Full opinion text
OPINION AND ORDER SPATT, District Judge. “Within a given constituency, there can be room for but a single constitutional rule — one voter, one vote” (Gray v. Sanders, 372 U.S. 368, 382, 83 S.Ct. 801, 809, 9 L.Ed.2d 821 [1963]). In his concurrence in Gray, Justice Potter Stewart reaffirmed the right of political participation which reaches back to The Federalist Papers and forward to as yet unknown possibilities of electronic politics in the 21st century. One can only imagine what Hamilton, Madison and Jefferson would have thought of modern “PCs” and “MACs” humming overtime on complicated apportionment formulas. Yet despite the growth of our population and the development of our complex technology, the fundamental character of the right to vote remains paramount, surfacing from time to time in issues raised about both the quantity and quality of representation. Whether these questions arise at the national or neighborhood level, as they do in the instant case, the fundamental principle of “one person, one vote” is unchanging. What does change is how Government carries out its mandate to retain the vitality of that basic precept. In the case before the Court, eight voter-residents of Nassau County, in bringing this constitutional challenge, ask the Court to reexamine the structure of the legislative body which governs the County in light of the Supreme Court’s reaffirmance of the “one person, one vote” rule in New York City Bd. of Estimate v. Morris, 489 U.S. 688, 692-703, 109 S.Ct. 1433, 1437-1443, 103 L.Ed.2d 717 (1989). I. FACTUAL BACKGROUND A. The Parties The eight plaintiffs are registered voters in the Towns of Hempstead and Glen Cove. Specifically, George Jackson and Elaine Nesin are White voters in the Town of Hemp-stead; William Donald Stanford, Alonzo Hopkins, Kathryn Rogers, Carlos E. Mackey and David Ford are Black voters in the Town of Hempstead; and Francine Grier is a Black voter in the Town of Glen Cove. The defendant Nassau County Board of Supervisors, established in 1937 pursuant to the New York State Constitution, Article IX and Local Law of Nassau County Article 1, is the general legislative body for Nassau County. At the time this suit was commenced, the individual defendants held the following positions: Joseph Mondello, Presiding Supervisor of the Town of Hempstead; Gregory P. Peterson, Supervisor of the Town of Hempstead; Benjamin L. Zwirn, Supervisor of the Town of North Hempstead; Bruce Nyman, Supervisor of the City of Long Beach; Angelo A. Delligatti, Supervisor of the Town of Oyster Bay; and Donald P. DeRiggi, Mayor-Supervisor of the City of Glen Cove. The defendant Nassau County Board of Elections has the responsibility for conducting elections for the Board of Supervisors. Defendants Sinita Walker and John Matthews are Commissioners of the defendant Board of Elections and they are responsible for the conduct of the elections in Nassau County. Each individual defendant is sued in his or her official capacity. B. Jurisdiction Jurisdiction in this case is based upon 28 U.S.C. §§ 1331 (federal question), 1343 (civil rights), 1357 (injury under federal laws), and 2201 (declaratory judgments). This action is brought under the aegis of the Equal Protection Clause of the Fourteenth Amendment, the Fifteenth Amendment to the United States Constitution and pursuant to 42 U.S.C. §§ 1973, 1983 and 1985. C. The Complaint The Nassau County Board of Supervisors serves as the legislative body for Nassau County and is composed of elected representatives from the County’s five municipalities. As the largest municipality, the Town of Hempstead has two representatives on the Board; each of the other municipalities has one representative. These six lawmakers sitting on the Board are each “permitted to vote on proposed legislation in accordance with a weighted voting method devised by Prof. John F. Banzhaf III” (Complaint, ¶ 1). The particulars of the weighted voting plan are delineated at Points III and IV, infra. The Nassau County Board of Supervisors has, since 1917, used a system of weighted voting that gives more votes to Board members from the more populous towns and cities than to Board members from the less populous areas. The Banzhaf method assertedly is intended to allow “municipalities with disparate populations to be represented on the County Board while purporting to satisfy the constitutional requirement that representation be proportionate to population” (id.). The plaintiffs contend that the United States Supreme Court rejected the Banzhaf methodology in New York City Board of Estimate v. Morris, 489 U.S. 688, 109 S.Ct. 1433, 103 L.Ed.2d 717 (1989), stating that it was “an unrealistic approach [for] determining whether citizens have an equal voice in electing their representatives” (id. at 698, 109 S.Ct. at 1440). This suit consists of three causes of action. In their first claim, the plaintiffs allege that Nassau County’s weighted voting system, which uses the Banzhaf method, allocates votes to each municipality in a manner that is not directly proportional to the population of the municipalities and therefore violates on its face the “one person, one vote” principle mandated by the Equal Protection Clause of the Fourteenth Amendment. In their second cause of action, the plaintiffs assert that the manner in which the Banzhaf Index is applied to the structure and voting functions of the Board of Supervisors is unconstitutional. The third claim encompasses the alleged dilution of voting strength among Black and Hispanic voters in the County. With respect to this third claim, the plaintiffs contend that “the use of a weighted voting scheme which permits the creation of large districts and further permits, in Hempstead, the election of representatives on an at-large basis has the effect of diluting the electoral opportunities of the minority communities in Nassau County and of denying these communities fair and effective representation in violation of Section 2 of the Federal Voting Rights Act, 42 U.S.C. § 1973 et seq.” (Complaint, IF 2). Ultimately, the plaintiffs seek declaratory and injunctive relief to enforce the provisions of the First, Fourteenth and Fifteenth Amendments to the Constitution as well as Section 2 of the Voting Rights Act. D. Prior Constitutional Challenges to the Weighted Voting Plan The arguments asserted by both sides in this controversy contain various interpretations of the previous cases dealing with the principle of “one person, one vote” and the concept of weighted voting in several counties within New York State. Therefore, it is necessary to review the actions which provide the background for the instant challenge before turning to the merits of the motion now before the Court. (1) Iannucci v. Board of Supervisors In the mid-1960s, Washington County, a municipality in upstate New York, attempted to implement a plan of permanent reapportionment based on weighted voting (see Iannucci v. Board of Supervisors of Washington County, 27 A.D.2d 346, 279 N.Y.S.2d 458 [3d Dept.1967]). The Supreme Court at Special Term issued an order invalidating the plan as unconstitutional. On appeal, the Appellate Division, Third Department held that weighted voting on the county level as presented could not satisfy the “one person, one vote” mandate of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, rehearing denied, 379 U.S. 870, 85 S.Ct. 12, 13 L.Ed.2d 76 (1964). The court went on to note that weighted voting, “although not as unrepresentative as the historical representation by town supervisors, is unconstitutional and the only practical solution to the problem of reapportionment is by the method of district representatives based on population or, perhaps, by the county wide election of supervisors at large” (id., 279 N.Y.S.2d at 459). In reaching its decision, the Third Department observed that while weighted voting cures the previous favoritism in areas of smaller population, “it by the very system itself creates new inequities in terms of power” (id.). The board was directed to prepare and submit a permanent plan of reapportionment within ten days. It adopted an “Adjusted Weighted Voting Plan.” The New York State Court of Appeals thereafter reviewed the Washington County case, along with a reapportionment action from Saratoga County, and found that both boards as then constituted were “malapportioned” and violative of the “one person, one vote” principle (Iannucci v. Board of Supervisors of Washington County, 20 N.Y.2d 244, 249, 282 N.Y.S.2d 502, 506, 229 N.E.2d 195, 197 [1967]). In reaching this conclusion, the court cited Prof. John Banzhafs work on weighted voting, noting that the “significant standard for measuring a legislator’s voting power ... is not the number of fractions of votes which he may cast but, rather, his ‘ability ... by his vote, to affect the passage or defeat of a measure’” (id. at 251, 282 N.Y.S.2d 502, 229 N.E.2d 195, quoting Banzhaf, “Weighted Voting Doesn’t Work: A Mathematical Analysis,” 19 RUTGERS L.REV. 317, at 318). The court did not hold that weighted voting plans are unconstitutional per se, but did point out their fundamental flaws, as follows: “[t]he principle of one man-one vote is violated, however, when the power of a representative to affect the passage of legislation by his vote, rather than by influencing his colleagues, does not roughly correspond to the proportion of the population in his constituency. Thus, for example, a particular weighted voting plan would be invalid if 60% of the population were represented by a single legislator who was entitled to cast 60% of the votes. Although his vote would apparently be weighted only in proportion to the population he represented, he would actually possess 100% of the voting power whenever a simple majority was all that was necessary to enact legislation. Similarly, a plan would be invalid if it was ‘mathematically impossible’ for a particular legislator representing say 5% of the population to ever cast a decisive vote. Ideally, in any weighted voting plan, it should be mathematically possible for every member of the legislative body to cast the decisive vote on legislation in the same ratio which the population of his constituency bears to the total population. Only then would a member representing 5% of the population have, at least in theory, the same voting power (5%) under a weighted voting plan as he would have in a legislative body which did not use weighted voting — e.g., as a member of a 20-member body with each member entitled to east a single vote. This is what is meant by the one man-one vote principle as applied to weighted voting plans for municipal governments. A legislator’s voting power, measured by the mathematical possibility of his casting a decisive vote, must approximate the power he would have in a legislative body which did not employ weighted voting” (Iannucci, 20 N.Y.2d at 252, 282 N.Y.S.2d 502, 229 N.E.2d 195). In order to measure the mathematical voting power of each member of the county boards of supervisors, the court found that the opinions of experts using computer analyses would be necessary — an expensive proposition (id. at 252-253, 282 N.Y.S.2d 502, 229 N.E.2d 195). The court further found that the boards are not entitled to rely on a presumption that their legislative acts are constitutional. Such a presumption “is derived from the principle that it is improper for a court, in passing upon a constitutional question, to lightly disregard the considered judgment of a legislative body which is also charged with a duty to uphold the Constitution. With respect to weighted voting, however, a ‘considered’ judgment is impossible without computer analyses and, accordingly, if the boards choose to reapportion themselves by the use of weighted voting, there is no alternative but to require them to come forward with such analyses and demonstrate the validity of their reapportionment plans” (id. at 254, 282 N.Y.S.2d 502, 229 N.E.2d 195). Prophetically, the court’s last word was one of caution — that such reapportionment cases had the potential to drag the courts unnecessarily into a “mathematical quagmire” (id, citing Baker v. Carr, 369 U.S. 186, 268, 82 S.Ct. 691, 738, 7 L.Ed.2d 663 [1962]). (2) Franklin v. Mandeville In 1968, five plaintiffs, each of whom was a resident, taxpayer, and qualified voter of one of the three towns and two cities comprising Nassau County brought an action for declaratory judgment, seeking an order declaring unconstitutional Section 104 of the Nassau County Charter, Laws 1936, c. 879, as violative of the “one person, one vote” principle (see Franklin v. Mandeville, 57 Misc.2d 1072, 294 N.Y.S.2d 141 [Sup.Ct.Nassau Cty.1968]). Citing lannucci, the Supreme Court, Nassau County held that the concept of “one person, one vote” applied to local legislative bodies (id., 294 N.Y.S.2d at 146). Specifically, the court found that the scheme of apportionment which was mandated by the county charter failed to comply with the dictates of the Equal Protection Clause of the State and Federal Constitutions, and was therefore invalid in its entirety (id., 294 N.Y.S.2d at 147-148). Stating that the only conclusion which could be reached was that Section 104 was not in compliance, the court noted that “[t]he present plan is invalid because each citizen of the Town of Hempstead enjoys a voting status inferior to that of any other voter in Nassau County. These citizens cumulatively constitute substantially over 50 per cent of the County’s population, yet their representatives have less than 50 per cent of the Board’s total vote” (id., 294 N.Y.S.2d at 148). The court ultimately directed the defendants to submit a reapportionment plan consistent with the “one person, one vote” principle within six months of the judgment. On appeal, the Appellate Division, Second Department agreed with the findings of Special Term that the weighted voting plan for the election of Supervisors of the County of Nassau violated the “one person, one vote” precept as explained in Reynolds v. Sims (see Franklin v. Mandeville, 32 A.D.2d 549, 299 N.Y.S.2d 953, 954 [2d Dept.1969]). In affirming for the reasons stated in the opinion below, the Second Department noted that it was unnecessary to take testimony on whether the plan was also invalid under the premise set forth in lannucci in that it did not accord to each legislator the voting power measured by the mathematical possibility of his casting a decisive vote (id., 299 N.Y.S.2d at 955). The Court of Appeals affirmed the decision in principle but modified the order to direct that a valid reapportionment plan be adopted by the Board within six months after public announcement of the results of the 1970, rather than the 1960, federal census concerning the number of inhabitants in Nassau County (Franklin v. Mandeville, 26 N.Y.2d 65, 69-70, 308 N.Y.S.2d 375, 377, 256 N.E.2d 534, 535 [1970]). In referring to Section 104, the Court of Appeals observed that “inequality in some degree is mandated and, indeed, perpetuated by the charter provision ... a vital factor which distinguishes the case from Abate v. Mundt, 25 N.Y.2d 309, 305 N.Y.S.2d 465 [253 N.E.2d 189], recently decided” (id. at 69, 308 N.Y.S.2d 375, 256 N.E.2d 534). A brief word about Abate v. Mundt is necessary here since both parties rely to some extent on this ease as support for their arguments. In Abate, the New York Court of Appeals found that for the purpose of determining whether a particular plan of apportionment meets the requirements of the Equal Protection Clause, the question is whether the plan adequately apportions representatives on a population basis (Abate v. Mundt, 25 N.Y.2d 309, 314, 305 N.Y.S.2d 465, 466-467, 253 N.E.2d 189, 190-191 [1969]) (emphasis supplied). In response to a reapportionment suit brought by taxpayers, the Rockland County Board of Supervisors submitted a plan calling for a County Legislature of 18 members chosen from five districts corresponding to the county’s five constituent towns (id. at 313, 305 N.Y.S.2d 465, 253 N.E.2d 189). The smallest district with a population of 12,114 was assigned one representative in the County Legislature; the number of representatives of each of the other districts was determined by dividing the population of each remaining district by the population of the smallest district, with any fractional results rounded to the nearest integer (id.). In affirming the Appellate Division’s approval of the plan, the Court of Appeals observed that “the issue is not to be resolved merely in terms of a sterile mathematical exercise” and held that a 12% variation in the number of people per legislator was not of itself “sufficient to render the plan constitutionally defective” (id. at 314-315, 305 N.Y.S.2d 465, 253 N.E.2d 189). The Supreme Court granted certiorari in the case and affirmed the New York Court of Appeals decision upholding the plan (see Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 [1971]). In cautioning about apportionment structures that contain a built-in bias, the court found that there was no such indigenous bias in the Rockland County plan (id. at 186, 91 S.Ct. at 1907). In making that observation, the court also noted the following: “[w]e emphasize that our decision is based on the long tradition of overlapping functions and dual personnel in Rockland County government and on the fact that the plan before us does not contain a built-in bias tending to favor particular political interests or geographic areas. And nothing we say today should be taken to imply that even these factors could justify substantially greater deviations from population equality ” (id. at 187, 91 S.Ct. at 1908) (emphasis supplied). (3) Franklin v. Krause The Nassau County Board of Supervisors did not adopt a plan within the six month period mandated by the Court of Appeals, but rather introduced a plan on August 14, 1972, which it subsequently adopted on September 25, 1972 as Local Law No. 13-1972 (see Franklin v. Krause, 72 Misc.2d 104, 338 N.Y.S.2d 561, 563 [Sup.Ct., Nassau Cty. 1972]). Again the plaintiffs brought an action in Supreme Court, Nassau County for an order appointing a non-partisan commission to prepare a plan, asserting that since the Board of Supervisors had not acted within the specified time, the Board “forfeited the right to adopt a plan of its own” (id., 338 N.Y.S.2d at 562). The plaintiffs further contended that the plan adopted by the Board on September 25, 1972 was only a “warmed over version of one previously held unconstitutional by the Court of Appeals” and was itself unconstitutional. In setting the standard for the allocation of votes, Local Law No. 13-1972 provided for the following: “the ‘voting power’ of a Supervisor shall be measured ‘by the mathematical possibility of his casting a decisive vote on a particular matter.’ ... the percentages of voting power ‘shall approximate’ the corresponding percentages of population and it further guarantees that no town or city shall be wholly without voting power. Finally, in establishing its general standards for the system, the new plan requires that in preparing each reapportionment of votes defendant-Board shall employ ‘an independent computerized mathematical analysis’ and any other methods which shall ‘most nearly analyze’ the percentages of voting power and population” (id., 338 N.Y.S.2d at 563). Working with the assistance of an independent computerized analysis, the Board arrived at a total of 130 votes to be allocated, divided as follows: Hempstead — Presiding Supervisor (35 votes); Hempstead — Supervisor (35); Oyster Bay (32); North Hempstead (23); Long Beach (3); and Glen Cove (2) (id., 338 N.Y.S.2d at 564). The number of votes to achieve a majority was set at 71, while a “two-thirds” vote would require 92. “The computer then calculates the number of decisive votes each Supervisor may cast, then the respective percentages of voting power and, finally, for comparison purposes, the corresponding percentage of the population” (id.). In terms of relevant percentages and deviations, the new “majority” plan resulted in the following figures: Percentages of Population Percentages of Voting Power Deviation Hempstead (Total) 56.2 54.6 - 1.6 Oyster Bay 23.1 20.4 - 2.7 North Hempstead 16.5 13.0 - 3.5 Long Beach 2.3 5.6 + 3.3 Glen Cove 1.8 5.6 + 3.8 A “two-thirds” vote would require the following: Percentages Percentages of of Population Voting Power Deviation Hempstead (Total) 56.2 50.0 - 6.2 Oyster Bay 23.1 20.8 - 2.3 North Hempstead 16.5 20.8 + 4.3 Long Beach 2.3 4.2 + 1.9 Glen Cove 1.8 4.2 + 2.4 According to the Board of Supervisors, this schematic satisfied the standard set in Iannucci v. Board of Supervisors, supra, 20 N.Y.2d at p. 282, 282 N.Y.S.2d 502, 229 N.E.2d 195. However, the Supreme Court, Nassau County disagreed, noting that the plan “by giving Hempstead 70 votes and requiring 71 votes for a majority allows Hempstead about 54% of the votes but requires about 54.6% of the votes to carry” (id.). This would require at least one vote from another municipality on the Board for a measure to carry, even though Hempstead had 56.27% of the population. As the court summarized, “under the Plan now adopted, the Hempstead Supervisors are still barred from exercising a majority vote” (id., 338 N.Y.S.2d at 565). In addition, under this Plan, the City of Glen Cove was given voting power “greater than three times its share of its population and voting power equal to the City of Long Beach, which has one-third greater population than the City of Glen Cove” (id.). In its opinion, the court also cited sections of then County Executive Ralph Caso’s veto message concerning the plan: “ ‘In effect, the proposed law would retain the present Board of Supervisors without material change.... The proponents of the local law urge that the amendments now contain a constitutionally valid plan of reapportionment when considered in terms of “voting power” as determined by a computer. While weighted voting is not illegal per se, the mathematical gyrations necessary to preserve some effective voting power for the smaller political units represented on the Board require the destruction of principles of majoritarean democracy. And, while this principle is not inviolate in those circumstances where a practical and rational basis exists for deviation, it cannot be ignored in the face of viable alternatives. To say that a majority is not a majority for the mere sake of preserving one of many available forms of reapportionment is an unnecessary debasement of the rights of the voters’ ” (id., 338 N.Y.S.2d at 565-566). The court went on to note that weighted voting was looked upon by most courts, including the Court of Appeals, as an “interim” or “stopgap” measure, not one that was constitutionally acceptable as a permanent plan of reapportionment (id., citing Graham v. Board of Supervisors, 18 N.Y.2d 672, 674, 273 N.Y.S.2d 419, 421, 219 N.E.2d 870, 871 [1966]). Relying on decisions such as Graham, the court concluded that “from the standpoint of weighted voting, the plan adopted September 25, 1972 by the defendant-Board does not comply with the requirements set by the New York Court of Appeals” and was therefore unconstitutional as violative of the Equal Protection Clause of the State and Federal Constitutions (id., 338 N.Y.S.2d at 569). The court then directed the Board to propose a new plan “based upon a system not utilizing weighted voting” within sixty days (id., 338 N.Y.S.2d at 570). Upon direct appeal, the Court of Appeals reviewed the plan and noted that even though the “smaller communities are super-enfranchised to a somewhat greater extent than the larger communities are disenfranchised ... the range of deviation is only 7.3% and the plan fits comfortably within the intendment of Iannucci v. Board of Supervisors of County of Washington [citations omitted] as affected by subsequent case law” (Franklin v. Krause, 32 N.Y.2d 234, 237, 344 N.Y.S.2d 885, 887, 298 N.E.2d 68, 69, reargument denied, motion to amend remittitur granted, 33 N.Y.2d 646, 348 N.Y.S.2d 554, 303 N.E.2d 71 [1973] appeal dismissed for want of a substantial federal question, 415 U.S. 904, 94 S.Ct. 1397, 39 L.Ed.2d 461 [1974]). The Court of Appeals cited Judge Burke’s words in Abate v. Mundt that “variations from a pure population standard might be justified by such state policy considerations as the integrity of political subdivisions, the maintenance of compactness and contiguity in legislative districts or the recognition of natural or historical boundary lines” (id. at 239, 344 N.Y.S.2d 885, 298 N.E.2d 68, quoting Abate v. Mundt, 25 N.Y.2d at 316, 305 N.Y.S.2d 465, 253 N.E.2d 189). However, in Matter of Schneider v. Rockefeller, 31 N.Y.2d 420, 340 N.Y.S.2d 889, 293 N.E.2d 67 (1972), the Court of Appeals cautioned that Abate v. Mundt was applicable only to units of local government, with apportionment problems distinct from their state and national counterparts (id. at 428, 340 N.Y.S.2d 889, 293 N.E.2d 67). The court in Krause placed particular reliance on footnote 3 of the Schneider opinion which, according to Judge Gabrielli, “distills the more recent thinking that the one man, one vote ideal, while not to be abandoned at the local level, can at least be tempered to meet local exigencies and preserve boundary lines. The plan before us comports with the standards set forth in Iannucci v. Board of Supervisors of County of Washington [citations omitted] as closely as is possible, given the unique situation created by Hempstead’s size with the disparities in population among the other units. The fact that the plan still carries the problem found decisive in Franklin v. Mandeville should not constitute a continuing bar to validation. sfc sfc The plan before us has been ‘computerized’ as suggested by the lannucci requirement and moves close to one man, one vote without granting Hempstead 100% voting power. The total deviation is 7.3%, a tolerable figure within the contemplation of Abate and other recent cases____ In no way are we suggesting that the one man, one vote principle be abandoned at the local level. We will continue to insist that this ideal be the goal and that lannucci be the guide. We merely conclude that the plan before us meets a sufficient standard when measured against the law as it now is with regard to local government. This law has assumed a desirable practicality because it allows for flexibility — something which at least prior to Abate v. Mundt [citations omitted] was lacking” (id. at 242, 344 N.Y.S.2d 885, 298 N.E.2d 68) (emphasis supplied). Based on these findings, the Court of Appeals held there was no constitutional infirmity in Local Law No. 13-1972. The Supreme Court received the case under its mandatory appellate jurisdiction, 28 U.S.C. § 1257(2), but dismissed for want of a substantial federal question (Franklin v. Krause, 415 U.S. 904, 94 S.Ct. 1397, 39 L.Ed.2d 461 [1974]). (4) Bechtle v. Board of Supervisors Another constitutional challenge to the Nassau County Board of Supervisors was brought by a group of resident taxpayers in 1980. The Appellate Division, Second Department heard the appeal of the Supreme Court, Nassau County’s grant of summary judgment in favor of the defendants dismissing the complaint (Bechtle v. Board of Supervisors of County of Nassau, 81 A.D.2d 571, 441 N.Y.S.2d 403 [2d Dept.1981]). In a Memorandum Decision, the Second Department affirmed the judgment, stating that “[t]he doctrine of stare decisis precludes this court from making a different determination on the merits of this matter” (id.). However, the court added that “[i]n our opinion, questions of law have arisen which ought to be reviewed by the Court of Appeals” (id.). The Court of Appeals, in a Memorandum Decision, stated simply that “[o]n summary consideration ... order affirmed with costs [see Franklin v. Krause, 32 N.Y.2d 234, 344 N.Y.S.2d 885, 298 N.E.2d 68, app. dmsd. 415 U.S. 904, 94 S.Ct. 1397, 39 L.Ed.2d 461 ...]” (Bechtle v. Board of Supervisors of County of Nassau, 54 N.Y.2d 674, 442 N.Y.S.2d 509, 425 N.E.2d 897 [1981]). (5) League of Women Voters v. Board of Supervisors In 1982, five registered voters as well as the League of Women Voters of Nassau County brought an action in the Federal Court for the Eastern District of New York seeking a declaratory judgment that Local Law 2-1982, which amended Section 104(5) of the Nassau County Government Law, was unconstitutional as violative of the Equal Protection Clause of the Fourteenth Amendment. In their Answer, the defendant Supervisors and the Board asserted the affirmative defense of “res judicata and/or stare decisis” based on Franklin v. Krause, 32 N.Y.2d 234, 344 N.Y.S.2d 885, 298 N.E.2d 68 (1973) (see League of Women Voters of Nassau County v. Nassau County Board of Supervisors, CV 82-1607 [E.D.N.Y. May 18, 1983] [Mishler, J.]). Section 104, sub-paragraph 3 of the Nassau County Government Law required the Board of Supervisors to amend subdivision 5 “not later than six months after the publication of the results of each federal decennial census ... [to] propose a reapportionment of the voting power of the members of the board of supervisors” (id. at 2-3). Section 104(4)(h) required the Board to employ an independent computerized mathematical analysis in preparing each reapportionment and “such other method or methods as shall most nearly equalize the percentage of voting power of each town and city to its percentage of the total county population.” When the 1980 census was published, the Board hired an expert to prepare such an analysis (id.). The Board of Supervisors adopted Local Law 2-1982 on March 8, 1982, amending Section 104(5) by providing for a total of 108 votes to reflect the population decrease in the County, with 65 votes necessary for a majority (id.). The revised percentages and deviations appeared as follows: Percent Percent of No. of Voting Municipality Population Population Votes Power Hempstead 738,517 55.92 * 58 53.85 Oyster Bay 305,750 23.12 22 21.15 No. Hempstead 218,624 16.53 15 17.31 Long Beach 34,073 2.58 7 5.77 Glen Cove 24,618 1.86 6 1.92 The presiding supervisor was assigned 30 votes; the supervisor was assigned 28 votes. In discussing the impact of the prior New York Court of Appeals decision in Franklin v. Krause, the court noted that the plaintiffs themselves conceded that the range of deviation under then Section 104(5) was smaller than the 7.3% range of deviation which the court upheld in Krause (id. at 5). However, the plaintiffs argued that the court in Franklin v. Krause miscalculated the range of deviation, and that the correct method of computation would result in a 232% deviation (id.). In applying the methodology he believed was espoused in Krause, the court arrived at a range of deviation of either 6.15% or 5.26%, “depending on whether the voting power of the presiding supervisor and supervisor of Hempstead is combined or considered separately” (id. at 6). These figures were calculated by adding Glen Cove’s 3.8% overrepresented voting power with North Hempstead’s 3.5% underrepresented voting power. These figures were reflected in the following table: Percentages of Population Percentages of Voting Power Deviation Hempstead 27.96 28.85 + .89 Pres. Supv. Supervisor Hemp. 27.96 25.00 -2.96 Total: 55.92 53.85 -2.07* Oyster Bay 23.12 21.15 -1.97 North Hempstead 16.53 17.31 + .78 Long Beach 2.58 5.77 + 3.19** Glen Cove 1.86 1.92 + .06 * Most underrepresented ** Most overrepresented Range of Deviation: 2.07 + 3.19 = 5.26% The plaintiffs suggested that the degree of over or underrepresentation was “not simply the discrepancy between population and voting power, but rather the ratio of that figure to the municipality’s population” (id. at 7). The plaintiffs then asserted that their approach was the proper mathematical method for testing a weighted voting plan under the standard set forth in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). However, the court found no such suggestion in Reynolds, and observed that the violation in Reynolds was the failure to make population the controlling factor in apportioning the legislature. Relying on Abate v. Mundt, supra, 403 U.S. at 184-186, 91 S.Ct. at 1906-1907, Judge Mishler stated the following: “[u]nder Local Law 2-1982, population is the controlling though perhaps not the only factor in the apportioning of weighted votes among the municipalities in Nassau County. Moreover, the relative voting strength of the municipalities parallels their relative populations. The Constitution does not require more. The County acted properly in permitting some variance from ideal population to voting power ratios in order to preserve existing subdivision lines and the existing legislative structure” (id. at 9-10). Ultimately, the court granted the defendants’ motion for summary judgment and dismissed the complaint, finding the appointment plan contained in Local Law 2-1982 to be an “adequate compromise between the constitutional one man, one vote requirement and the County’s interest” in preserving the legislative structure (id. at 12). On appeal, the Second Circuit found that the League of Women Voters did not have standing under section 1983 to assert the rights of its members in challenging the weighted voting system (see League of Women Voters v. Nassau County Bd., 737 F.2d 155 [2d Cir.1984], cert. denied sub nom., Schmertz v. Nassau County Board of Supervisors, 469 U.S. 1108, 105 S.Ct. 783, 83 L.Ed.2d 778 [1985]). The Court of Appeals further found that the plaintiff-voters who resided in the overrepresented municipalities also lacked standing because they could not claim any injury (id. at 161). The inquiry on appeal, then, was limited to the plaintiffs who lived in underrepresented municipalities (id. at 162, citing Baker v. Carr, 369 U.S. at 206, 82 S.Ct. at 704). With regard to the remaining plaintiffs’ challenge to Nassau County’s weighted voting system as a whole, the Second Circuit agreed with the defendants that the Supreme Court’s summary adjudication in Franklin v. Krause, 32 N.Y.2d 234, 344 N.Y.S.2d 885, 298 N.E.2d 68 (1973), appeal dismissed, 415 U.S. 904, 94 S.Ct. 1397, 39 L.Ed.2d 461, upholding the weighted voting system as a whole, was dispositive of the constitutionality issue regarding Local Law 2-1982 (League of Women Voters, 737 F.2d at 162). Citing Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975), the Second Circuit drew attention to the Supreme Court’s clarification of the import of its summary adjudications on later lower court decisions (id.). Specifically, in Hicks, the Supreme Court held that lower courts are bound by summary actions on the merits, but that “ ‘ascertaining the reach and content of summary actions may itself present issues of real substance.’ Because a summary affirmance is an affirmance of the judgment only, the rationale of the affirmance may not be gleaned solely from the opinion below” (Fusari v. Steinberg, 419 U.S. 379, 391-392, 95 S.Ct. 533, 540, 541, 42 L.Ed.2d 521 [1975] [Burger, C.J., concurring], quoting Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223). In Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 2240 (1977), the Supreme Court further underscored the duties of lower courts on summary adjudications: “[s]ummary affirmances and dismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction and do leave undisturbed the judgment appealed from. They do prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions____ Summary actions ... should not be understood as breaking new ground but as applying principles established by prior decisions to the particular facts involved” (id. at 176, 97 S.Ct. at 2240). The Second Circuit’s opinion in League of Women Voters has further ramifications affecting this case which are discussed later in this opinion. With regard to this case, all argument would have ceased of necessity at this point in the historical review of the pertinent precedents on the basis of Franklin v. Krause if not for the Supreme Court’s decision in Board of Estimate v. Morris, 489 U.S. 688, 109 S.Ct. 1433, 103 L.Ed.2d 717 (1989). Following along this judicial path in the “one person, one vote” field, it is essential for the Court to scrutinize closely the Supreme Court’s holding in Morris, upon which the plaintiffs first two causes of action hinge. (6) Morris v. Board of Estimate By the time the Second Circuit had rendered its opinion in League of Women Voters, a Federal Court in the Eastern District of New York had already fired the opening salvo in Morris v. Board of Estimate, 551 F.Supp. 652 (E.D.N.Y.1982). The original suit was brought by three Brooklyn residents in December, 1981, charging that the New York City Board of Estimate deprived them of equal protection under the Fourteenth Amendment, and specifically that sections 61 and 62 of the New York City Charter devalued their ballots by violating the “one person, one vote” rule. The District Court granted summary judgment to the defendants in December, 1982, finding that the Board of Estimate was not subject to the constitutional principle of “one person, one vote” (id. at 657). At this point, it is necessary to provide an abbreviated factual background concerning the make-up and responsibility of the Board of Estimate. The Board was comprised of three city-wide officials, namely, the Mayor, the Comptroller, and the City Council President as well as the presidents of the five boroughs of New York City. The city-wide officials were elected to their offices by majority vote of the entire voting electorate. The five borough presidents, on the other hand, were elected only by the voters residing in their individual boroughs and each exercised a single vote. The city-wide officials exercised two votes each, for a total of six, which constituted a majority (id. at 654). In Morris, the plaintiffs contended that such an equal distribution of voting power among the borough presidents was an “unconstitutional dilution of the voting rights of Brooklyn residents who substantially outnumber the populations of the other boroughs, especially the considerably less populous Borough of Richmond (Staten Island)” (id. at 653). The defendants responded that the Board “as a unique instrumentality of local government” was not subject to the “one person, one vote” principle (id.). Reasoning that the Board was not an elected body, but rather consisted of a group of public officials who were already constitutionally elected to their respective offices as required by law, the District Court held that the Board was not subject to the “one person, one vote” rule. The court distinguished the ease from prior cases such as Abate v. Mundt, on the basis that the malapportionment in prior actions dealt with elected governing bodies (id. at 656-657). On appeal, the Second Circuit stated that the court’s fundamental task was to “determine whether the Board of Estimate is selected by ‘popular election’ and whether it performs ‘governmental functions’ ” (Morris v. Board of Estimate, 707 F.2d 686, 689 [2d Cir.1983]). In reversing the District Court, Judge Lasker observed the following: “[ujpon election to their respective positions, they automatically become Board members as a matter of law.... It follows that the Board of Estimate is not an appointed body; its membership is definitively determined by election and by election alone. Moreover, the question of applicability of the Equal Protection Clause to ‘ex officio’ boards was settled in this Circuit in Bianchi v. Griffing, 393 F.2d 457 (2d Cir.1968). In Bianchi; we held the one person, one vote principle applicable to a county board of supervisors selected in a manner virtually indistinguishable from the process by which the Board of Estimate is chosen.” (id.). Based on the fact that the Board was selected by popular election and performed general governmental functions, the Second Circuit concluded that the principle of one person, one vote applied. In remanding the case, the court stated that the District Court must decide on an appropriate methodology and determine the degree of malapportionment and “rule on the policies and interests which the Supreme Court has held may justify deviations from the literal one person, one vote formula” (id. at 690). On remand, the parties stipulated to a bifurcated proceeding. The first phase would be geared to identifying the “most suitable mathematical measure” to superimpose “over the Board’s electoral scheme to ascertain the malapportionment” (Morris v. Board of Estimate, 592 F.Supp. 1462, 1464 [E.D.N.Y.1984]). If the results yielded more than a minor deviation, the second phase of the proceeding would focus upon the acceptability of that variation in the context of prior Supreme Court decisions (id.). As the District Court noted, the typical issue in a reapportionment case is “whether the population deviations from the average district are impermissibly large____” (id.). However, the court also added that fair apportionment has another dimension — the qualitative aspect. The court went on to explain: “[t]he quantitative dimension — captured by the one-person-one-vote standard — requires that each individual’s vote be of equal weight, and is compromised when districts are of unequal population. Mere numerical equality among voting districts, however, ‘does not guarantee “substantive equality in the sharing of power.”’ The qualitative dimension, therefore, requires that individuals be able to act in effective voices in representation” {id., quoting “The Supreme Court 1982 Term — Elections, 97 HARV.L.REV. 135, 139 [1983] [emphasis in the original]). The plaintiffs in Morris limited their attack to the quantitative aspect, and as such, the suit’s outcome was “governed mainly by the Board’s variance from the one person, one vote principle” (Morris v. Board of Estimate, 592 F.Supp. at 1466). In Brown v. Thomson, 462 U.S. 835, 842, 103 S.Ct. 2690, 2696, 77 L.Ed.2d 214 (1983), the Supreme Court indicated that an apportionment plan with a maximum population deviation under 10% falls within the category of “minor deviation.” Acting on the Second Circuit’s directive, the District Court found that the simple population-based methodology offered in Abate v. Mundt was the appropriate choice, irrespective of the at-large representation — the maximum percentage deviation was to be determined by adding the percentage deviation above the population mean of the district with the greatest number of voters to the percentage deviation below the population mean of the district with the fewest number of voters {id. at 1467). In applying this formula, the disproportion between the population of Brooklyn (- 57.7% deviation) and Staten Island (+ 75.2% deviation) as calculated under the Abate test resulted in a maximum deviation of 132.9%, thereby clearly raising an appearance of unconstitutionality (id. at 1470, 1475). The District Court ultimately determined that further proceedings were necessary to ascertain whether the deviation was justified. The defendant Board appealed to the Second Circuit, raising two issues: (1) whether the court below correctly adopted the Abate test, “which looks only to the relative power of voters to elect representatives, and therefore focuses almost entirely on the simple question of population per representative”; and (2) whether the court below “should have included the at-large representatives on the Board in any calculation of voting inequality” (Morris v. Board of Estimate, 831 F.2d 384 [2d Cir.1987]). The Board strenuously argued that the court should have applied the Banzhaf Index — to calculate the at-large representatives, instead of the strict population-based Abate test which computed only the representation per borough president — to measure the power of voters in the various boroughs to affect the outcome of a Board vote {id.). Applying the Banzhaf Index would have required inclusion of the at-large representatives since the outcome of a Board vote “will often turn on how one of the at-large members casts his vote” {id. at 387). At this juncture, and for the sake of clarity in dealing with the heart of the issues in this ease, it is necessary to discuss the “Banzhaf method,” keeping in mind the cautionary words of the court in Iannucci to avoid being dragged unnecessarily into a “mathematical quagmire.” The Court finds that perhaps the clearest explanation of the Banzhaf method appears in footnote 23 of the Supreme Court’s opinion in Whitcomb v. Chavis, 403 U.S. 124, 162-163, 91 S.Ct. 1858, 1878-79, 29 L.Ed.2d 363 (1971). Whitcomb was a legislative reapportionment case reversed by the Supreme Court upon a finding that there were impermissible variances between the Indiana senate and house districts which violated the Equal Protection Clause. The claims asserted in Whit-comb were based on the Banzhaf voting-power method of measuring voter equality. Writing for the majority, Justice White set forth the following: “[t]he mathematical backbone of this theory is as follows: In a population of n voters, where each voter has a choice between two alternatives (candidates), there are 2 n possible voting combinations. For example, with a population of three voters, A, B, and C, and two candidates X and Y, there are eight combinations: A B C #1. X X X #2. X X Y #3. X Y X #4. X Y Y #5. Y X X #6. Y X Y #7. Y Y X #8. Y Y Y The theory hypothesizes that the true test of voting power is the ability to cast a tie-breaking, or critical vote. • In the population of three voters as shown above, any voter can cast a critical vote in four situations; in the other four situations, the vote is not critical since it cannot change the outcome of the election. For example, C can east a tie-breaking vote only in situations 3, 4, 5, and 6. The number of combinations in which a voter can cast a tie-breaking vote (Mr — 1)! is 2 . _, where n is the 11 - -1 n - -1 _ i . _ i ’ . 2 ’ 2 number of voters. Dividing this result (critical votes) by 2n (possible combinations), one arrives at that fraction of possible combinations in which a voter can cast a critical vote. This is the theory’s measure of voting power.... ” (403 U.S. at 146, n. 23, 91 S.Ct. at 1870, n. 23). The Banzhaf strategy therefore attempts to weight the power of representatives to cast decisive votes in proportion to the population that each legislator represents. The Supreme Court refused to adopt the Banzhaf analysis in Whitcomb v. Chavis because the “position remains a theoretical one” and was unrealistic in not taking into account “any political or other factors which might affect the actual voting power of the residents, which might include party affiliation, race, previous voting characteristics or any other factors which go into the entire political voting situation” (id. at 146, 91 S.Ct. at 1870). Additional discussion of the Banzhaf method is found later in this opinion. For the moment, it is enough to keep in mind that the crux of the Banzhaf theory is that the true test of voting power is the ability to east a tie-breaking, or critical vote. Dealing with the first prong of the defendant Board of Estimate’s argument in Morns, the Second Circuit held that the District Court properly adopted the Abate theory “that what the equal protection clause requires be equalized among voters is their ‘share’ of representatives on the governmental body in question” (Morris v. Board of Estimate, 831 F.2d at 387). In the simplest of eases, where there is no weighted voting, Abate requires only “that the court look to the number of citizens in each representative’s district; equality is achieved where those numbers are equal” (id.). The Second Circuit rejected the Banzhaf analysis, noting that “[w]e are similarly persuaded that the Banzhaf index is an insufficiently realistic measure of voter equality to provide the basis of a Fourteenth Amendment analysis of voter equality. It is unrealistic in a general sense involving voter motivation; and it is unrealistic in a particular sense as it applies to citizen voting power through the Board of Estimate. As a result, the Banzhaf index does not sufficiently reflect ‘[t]he real life impact of [the makeup of the Board of Estimate and the way its members are elected] on individual voting power ... to warrant departure from prior cases’ ” (Morris v. Board of Estimate, 831 F.2d at 390, quoting Whitcomb v. Chavis, 403 U.S. at 146, 91 S.Ct. at 1870). In the end, the Second Circuit found that the Banzhaf analysis is “seriously defective in the way its measures Board members’ power to determine the outcome of a Board vote” (id.). In considering the fact that the Borough of Brooklyn was six times as populous as Staten Island, the Second Circuit found that there were “serious inequalities of representation” as the application of the Abate test demonstrated (id. at 392). In noting that the Abate test measures the representation of people, not of interests, the court stated that it had complied with the Supreme Court’s insistence that the Equal Protection Clause requires “the equalization of voter representation, not interest representation” (id.). The court concluded that “... [t]he design of the Board, which gives equal weight to each borough’s interests, has devalued concomitantly the votes of individual residents of Brooklyn and Queens, and has grossly overvalued the votes of Staten Island residents. The result is exactly what the Equal Protection clause forbids: ‘the elevation of a small class of “supervoters” granted an extraordinarily powerful franchise’” (id. at 393, quoting Brown v. Thomson, 462 U.S. 835, 856, 103 S.Ct. 2690, 2703, 77 L.Ed.2d 214 [1983] [Brennan, J., dissenting]). Having arrived at a maximum deviation from voter equality of 132.9%, the Second Circuit turned to the issue of whether the Board’s structure was justified by “considerations of such moment that they outweigh this gross deviation from equality” (id.). The burden of justification rested with the defendants, and in the end, the Second Circuit held that the City’s explanations for the variance neither required nor justified such a gross deviation (id.). Having granted certiorari, the Supreme Court found that the Board of Estimate’s structure was inconsistent with the Equal Protection Clause of the Fourteenth Amendment in that, although the boroughs had widely disparate populations, each had equal representation on the board (New York City Bd. of Estimate v. Morris, 489 U.S. 688, 692-703, 109 S.Ct. 1433, 1437-1443, 103 L.Ed.2d 717 [1989]). The court agreed with the Second Circuit that “the population-based approach of our cases from Reynolds to Abate should not be put aside in this litigation” (id. at 698, 109 S.Ct. at 1440), and further observed that it had previously declined to accept the Banzhaf methodology, albeit in a different context, in Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971). Following up on the Second Circuit’s skepticism of the manner in which the defendant City of New York measured the power of Board of Estimate members to determine the outcome of a Board vote, the court through Justice White enunciated its strongest remarks to date concerning the method it preferred for assuring effective representation: “[i]t may be that in terms of assuring fair and effective representation, the equal protection approach reflected in the Reynolds v. Sims line of cases is itself imperfect, but it does assure that legislators mil be elected by, and represent citizens in, districts of substantially equal size. It does not attempt to inquire whether, in terms of how the legislature actually works in practice, the districts have equal power to affect a legislative outcome. This would be a difficult and ever-changing task, and its challenge is hardly met by a mathematical calculation that itself stops short of examining the actual day-to-day operations of the legislative body” (489 U.S. at 699, 109 S.Ct. at 1441) (emphasis supplied). The Supreme Court did, however, differ with the Second Circuit on the issue of whether the presence of at-large members on the Board should be factored into the process of determining the deviation between the greater and lesser populated boroughs. The Supreme Court found the at-large members to be a “major component in the calculation and should not be ignored” (id. at 701, 109 S.Ct. at 1442). Looking to the pleadings filed with the District Court, the Supreme Court noted that the appellees indicated that the deviation would then be reduced to 78% — a deviation which the Court found was still not justifiable (id. at 702, 109 S.Ct. at 1442). In finding the structure of the Board of Estimate to be violative of the Equal Protection Clause, the Supreme Court unanimously reaffirmed its position that the one person, one vote requirement applies to elected local governments. The Court was also unanimous in rejecting the Banzhaf Index for calculating the deviation of different sized districts from population equality. The primary issue before this Court, in light of Moms, is whether the weighted voting structure of the Nassau County Board of Supervisors can survive the Supreme Court’s rejection of the Banzhaf Index and its reaffirmation of the fundamental equal population voting district. II. PROCEDURAL SETTING The defendants Nassau County Board of Supervisors and the individual supervisors sued in their official capacities move, pursuant to Fed.R.Civ.P. 56, for partial summary judgment dismissing the first and second causes of action. The defendants are not moving at this time with regard to the third cause of action, which asserts a violation of section 2 of the Voting Rights Act of 1965 based on dilution of voting strength. The thrust of the defendants’ argument is that the Supreme Court’s prior summary adjudication in Franklin v. Krause is dispositive, and that the plaintiffs’ challenge to the weighted voting system must be dismissed as a matter of law. The Board urges this Court to reject the plaintiffs’ assertion that the Supreme Court’s decision in Board of Estimate v. Morris has “implicitly overruled the line of previous judicial decisions upholding the constitutionality of the Board of Supervisors’ weighted voting system” (Defendants’ Memorandum of Law at p. 2). A. Weighted Voting As Utilized By the Board of Supervisors The defendants state that the votes allocated to each member of the Board of Supervisors is determined according to Section 104 of the Nassau County Charter, which provides as follows: “4. In determining and fixing the total number of votes, the distribution of votes among the supervisors, and the number of votes needed to pass particular measures, the board of supervisors shall as closely as possible apply and conform to the following standards: a. There shall be a modified weighted voting system. b. The total number of votes of all supervisors shall be no less than six, and shall not exceed the county’s total population. c. No fractional votes shall be used or recognized. d. The total number of votes which each supervisor is entitled to east shall not be divided and shall be cast as one unit. e. The voting power of a supervisor shall be measured by the mathematical possibility of his casting a decisive vote on a particular matter. f. The voting power of a town or city shall be deemed equal to the voting power of its supervisor except that the voting power of the town of Hempstead shall be deemed equal to the total power of its two supervisors. g. The percentage of voting power of each town and city shall be greater than zero and shall approximate the town’s or city’s percentage of the total county population. h. In preparing each reapportionment, the board of supervisors shall employ an independent computerized mathematical analysis and such other method or methods as shall most nearly equalize the percentage of voting power of each town and city to its percentage of the total county population” (emphasis supplied). Using the Banzhaf Index, a citizen’s voting power through each representative is calculated by dividing the representative’s voting power by the square root of the population represented. According to the defendants, the distribution of votes among the supervisors, based upon the results of the 1980 census and the requirements of Section 104 of the Charter, is as follows: • Presiding Supervisor, Town of Hempstead 30 votes • Supervisor, Town of Hempstead 28 votes • Supervisor, Town of Oyster Bay22 votes • Supervisor, Town of North Hempsteadl5 votes • Supervisor, City of Long Beach7 votes • Mayor, City of Glen Cove6 votes (Nassau County Local Law 2-1982). A majority of 65 votes is required in order for the Board to pass any resolution. The defendants maintain that the Board of Supervisors has adopted the formula approved by the United States Supreme Court in Franklin v. Krause, 32 N.Y.2d 234, 344 N.Y.S.2d 885, 298 N.E.2d 68 (1973), appeal dismissed, 415 U.S. 904, 94 S.Ct. 1397, 39 L.Ed.2d 461 (1974). Applying that formula results in a maximum deviation from voter equality equal to 5.25%. This figure represents the calculation of the Town of Hempstead’s deviation of — 2.07% with the City of Long Beach’s + 3.19%. To illustrate, the defendants present the following chart: Municipality Population Percent of Pop. Percent Voting Power Deviation Hempstead 738,517 55.92% 53.85% -2.07% Oyster Bay 305,750 23.12% 21.15% -1.97% No. Hempstead 218,624 16.53% 17.31% + .78% Long Beach 34,073 2.58% 5.77% + 3.19% Glen Cove 24,618 1.86% 1.92% + .06% According to the defendants, this model reflects the existing structure of the Board of Supervisors. The defendants made a lengthy analysis of the prior challenges to the constitutionality of the weighted voting system in Nassau County. Essentially, however, the defendants argue that the Supreme Court’s determination in Franklin v. Krause is dispositive and is not diluted by Board of Estimate v. Morris: “[i]n Board of Estimate v. Morris, the Supreme Court did not reject the Banzhaf method as a means to determine the weight to be assigned a legislator’s vote in a weighted voting system. That issue was simply not presented. The Supreme Court’s criticism of the Banzhaf method in Board of Estimate v. Morris was limited to its unreliability as a tool for measuring deviation.... Nor can it be successfully argued that the Supreme Court signaled a doctrinal change by its renewed criticism of the Banzhaf method as a tool for measuring deviation” (Defendants’ Memorandum of Law at p. 30). The defendants further argue that the Supreme Court criticized the Banzhaf method as a means to determine deviation and specifically note that the Nassau County Board of Supervisors does not utilize the Banzhaf method for this purpose. Stressing that Morris did not involve a challenge to weighted voting, the defendants state that such voting is designed to allocate voting power to a legislator based upon the percentage of the residents of the county residing in his town. According to the defendants, such a system is clearly distinguishable from the system examined in Morris which “gave an additional vote to the citywide members to ensure that the three citywide members could constitute a majority” and which, “given the significant difference in population between the city and the boroughs” clearly shows that the “votes were not weighted based on population” (Defendant’s Memorandum of Law at p. 34). The defendants conclude that Monis involved questions of appropriate methodology for determining percentages of' deviation from ideal population in a “non-weighted voting