NEW YORK CITY BD. OF ESTIMATE v. MORRIS

Transcript: 

ORAL ARGUMENT OF PETER L. ZIMROTH ON BEHALF OF THE APPELLANTS

Chief Justice William H. Rehnquist: We'll hear argument now in No. 87-1022, Board of Estimate of the City of New York v. Beverly Morris; No. 87-1112, Frank Ponterio v. Beverly Morris.

Mr. Zimroth, you may proceed whenever you're ready.

Mr. Zimroth: Good afternoon, Mr. Chief Justice, and may it please the Court.

The court of appeals in this case declared unconstitutional a body which for roughly 90 years has been... has played a central role in both the history and the governance of the City of New York.

It has been in the words of many commentators in virtually every, single serious study on this subject... and there have been many... the glue which has kept the City of New York together, the... the... the body of which has embodied the compromise that was necessary both to the creation of the City of New York at the turn of the century and also the... its continued existence as times have changed.

The central factor, the central consideration, the central structural point, of the Board of Estimate is that there is a combination of city-wide officials who control the majority of the votes and five borough presidents who... who control the majority of votes.

And when the court of appeals declared this body unconstitutional, it simply ignored that structure.

It split the body in two.

It said the city-wides we're not going to consider.

It said the five borough presidents we're going to consider as if it was... as if it were a legislature, which the Board of Estimate is not.

Independent of the five borough presidents and declared that body unconstitutional.

That body does not exist.

It does not exist in New York City government.

And what the... what the court of appeals did is basically said that it was not convenient to find methodologies to judge this complex body, and so it ignored the central truth about the Board of Estimate.

And to understand why this is the central truth about the Board of Estimate, you have to understand how the Board of Estimate came into being.

The Board of Estimate was a product of the consolidation of many independent entities at the turn of the... of the century, the consolidation of the City of New York.

Unidentified Justice: Mr. Zimroth, is the Board of Estimate created by the state legislature in New York, or what entity creates the Board and fixes the boundaries and determines its composition?

Mr. Zimroth: It's the City charter.

Unidentified Justice: The City charter.

Mr. Zimroth: Yes, although ultimately it is... it is under the authority of the state legislature.

The state legislature, obviously, could change the boundaries or the voting structure.

But... but the voting structure that I'm talking about is set forth in the... in this... in the City charter--

Unidentified Justice: Does the legislature specifically approve the City charter?

Mr. Zimroth: --Excuse me?

Unidentified Justice: Did the legislature--

Mr. Zimroth: There are--

Unidentified Justice: --specifically approve the City charter?

Mr. Zimroth: --In some... there have been many charter revisions.

There are charter revisions.

There are two... basically two ways you can have a charter revision.

You could either have it by referendum, or you can have it by the state legislature.

Both are true here.

In other words, there have been charter revisions in 1901, 1938, 1961, 1975, and I think there was one, a minor one, in 1983.

And I don't remember which of those were by referendum and which were by the state... by the state legislature.

But this particular voting structure has been approved by both methods because in each time it... when the... when the... either through referendum, the people vote on the charter or the... or the state legislature votes so that in both ways this... this structure has been... has been approved.

And again, if... if you look back to the history of the consolidation of the City, what you have is several independent... independent entities who cede their authority to a central government and, obviously, demand to retain some manner of meaningful voice in that... in that centralized government.

And the Board of Estimate was precisely the mechanism.

And this voting structure was precisely the mechanism which expressed that compromise to resolve the tension between the need for a broader municipality to give services, on the one hard, and the obviously understandable and legitimate desire for people to have government close to home.

So, this was the body that incorporated that... that compromise.

And it has been in--

Unidentified Justice: Were the... Mr. Zimroth, were the boroughs part of this structure by charter also?

Mr. Zimroth: --Yes.

Three... at the time in... in the turn of the century there were three boroughs.

The consolidation of the City of New York was the borough of Richmond/Staten Island; the Borough of Manhattan, which was then the City of... of New York; and the Borough of Brooklyn, which was the City of Brooklyn.

Bronx and Queens were made up of amalgams of... of towns and villages from either... what was Westchester and Long Island.

So, there were three counties that got together and many, many other independent entities that got together in this consolidation at the turn of the century.

And it's very interesting that... I... I sort of like to look at the... the early history in a way analogous to the United States' Articles of Confederation and Constitution.

In 1898 when... when the body was first created, this voting structure did not exist.

The borough presidents didn't have a vote on this Board.

And that very fact threatened the very existence of the consolidation.

And there was a... you know, there was a very big uproar from the boroughs saying, in effect, we have been cheated... we have ceded our powers and we have been cheated out of our ability to have a meaningful voice in the governance.

And so, in 1901 there was a second charter revision which... which created the structure that we have now which has, in essence, existed to this day; that is with a majority of city-wides, a minority of borough presidents, a system which, if you look at the arithmetic, you can... with respect to all of the actions which the Board of Estimate has exclusive power over, they cannot take an action without a concurrence of... of representatives representing a majority of the people of the City of New York.

Unidentified Justice: Mr. Zimroth, I... I take it for many years, until about 1958, the Board of Estimate followed a system of weighted voting?

Mr. Zimroth: It still has a system of weighted voting.

The weighted votes are: the city-wides have two votes each, and the borough presidents have one vote each.

Unidentified Justice: Well, what was the change made in 1958?

It was some significant change.

Mr. Zimroth: Well, it... it--

Unidentified Justice: And maybe you could enlighten us about that.

Mr. Zimroth: --Yes.

The change was this.

In 1901 two boroughs, Manhattan and Brooklyn, had 88 percent of the population.

So, they were given a... the original structure was three votes for the city-wides, two for Manhattan and Brooklyn, and one for the other three.

Nineteen fifty-eight, because of the change in population, the growth of Queens primarily and the fact that Manhattan and Brooklyn no longer had 88 percent of the population, the structure was changed to, in essence, what we have now.

It was actually four and two, and then it was change just for arithmetic's purpose to two and one, but it's the same ratio.

And that's what happened in 1958.

It has been an evolutionary process, and what has happened in the City of New York is that more and more power has been transferred from the formerly independent entities to the central government.

And that very process has made it even more important that... that there be some kind of a mechanism for the... for the boroughs to have a voice in the central government.

It has been a body that's proved to be flexible enough to deal with changing dynamics of the City of New York.

Just to give you one example among many, as racial minorities and ethnic minorities in the City have grown more and more populous and more and more powerful, the Board of Estimate has adapted itself.

There are... now, for example, two of the five borough presidents are minorities, one an Hispanic and one a... a Black.

The district--

Unidentified Justice: Mr. Zimroth, what... what would the voting deviation be, as this Court normally measures it, if we included the at-large members in your view?

Mr. Zimroth: --Well, as this Court--

Unidentified Justice: The court below didn't include them.

Mr. Zimroth: --They did not.

Unidentified Justice: And suppose we took account of that.

Mr. Zimroth: They did not.

Unidentified Justice: Then what's the deviation.

Mr. Zimroth: We think... there is no method that this Court has used that is capable of doing that.

So, we have... we have suggested two methods.

One method is... is a sort of a... I think a common sense method, which is what I said earlier, and that is that if you look at the... the votes, there is no way with respect to those actions that the Board of Estimate can take on its own... there is no way that an action can be taken without the concurrence of representatives representing a majority of the population.

Let me give you an example of what I mean.

Unidentified Justice: Mr. Zimroth, is that true of budget matters?

Mr. Zimroth: Budget matters is not... it is not true of some budget matters... some budget matters.

Unidentified Justice: xxx.

Mr. Zimroth: I'm glad you raised the budget matters because, frankly, on reflection I wish... I wish we had said more about that in... in the briefs because there's a... I think a very serious misconception about the Board of Estimate's role in budget matters.

Just to... to sort of start with the conclusion and then to explain it, in fiscal year 1986, there were 93 votes on budget matters.

The mayor was excluded from seven of those.

Almost all budget matters include the mayor as a vote.

Now I'll explain to you what that means.

The budgetary process has many different facets to it.

The mayor actually is the premier person in this... in this... in this whole scenario.

Why?

Because under New York law, there has to be a balanced budget and the mayor estimates the revenues.

So, once the mayor estimates the revenues, there can be no increase in the budget unless there's an increase in property tax.

The only body authorized to do that is the City Council, not the Board of Estimate.

The Board of Estimate plays no role whatsoever in that decision.

On the adoption... original adoption of the budget, the mayor proposes the budget.

And if there is going to be a change without the mayor's approval, it requires the... the joint action of both the City Council and the Board of Estimate, and one of those two bodies has to vote by a two-thirds majority.

Otherwise, there can't... there can't be any change.

And as I say, there can't be a... a raising without additional taxes, and the additional taxes can come only from the City Council, not the Board of Estimate.

That's the--

Unidentified Justice: Mr. Zimroth?

Mr. Zimroth: --Can I just finish the rest of the budgetary process?

Unidentified Justice: Go ahead.

Mr. Zimroth: That's only at one time in the year.

Throughout the rest of the year, there are many, many changes in the budget because under New York law, the budget is... is not a mandate to... to spend.

It's an authorization to spend.

And the mayor doesn't have to spend any of it or any part of it.

That's not... I'm not talking about an impoundment kind of situation where there's a mandate to spend because the budget is not a mandate to spend.

So, that's the first point, that this budget is not what you think of ordinarily.

The second point is that the mayor and the agency heads can without any further action transfer money from one part of the budget to another part of the budget as long as it's within the same agency and as long as it's not so much as to... there's a percentage that... that can't be overcome.

And if that percentage is overcome, then there has to be another budget action.

And on that budget action, the mayor votes on the Board of Estimate.

And that's what most of the budget actions are.

That's why I said that in fiscal 1986--

Unidentified Justice: But there are some on which he may not vote.

Mr. Zimroth: --That's correct.

Unidentified Justice: And I presume they are of some importance or they wouldn't have a special legal rule for those particular votes.

Mr. Zimroth: I don't deny that they have importance.

I only say that the Board of Estimate's role in that process is very limited.

They cannot act at all without the concurrence of the City Council.

They cannot act at all if the City Council votes by a majority to disagree with the mayor.

They... they need two-thirds or vice versa.

And, I mean, the reality of the budgetary process is I think very clear.

If you look at the budgets over history, the mayor is the central actor, a city-wide official elected by all the people of the City... is the central actor.

The changes in the budgets year after year after year are frankly minuscule compared to a $25 billion budget.

You're talking about like a half of one percent of a quarter or a percent.

That's the kind of... of power you're talking about.

I can't say it's not important, you know, but... but it is what it is.

Unidentified Justice: xxx Justice Kennedy has a question for you.

Mr. Zimroth: I'm sorry.

Unidentified Justice: Well, Justice O'Connor began asking you about the population deviation.

And I was interested in pursuing that.

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: It depends on how you factor them in.

There's one way of factoring them in which would divide the number of city-wide votes proportionately among all of the counties.

That is, if Brooklyn has 31 percent of the population and there are six city-wide votes, you give Brooklyn 31 percent of six, whatever that is, and you say that's Brooklyn votes.

If you use that method, you come up with a number of 76 percent.

That methodology was rejected by plaintiffs, by plaintiffs' experts and by both courts below.

They said it's completely arbitrary.

It has... I mean, you're dividing something, but what are you... what are you measuring?

But that's the answer to your question.

That's the result you get if you use that methodology.

Unidentified Justice: Did the parties stipulate to some deviation?

Mr. Zimroth: No.

Unidentified Justice: I thought there was some kind of a stipulation.

Mr. Zimroth: To a... no.

There was not.

Unidentified Justice: Using the same method, what would the deviation be if you added one more at-large member?

Mr. Zimroth: Which... which method?

Unidentified Justice: The method you just described.

Mr. Zimroth: The one that the district court and the court of appeals and the plaintiffs rejected.

I don't know what the answer would be.

I'd have to--

Unidentified Justice: Before you started to say there were several ways to do it under the Abate method, and you--

Mr. Zimroth: --No, no.

Unidentified Justice: --described one.

Mr. Zimroth: I didn't say there were several ways under the Abate method.

Unidentified Justice: Oh, okay.

Mr. Zimroth: I said we suggested two ways.

One way is to... is to just look at the body itself and say that with this narrow exception that Justice Stevens pointed to, that with respect to the other actions... and really those are actions which... which the Board of Estimate acts exclusively.

They don't have to act in concurrence with the City Council... that there's no way that a... that an action can be taken without the concurrence of... of elected officials who represent the majority of people.

Unidentified Justice: And that only takes one.

Mr. Zimroth: Excuse me?

Unidentified Justice: It only takes one of those--

Mr. Zimroth: One of those, but if there's one of those--

Unidentified Justice: --Yes?

Mr. Zimroth: --It takes four borough presidents which at a minimum represents 70 percent of the people of the City.

That's right.

Now, the other way that we suggested is the--

Unidentified Justice: In that example, do you assume all the people elected at large will always vote in the same way?

Mr. Zimroth: --Absolutely not.

They don't.

Unidentified Justice: Then I don't quite understand your argument.

Mr. Zimroth: Okay.

I'll tell you what it is.

If... if there are... if there are three city-wides... if they all vote together, they obviously control the six votes.

Okay?

So, put that aside.

The only way that... so then you have to say what happens if there's a two to one split.

And as I just answered, the only way that the one can prevail over the two is if representatives of 70 percent of the people of New York join that person.

Now, that's one way of doing it.

I think it's a common sense way.

It obviously... it describes much more realistically than what the... what the courts below did what the actual body is.

I mean, that is the body.

What they judge unconstitutional is not the body.

There's another way that we... that we suggested, and that is a method originally devised by Professor Barzhaf.

And that method does two things.

First of all, it--

Unidentified Justice: You went a little fast for me.

Seventy percent of the people of New York.

You're talking about two representatives?

Two... two--

Mr. Zimroth: --No.

I'm talking about the four... the four borough presidents to join with the one, done city-wide.

Unidentified Justice: --Well, they only... they have one vote apiece.

So, you need six votes all together.

But is it still not true that their votes are all counted equally in that... among those four?

Mr. Zimroth: It is true.

Unidentified Justice: So that the people from the smallest borough have a larger voice in that vote than the people in the--

Mr. Zimroth: They do have a larger voice.

I don't deny that they have a larger voice.

My... my point is how to measure that larger voice.

And what is the meaning of that larger voice in the context of... of this case?

That is, to say what the court of appeals said--

Unidentified Justice: --The meaning I suppose is that the borough president from Staten Island has the same voice as the borough president from Brooklyn.

Mr. Zimroth: --Right.

Unidentified Justice: And... and they represent widely different populations.

Mr. Zimroth: Yes, but... but they represent them in a context where that difference is much, much less significant than if there were a five-member body that had no city-wides.

Supposing there were... supposing there were 100 city-wide votes, what you say would still be true, but those... and those five borough presidents would still have equal power.

Zero it would be.

Unidentified Justice: Well, no, because if you assume that there's... say there's some issue on the Bronx he's opposed to, he has got to pick up one vote to defeat the issue.

And the one vote from... from Staten Island is enough or the vote from Brooklyn is enough.

Mr. Zimroth: Let me... let me... maybe there's another way I can illustrate this point.

And if I could beg your indulgence to turn to page 34 of the brief where there's a chart which illustrates the point that I'm trying to make.

If you use the... if you use the methodology chosen by the district court and by the court of appeals and simply ask that each borough president has a vote in proportion to the population of that borough, you get in essence meaningless results because that chart that... that appears on page 3... 34 is in exact proportion... 34 of our brief... is in exact proportion to population.

Now--

Unidentified Justice: The... the... the chart being just one setting forth--

Mr. Zimroth: --Yes.

Unidentified Justice: --of the various boroughs?

Mr. Zimroth: That's it.

That's it.

That's in exact proportion to population.

That adds up to 51 votes.

If you give the three city-wide elected officials 50 votes each, you will see... and you can work it out, and in the text it is worked out... that it doesn't matter.

It just doesn't matter what those weighted votes are.

Every single combination indicates that Staten Island has exactly the same power as Bronx, Manhattan, Queens and vice versa.

I would be very curious, frankly, to hear from Mr. Emery whether he would accept this system which meets exactly the test of the court of appeals... exactly.

He has got to say either one of two things.

Either he says--

Unidentified Justice: Well, it would seem to me what it boils to is if the Court goes ahead and enters relief along the lines they've discussed, it really won't do any harm to you.

Mr. Zimroth: --No, because what will happen is that in the remedy stage, Mr. Emery will get up and say, horrors, this is unconstitutional.

Why?

Because it doesn't take into account the relationship between the borough votes and the city-wide votes.

He'll have it... he'll want to have it both ways.

He'll want to have it both ways.

Unidentified Justice: How... how do we know that at this stage of the case?

Mr. Zimroth: Well, I guess you could ask him.

Unidentified Justice: Maybe you're arguing something you ought to be arguing after the case goes back.

Mr. Zimroth: Well, but I mean, he... his experts did exactly this below.

They did this below because in the district court they tried to devise alternative methodologies of weighted voting.

And when they... and when they weighted... when they decided to figure out how much the deviation was, they used a methodology very similar to what we are saying.

And they rejected the methodology that they had just won on.

And the reason they did that is precisely this, that is, it's illogical to judge a--

Unidentified Justice: You really are... you really are convincing me there's not much at stake in this case.

Mr. Zimroth: --Only if you say... only if you say that this system is constitutional because if you say that, maybe--

Unidentified Justice: Well, you say it, don't you, that what you propose on page 34 would be perfectly constitutional?

Mr. Zimroth: --if the--

Unidentified Justice: It may not be mandated, but if it had originally been done this way, there would be no constitutional difficulty, would there?

Mr. Zimroth: --If you accept--

Unidentified Justice: Would you not agree with that?

Mr. Zimroth: --the methodology of the court of appeals which we say--

Unidentified Justice: No.

Forget the... just... I asked you a very simple question.

In your view if your present system had the figures in it that you have on page 34 of your brief, would you think there was any constitutional problem?

Mr. Zimroth: --No.

But for a different reason because I think--

Unidentified Justice: And you... and conceivably that's what you'll get when you get all through.

Mr. Zimroth: --Yes, but... but--

Unidentified Justice: You're afraid you may lose when you get back.

Mr. Zimroth: --That's right.

And we'll lose because they'll... they will reject the methodology of the court of appeals.

That's what... that's exactly what's going to happen.

And it's exactly what did happen in the district court.

They abandoned their previous method in the district court.

They have to because if they accept that methodology, then they have to accept this, and they... and they won't.

The reason they won't is that this describes the same system or virtually the same system we have today.

The reason I think this is constitutional is because I think the present system is constitutional.

And the reason I think one present system is constitutional is that this Court's one person/one vote jurisprudence pays very strong attention to all of the factors that... that went into the creation of the... of the Board of Estimate.

It's... it's a body which has been very successful and effective in keeping this very large City together.

Those findings were made by the district court.

The district court found that this body was effective in that way.

It's a structure that has proved flexible enough to accommodate the... the changes in the City.

It has met the test of time again and again and again.

Charter revision commissions have looked at this system and said that this compromise is necessary to the continued existence of the City and to the... essential to the well-being of the City.

The question that I would ask is even in terms of the democratic principles that the one person/one vote is supposed to and does further, what is to be gained by destroying this body.

If you look at what happened, for example--

Unidentified Justice: Why do you assume the body will be destroyed?

I said why do you assume the body will be destroyed.

Mr. Zimroth: --Because--

Unidentified Justice: It will be changed.

Mr. Zimroth: --Because the--

Unidentified Justice: The voting will be a little different.

Mr. Zimroth: --Because the voting structure is the body, and if you change the voting structure, you have a different body.

The voting structure is the compromise that allowed the City to get together.

If you destroy that--

Unidentified Justice: Supposing they made a compromise in Queens, women won't vote, and in... in the Bronx they will, and we'd say that's how they made the deal.

It happens to be unconstitutional.

Are we going to just say, well--

Mr. Zimroth: --Well, of course--

Unidentified Justice: --it was good deal when they made it, so it has got to be preserved?

Mr. Zimroth: --Of course not, but... but--

Unidentified Justice: Well, what's the difference?

Mr. Zimroth: --The big differences are that this Court has always said... it has to be rational.

I mean, that is, the distinctions have to be rational.

And when the Court... and when the Court went... in its one person/one vote jurisprudence has set forth the kinds of things that have been... that are legitimate considerations, the respecting of the historical precedent, the consolidation--

Unidentified Justice: If you had no history at all, could you start out constitutionally?

Just start from scratch and say we want to dream up a new system, a brand... could you start and do what you've got there now?

Or do you have to have this history to justify it?

Mr. Zimroth: --I would say that the history is a very... the history and the success of it--

Unidentified Justice: Well, sure.

But supposing I've got a successful thing where women don't vote in the Bronx, and it has worked, can you keep it?

Mr. Zimroth: --I doubt that it would work.

Unidentified Justice: Well--

[Laughter]

Mr. Zimroth: I mean, it... I mean, in all seriousness--

Unidentified Justice: We're limited to our last successes.

We can't have any more successes in the future.

Mr. Zimroth: --Well, not--

Unidentified Justice: Any good thing that was set up in... in 1890... that can last, but--

Mr. Zimroth: --This is not something--

Unidentified Justice: --that's the end of the story.

Mr. Zimroth: --only that was set up in 1890.

It was something that has been reaffirmed by every, single charter revision commission since then.

Every one has said that this structure is the glue that has kept the City of New York together and don't change it.

And all I'm saying is--

Unidentified Justice: Do you think New York is going to disintegrate if you lose this lawsuit?

You really--

Mr. Zimroth: --Disintegrate?

I think there will be very serious consequences, yes.

Or, alternatively, this is what will happen.

Unidentified Justice: --Do you think Staten Island is going to secede?

Mr. Zimroth: There has been very serious discussion of that.

I don't know whether it will happen.

But there has, in fact, been serious discussion of that.

I hope it won't happen.

I mean, obviously it will be very disastrous for the City of New York it that happened, but very important people in... in Staten Island are... are talking about secession.

That's number one.

Number two is that... I'm not suggesting to you that just because there has been this history, you know, one time 90 years ago, that's the end of it.

It is a history that the court below has... has found credible, has succeeded throughout time in creating the glue that has kept the City of New... New York together.

Unidentified Justice: But the City is a legislative construct, isn't it?

Mr. Zimroth: Yes, it is.

Unidentified Justice: Well, I mean, New York just can't say we're going to fall apart.

Mr. Zimroth: No, of course, it can't.

Unidentified Justice: It--

Mr. Zimroth: But... but the... but the legislators and the people of the City will take very seriously the need for this... this kind of problem.

Let me give you an example.

The Board of Education in the City of New York at one time was... was structured in a way similar to this, not exactly the same.

There was five... five... the borough voted for five members of the Board of Education, and there were then two others city-wide.

That was declared unconstitutional.

Because of the... of the perceived need for that kind of structure, what happened is that you have now an appointed system for the Board of Education where the borough presidents appoint.

Now, is that a net gain for democracy?

That is what... among the very many things that are being discussed now.

That is, if this structure goes down, what you may find... I can't say what will happen, but what you may find is each one of the power of the Board of Estimate will be separated out and they'll be given to either an appointed body on to the mayor to... to increase the centralized power.

I don't see that is a net gain for democracy when you have a system that has been effective, which has worked, and which overall respects majority rule.

We're not talking about a situation where--

Unidentified Justice: --You keep talking about going back.

Did this start back in the Tweed machine?

Mr. Zimroth: --What year was Tweed, Your Honor?

I'm sorry.

Unidentified Justice: Eighteen seventy.

Mr. Zimroth: What?

Unidentified Justice: Eighteen seventy.

Mr. Zimroth: No.

The consolidation was at the end of 19th, beginning of the 20th century.

Unidentified Justice: Nineteen twenty?

Mr. Zimroth: No, no.

The beginning of the 20th century.

Unidentified Justice: Yes, that's what I thought.

Mr. Zimroth: Your honor, may I... may I reserve the rest of--

Unidentified Justice: Yes, you say.

We'll hear now from you, Mr. Emery.

ORAL ARGUMENT OF RICHARD DAVID EMERY ON BEHALF OF THE APPELLEES

Mr. Emery: Mr. Chief Justice, may it please the Court.

In essence, the City makes a claim to an exemption in this case, an exemption from the Court's well-established rule that elected municipal governing bodies must be distracted by population.

Without ever having made any good faith effort to reapportion or establish a... establish a scheme on the basis of population--

Unidentified Justice: When you say elected municipal governing bodies, do any of our cases apply to something just like this or something very close to it?

It isn't the City Council, it's something different than that.

Mr. Emery: --Yes.

Well, that's correct, Your Honor.

It... it is in fact... it does, in fact, have substantial legislative powers if not in law, in fact.

But the closest cases of this Court are clearly Avery v. Midland County which was a commissioners' court in Texas and which... in which there were four representatives, one of... and one of whom was at large... and a fifth that was at large.

And this Court did not take into account the at-large representation.

Unidentified Justice: But that was the governing body of the county, wasn't it?

Mr. Emery: Yes.

And this, in effect, is the governing body of New York City for all financial matters.

Unidentified Justice: Well, but can you... can you... if you split it up that way, you can get to the position where every single board that has jurisdiction is the... is the governing body for that minimal... minimal responsibility that it has.

Mr. Emery: Well, this Court has announced the doctrine of special purpose bodies, and they are bodies with limited franchise.

Generally speaking, to date at least, this Court has held that the one person/one vote rule applies to municipalities where there is a general governmental activity and there is a... a general franchise.

The basis of that rule is the general franchise, and this Court's fundamental doctrine that every voter is entitled to participate equally in the elective process.

It's an individual right.

It's not a majoritarian right in this context.

And as such, yes, it is true that certain bodies may be accepted if they are special purpose bodies with limited franchise for specific issues or for affecting specific people in a... in a geographic area.

But the reality is that where there is a general franchise, this Court has uniformly held that where governing powers are involved, limited to the point of a school board in Hadley v.... in the Hadley case, those cases make it clear that general governing bodies with a general franchise are under the one person/one vote principle.

Now, the point here is that Mr. Zimroth argues for New York as some kind of unique, special situation.

That is simply not the case.

In the United States of the 20... of the municipalities that have populations over 2,500, 25... 20 percent of them have mixed at-large district schemes akin to the Board of Estimate.

Of the... of the City... 13 of the largest--

Unidentified Justice: Is this... is that for the city council?

Mr. Emery: --Excuse me?

Unidentified Justice: Is that for the city council or for something like the Board of Estimate?

Mr. Emery: It is for city councils, but those city councils handle virtually all of exactly the same powers of the Board of Estimate plus some more.

Unidentified Justice: Yes, but that doesn't tell us whether or not a city can split off some functions from the city council and still be governed by the one person/one vote rule.

Mr. Emery: Clearly a city can split off some functions from the city council and not be governed by one person/one vote as long as those functions are limited.

I think that a contract function, for instance, could be given to a contract board and that would not have to be elected and, therefore, it could be limited.

But the Board of Estimate, you must understand, passes as a co-equal branch of New York's legislature on the $25 billion budget every year.

It implements that budget by letting $5 billion a year in contracts.

It is closer to the people, the citizens, of New York City than any other governing body, much closer to the citizens of New York City than the City Council.

It determines all... how all property is developed.

It determines the use of all City property.

It places jails.

It places homeless shelters.

It places garbage dumps, incineration plants.

Every major issue in New York City reaches the Board of Estimate.

Unidentified Justice: How... how... why is it that the five borough presidents vote together so often?

Mr. Emery: Well, there is--

Unidentified Justice: And what is it?

About 97 percent of the time?

Mr. Emery: --No.

Well, you see, there are routine... there are routine issues that come before the Board of Estimate.

Every time a sidewalk cafe wants to put a little extension on its sidewalk cafe portion, it has to go to the Board of Estimate and get signed off.

I mean, I suppose... I'm not sure, but I suppose it's a little bit like certiorari petitions in this Court.

There is an enormous amount of unanimity on the Board of Estimate for routine discussion matters.

But the Board of Estimate's real role in the City, as Mr. Zimroth has argued... and I think he has argued it here today... and concedes, is the determination of the difficult financial issues about the City's future, about how it's--

Unidentified Justice: How often do the borough presidents disagree in that category of issues that you say are really--

Mr. Emery: --Yes.

Unidentified Justice: --got some meat to them?

Mr. Emery: They disagree all the time.

It's impossible to... to statistically analyze it because the Board of Estimate votes are hand-counted.

They don't even publish them.

You'd have to go back to the newspaper records.

But, in fact, there are a number of disagreements which are very, very significant.

There were three six to five votes recently where the borough presidents disagreed and where the at-large members disagreed and were Staten Island weighted by virtue of population, those votes on... on a incineration plant, on homeless shelters, and on middle income housing in the Bronx, all would have gone the other way.

They all would have been the opposite result had there... had there been a weighting by vote.

Most--

Unidentified Justice: Even... even if you had the system set up on page 34 of the--

Mr. Emery: --Well, Mr.--

Unidentified Justice: --petitioner's brief?

Mr. Emery: --Mr. Zimroth's 34... page 34 is a bit of a red berring, I might say, because this 34, page 34 system, redesigns the entire system.

In the system now, with the six to five majority needed, you need two city-wide and two borough presidents.

If you look at this system, you need two city-wide and one borough president.

This system gives the borough presidents far more power than they have today.

So, I mean, this system is a little... this... this would be a radical change of the relative powers of the people who sit on the Board of Estimate as we know it today.

Unidentified Justice: Would you say it would be unconstitutional?

Mr. Emery: No, in fact, I don't... I don't know whether it would be unconstitutional, and this... this is the reason because under this Court's case law, the critical criteria is the equal right of a voter to participate in an election.

This system does provide the equal right of a voter to participate in an election.

But it's a sham.

The system is a sham to create equal rights among borough presidents.

And there might be some other basis to attack it.

I can't think it's... I don't think it's permissible under the State constitution.

I think clearly the State constitution would hold this system absolutely unconstitutional.

Unidentified Justice: Is... is there any system that gives the borough... that would give the borough presidents a significant role and pass constitutional muster?

Mr. Emery: Oh, absolutely.

This case... this Court affirmed a case in 1971 I believe it was.

It was called Franklin v. Krause.

It came out of Nassau County, and it was a weighted voting scheme for the county legislature where they have different towns of radically different sizes, and the... the mayor on the executive of each town, just by virtue of his office, appointed to the county legislature and assigned a weighted vote based on the population of... of that which he... of that town which he represents.

And those weighted votes are calculated.

So, they are meaningful representation because they are determined in conjunction with the power not the representation, but the power of that person to... to effect a change, to effect a critical vote on the legislative body.

Consequently, this... this Court has summarily affirmed a system that was adopted by a state deferring obviously to the state system in Franklin v. Krause, a system which this Board of Estimate could clearly and easily adopt at any point it wished and guarantee meaningful representation, representation consistent with the amount of population in Staten Island and the Bronx and all the way down the line for... for the... for purposes of perpetuating the Board of Estimate in exactly the way it looks now, but with votes that are apportioned appropriate to population.

The... the point about the allocation is I think a very important one.

It's in some ways central here, and that is does the presence of the city-wide officials in any way mitigate the drastic deviations of equal representation for two boroughs, such as Staten Island at 350,000 and Brooklyn at 2.2 million.

Well, I say that we win under any method of locking at it, whether you allocate it in the way that Justice O'Connor was suggesting before, or whether you don't allocate it as the... as the district court and the court of appeals did not allocate it.

And that... the reason they did not allocate it makes sense although we do not rely on those reasons in order to win here.

This is a two-tier body, representational body.

It has city-wide representation, and it has community borough local representation.

The City has argued that over and over again.

Staten Island has, in fact, come in here... come to this court and put in affidavits, the Lamberti affidavit in the record and the Trautmann affidavit in the record.

And they say they have preserved their suburban wonderful way of life in Staten Island by virtue of the equal vote that they have.

They are argued that in this Court as the reason for sustaining the equal vote, the point being that it is a two-tier legislative body.

Those two-tier representational system is the basis on which the court of appeals said you've got to measure them separately.

But more important even than what the court of appeals said, the logic of the system is very clear.

When the city-wide officials want to go out and form a coalition to gain a majority on any given issue on which they have taken the initiative... and usually they do take the initiative because they're the mayor, and they're the City Council president, and they're the comptroller.

But when they go out and try and create a coalition, there's no premium on getting the vote of Brooklyn of Queens where the major population is.

There is no premium at all.

In fact, the tendency will be to go get the vote of Staten Island because it's easier to get the vote of the Staten Island borough president.

You only have to satisfy the needs of a homogenous 350,000-person borough as opposed to the needs of a 2.2 million borough or a 1.8 million borough.

Unidentified Justice: But the issue... but the issue is, for purposes of how you do this calculation--

Mr. Emery: Uh-hum.

Unidentified Justice: --how... how... how far away from a proper premium is it?

Mr. Emery: Oh, well, it's enormous and dramatic by any calculation.

Unidentified Justice: Well, isn't what counts how far my... my vote as an individual in... in the decision that is made... how far away from... from fully equal that is?

And for purposes of that, don't you have to decide how is the decision made?

Mr. Emery: Exactly?

Unidentified Justice: Well, shouldn't the fact that I vote for the mayor and the controller and the City Council president... shouldn't that be taken into account in deciding the whole thing?

Mr. Emery: Well, that's... that is the... I view that as one of the central questions in the case.

And what I'm saying is that by any measure, even if you do allocate them... and we did do that.

We were the ones who offered the allocation.

We didn't back off it.

Our expert backed off it, and it came to 78 percent when you allocated that way.

But to answer your question clearly, if you get in the voting booth and you're the voter, and you vote for the mayor, the City Council president and the comptroller, all those votes that you've just cast you have an equal right to participate with everybody else in the... in the City in voting for those officials.

But when you vote for your borough president, you don't have an equal right to participate with somebody across the harbor in Staten Island.

You don't have a... equal access to that person.

You don't have equal leverage over that person.

You don't have equal responsiveness form that person.

You're competing with 2.2 million other people if you live in Brooklyn, 1.8 million other people if you're in Queens.

In Staten Island, you're competing only with 350,000 other people.

Unidentified Justice: We're... we're not talking about officials; we're talking about government decisions.

Mr. Emery: Right.

Unidentified Justice: And it seems to me what's crucial is how far my input into a particular government decision is away from absolute equality with the other people in the... in the City.

Mr. Emery: And that point... again, I don't want to overly defend the court of appeals because by any measure we win it.

Seventy-eight percent is far above anything this Court has ever tolerated.

And what I... what I... but put that aside.

To answer your question, the point is that when a governmental decision is made above and aside from the premium issue, the city-wide officials make their decisions based on their view of city-wide interests.

They don't have to win the borough elections.

It's not like a presidential election where there are states and you have to compile up each borough victory.

Their coalitions for their constituency are comprised of city-wide coalitions, racial, ethnic, socioeconomic, whatever.

And those determine, theoretically at least, what the city-wide official's interest is.

And it's a city-wide interest.

The same cannot be said for the borough presidents.

The borough presidents' issues are determined... their point of view, their vote, their actions as public officials are determined by the view of their constituency which are of dramatically different sizes.

And these are very real decisions, and they make very real differences.

And in the record at least, it's very clear that there are... there is evidence... there is some certainly evidence of... of some dramatic differences in the way that people perceive their borough presidents and their responsiveness in the different boroughs.

Unidentified Justice: xxx think that New York City would have been formed had the rule that you're urging been in effect at that time?

Mr. Emery: Well, in fact--

Unidentified Justice: The thing is we can all join together, but when we all join together, there's going to be no special election of any particular representative for Staten Island or for Brooklyn or for Queens?

Mr. Emery: --The... the history of the... of the consolidation of New York City, as Mr. Zimroth has provided to you, is a bit of a mythology.

We provided the history, the correct history, in the brief, plus the lodging material has it extensively.

Staten Island would do... would have done anything to become part of New York City.

They wanted to grab at the huge tax base of Manhattan and Brooklyn.

They... they overwhelmingly voted in straw polls, which were not binding.

It wasn't a binding vote to... to do this.

Unidentified Justice: But I'm impressed by the fact that you say that a lot of other cities have voting systems such as this.

And that suggests to me that very often a municipal arrangement would never... would never be arrived at unless the people of the relatively discrete units that vote to join together have some assurance that there... that there is some home rule, so to speak, that they car vote as... as a discrete unit.

Mr. Emery: Well, I... I overstate it because every other municipality, every other city including Washington, D.C., that has a mixed district and at-large system complies with one person/one vote.

All the districts are substantially equal.

They have their own peculiar geographic, historical and other... socioeconomic, political, unique qualities in history and in development and in the way that they've come to have the political system they have.

They're no more or less unique than New York.

But each one of those cities, every single one... New York is the sole exception that anyone knows of.

We can ask Mr. Zimroth if there are any others, but I think for the 25 years that this Court has required municipalities to comply with the simple dictates of the arithmetic computation for substantially equal districts, that--

Unidentified Justice: Mr. Emery, you--

Mr. Emery: --rule has been extremely successful because every single city, every municipality has compiled with it.

If there is some other rule announced after the 1990 Census when redistricting is going to be very uncomfortable for everybody involved, there will be all kinds of new claims to the historic, geographic, socioeconomic and other factors which are going to attempt to skew reapportionment in the direction of either incumbency or in directions that we cannot foretell.

Unidentified Justice: --You talk about--

Mr. Emery: So, I think that--

Unidentified Justice: --how many... how widespread this is.

Give me a name of another city that has boroughs.

Mr. Emery: --I mean... another city that has boroughs.

I believe there's a--

Unidentified Justice: Or borough presidents.

Mr. Emery: --Borough presidents.

Well, borough presidents are name--

Unidentified Justice: Well, I mean, you say that this is so common.

I just--

Mr. Emery: --I'm saying that district at-large schemes are common.

None of them violate one person/one vote.

Unidentified Justice: --Can you give me one that's similar to New York?

Mr. Emery: Well, I think Dusch v. Davis.

Unidentified Justice: Can you name me one that's similar to New York?

Mr. Emery: Well, I think the only one that is in any sense similar is the Virginia Beach case that came out of here.

There was... there were boroughs in Virginia Beach.

There are cities with boroughs in the United States.

Unidentified Justice: Have you got one more, just one more?

Mr. Emery: I don't know any off the top of my head.

Unidentified Justice: Well, then what in the world are you talking about?

Mr. Emery: Well, boroughs... I mean, what are boroughs anymore?

Boroughs are not governmental units of any type.

Boroughs are simply administrative districts for a very strong centralized New York City.

Unidentified Justice: In Pennsylvania you have boroughs which are like towns in New England I think.

Mr. Emery: Well, are they within a county and they comprise a county?

Or... I don't know the Pennsylvania scheme.

Unidentified Justice: They're towns.

Mr. Emery: They're towns.

Well, you see, New York has a system which is very analogous in the counties.

As I've said before, in Franklin v. Krause, this Court upheld the system where you had the town officials elected to a county legislature.

Justice Marshall wrote the opinion in... in Abate v. Fundt about the county of Rockland where by definition, becoming the town supervisor puts you on the county legislature which then acts as a legislative body.

In Abate v. Fundt, the 11.9 percent deviation was found tolerable by Justice Marshall and for the Court.

And that... that was such a system.

And what they had there was a multi-member system to accommodate for the hugely disparate populations within these towns... within these towns which comprised the county.

So, there are systems which are very... that are analogous I would say.

The difficulty here is that this... this case presents two things together, each of which is fairly common, but both of which are fairly rare, and that is a mixed at-large and district system and a... a system of... of, as you put it... of... of... where there are substantial at-large numbers and a system where components comprise an overall legislative scheme.

The... I think in fact the... the notion that there is unanimity--

Unidentified Justice: xxx.

Mr. Emery: --Excuse me.

Unidentified Justice: Do you think the Virginia Beach solution would be acceptable in this--

Mr. Emery: Well--

Unidentified Justice: --situation where you--

Mr. Emery: --There's--

Unidentified Justice: --elect everyone at large, but... but you have residence requirements?

Mr. Emery: --Would I?

I think that's something for the court at the remedy stage.

I think that it is certainly constitutional.

It is certainly a constitutional system under one person/one vote.

Your opinion in... in Avery v. Midland County for the Court stated as such, that the flexibility of... of... within the one person/one vote rule was the... was... was demonstrated by the fact that the case in Virginia Beach, Dusch v. Davis, was allowed to go forward because it was a totally at-large scheme.

I might say that this mixed district and at-large scheme, which we've talked about as relatively popular in the United States right now, is a scheme which is growing in popularity.

In fact, it's... this mixture of at-large and district schemes is something that is completely desirable.

The only thing that the plaintiffs object to in this case is the assignment of equal votes for each of the boroughs within this scheme instead of assignment for equal opportunity to participate in the electoral process by the... by the voters.

And the interesting thing is here... and we can ask Mr. Zimroth this.

I mean, you can ask Mr. Zimroth this in rebuttal, and that is what interests that he has cited for upholding the current Board of Estimate... and he has cited many interests.

He cited interests in history, in natural boundaries and integrity of subdivisions, in effectiveness, in meaningful participation, in check on executive powers, what, if any interests of those in retaining the current Board of Estimate in any way relate to the retention of equal votes for the borough presidents?

Unidentified Justice: Well, if... if... if you're trying to make some sort of a place for Staten Island in the system, I suppose if the... if the representative from Staten Island has one vote and the representative from Brooklyn has 20 votes, maybe the guy from Staten Island just won't come to the meetings.

Mr. Emery: Well, the... the--

[Laughter]

The representative from Staten Island can have one vote, and the representative from Brooklyn can have six votes, or it can be apportioned in such a way that the Staten Island representative will come to the meetings because he will make a meaningful difference.

And it... I guess the... the opposite of your hypothetical is let's say we wanted to give Staten Island and absolutely guaranteed role in the system.

Why not have total at-large elections and give every Staten Islander six votes; every Brooklyner; one, every Queens, two; every Bronx, three... Manhattan, three; and Bronx, four?

Could we do that?

It seems to me that would be plainly unconstitutional and that is the exact import of the system that now is in existence.

The point about the... about the justifications that Mr. Zimroth offers here is that none of them support this equal vote for boroughs.

And, in fact, as Justice O'Connor pointed out, the equal votes for boroughs is a relatively new part of this scheme.

This scheme, for 60 of its 90 years, did have votes roughly weighted for purposes of population.

And in 1958 when they equalized the votes, the deviations went up substantially... population deviations under the Abate method.

The... Justice O'Connor asked whether it would make a difference whether an at-large representative was added.

Well, you can figure approximately.

I can't do it because I don't have the calculator ready, but basically it's 132.9 percent if you ignore the city-wide.

It's 78 percent if you add the city-wide.

And that's three of them.

So, if the difference between 70... 100... is about... 40 plus twenty is 60.

Sixty percentage points are added by three... or sorry... lowered by addition of three.

So, four would probably bring it down to 58 percent.

In fact, this Court... this Court has summarily affirmed the invalidation of a city council scheme in New York City that had 50.8 percent deviations.

And that city council scheme had essentially exactly the same interests underlying it as the Board of Estimate scheme.

In that scheme each borough had two extra city council seats assigned to the borough as borough representatives.

This Court summarily affirmed in Andrews v. Koch, which is in the brief, the... the invalidation of that scheme which assigned equal... equal... two votes/two new city council each for each borough.

And the justifications there were actually stronger because there was an added justification that the... there would be a minority party representative on each of those... one of the two would have to be a minority party representative.

It could not be a democrat.

It would have to be some other party in the City of New York.

And the... that was thought to be a good thing, and that was offered as a justification for... an added justification besides the equal participation of the boroughs.

So, what we have here in the end... and one should be aware of this... is many alternatives that can work for New York City.

Mr. Zimroth is wrong in my opinion in saying that this is the only system that will let New York City survive.

The fact of the matter is is that I'm not sure we've done very well with it, but some say we have.

I'm not sure that effectiveness can ever be a criteria for this Court because that will place it in... more in the midst of any political thicket than it ever has been so far it seems to me.

And it's also important to note that there is a charter revision commission standing in abeyance waiting for this Court's decision to make a determination with the many alternatives that it has already assessed and already made determinations about as appropriate to maintain the wisdom and the good parts of this mixed district and at-large scheme.

In conclusion, I would just say that we know that the one person/one vote rule works at the municipal level in just this kind of system nationally.

You can't avoid by any method of computation the huge disparities that exist between boroughs that range in population from six to one... by a factor of six to one.

There's no question that the Queens and Brooklyn voter gets less responsiveness from the borough president than the Staten Island voter.

It's clear in the record.

And there is absolutely no evidence that the City has presented or that could be presented that the at-large city-wide officials favor the large boroughs.

There's no evidence of that sort already, and that we hope that this Court will not accept an equal vote for boroughs, but will again reaffirm its doctrine of an equal vote for voters.

Thank you very much.

Unidentified Justice: Thank you, Mr. Emery.

Mr. Zimroth, you have less than a minute left.

REBUTTAL ARGUMENT OF PETER L. ZIMROTH

Mr. Zimroth: Wow.

Very quickly.

Mr. Emery cites Franklin v. Krause as an example of the kind of case that this Court should give credence to.

That was a case in which the courts in New York rejected the Abate method and used a method of analysis similar to the one that we have suggested.

Mr. Emery is now, in effect, backing off from the court of appeals methodology.

Chief Justice William H. Rehnquist: Thank you.

The case is submitted.

Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 87-1022, New York Board of Estimate versus Morris and a related case will be announced by Justice White.

Argument of Justice White

Mr. White: The judgments of the Court of Appeals for the Second Circuit in these two cases are affirmed.

An opinion to that effect is on file with the Clerk.

Justice Brennan, joined by Justice Stevens, has filed a separate concurring opinion; Justice Blackmun has filed an opinion concurring in part and concurring in the judgment.