Method B in 2002 – notwithstanding that it did so for purely partisan reaso

because of any good-faith or evenhanded reading of Section 4 – the Legislature plai

discretion to use Method B with respect to the Queens/Nassau combination and Met

respect to the Richmond/Nassau combination within the same reapportionment.

137. There is no constitutionally permissible basis for treating the Queens

combination differently from the Richmond/Nassau combination with respect to wh

methodology is used.

138. If Method B were used consistently, the Senate would remain at 62 s

139. If the methodology that was used consistently in 1972, 1982, and 199

in 2012 – treating New York, Bronx, and Westchester as a combined unit, and aggre

using Method A – the Senate would remain at 62 seats.

140. There was no constitutional basis for increasing the size of the Senate

in 2012.



FIRST CAUSE OF ACTION

(Article III, Section 4 of the New York Constitution)

(Unconsolidated Laws § 4221)

141. Petitioners hereby incorporate each of the foregoing paragraphs as if

forth herein.

142. It is imperative that Section 4 be interpreted clearly and consistently.

143.

Prior to 2002, the Legislature clearly and consistently interpreted Secrequire the use of the Combine Before Rounding Down Method (Method A).

144. Section 4 forbids the Legislature from applying one methodology to

Queens/Nassau and the other to Richmond/Suffolk within the same reapportionmen

145. Section 4 especially forbids the Legislature from doing so when their

motivation is the desire to engage in partisan gerrymandering, not a good-faith effor

the Constitution rationally or consistently.

146. The constitutional violation complained of herein is exacerbated by t

LATFOR failed to inform the public of its decision to increase the size of the Senate

during the public hearing process, thereby effectively depriving the public of its enti

meaningful opportunity to participate in the redistricting process.

147. The decision to apply Method B to Queens/Nassau and Method A to

Richmond/Suffolk was not the result of an honest or good-faith effort to interpret th

Constitution rationally, consistently, or evenhandedly.

147. The Legislature decided to apply Method B to Queens/Nassau and M



149. Petitioners are entitled to a declaratory judgment establishing that Se

forbids New York from increasing the size of its Senate to 63 seats in 2012 and an o

to Unconsolidated Laws § 4221 permanently enjoining Respondents from implemen

seat plan.

WHEREFORE, Petitioners respectfully request that judgment be entered agaRespondents as follows:

a. Declaring that the formula prescribed in Article III, section 4 of the N

Constitution forbids New York from increasing the size of its Senate

2012;

b. Enjoining Respondents from implementing the 63-seat plan enacted b

Legislature; and

c. Awarding such other and further relief as this Court may deem just a





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Documents

Petition Cohen v Cuomo