Illuzzi letter

When U.S. District Judge John T. Elfvin rejected Democrats' bid to throw out weighted voting, and force elections this fall under new boundaries, he almost certainly was guaranteed an appeal.

According to County legislator David Dale, a ‘plaintiff intervener’ in the case, that is exactly what will happen.

The Democrats want to end weighted voting since it gives control of the Legislature to Republicans. Under the weighted voting system, the votes of some legislators count for more than one vote, while others count as less; Dale’s 5th district, for instance, one which lost population over the last decade, allows him .89% of one vote. As is well known under the court imposed weighted voting scheme, the legislature's seven Republicans, plus Chairman Albert DeBenedetti - a Democrat aligned with them - have the slimmest of majorities; collectively these eight represent about 150 more people in the entire County than the nine other Democrats. Still that slim majority allows them almost total control of the legislature.

Judge Elfvin originally imposed the weighted vote as an interim measure and, significantly, not a final order, on August 8, 2001 and ordered the legislature to come up with a plan by March 15, 2002, or risk a court-imposed 17 member reapportionment plan. The March date came and went; the Republicans, with DeBenedetti, opted to bypass a 17 member plan in favor of a plan to reduce the legislature by two members - both Democrats, a plan that requires a referendum for approval, and, on Friday, Judge Elfvin ruled that weighted voting could remain in effect after the referendum, and throughout, if need be, the entire legislative cycle.

If voters approve the referendum to reduce the legislature, wieghted voting will continue and candidates for the Republican "15" plan will appear on the ballot for the November, 2003 election, and members will take their 15 seats in January 2004. If voters defeat the referendum, weighted voting will continue until either Erie County enacts a 17-member redistricting plan, or the court imposes a redistricting plan, Elfvin wrote in his decision.

Dale, one of two legislators whose district was chopped by the Republican 15 member plan charged that the Judge was politically motivated in his decision.

"He was convinced by Republicans that the 15 member plan was pro- Republican and this is the way he should go to help Republicans." Dale charged. Dale said that Elfvin’s final order is flawed on two important points

*** Elfvin ignored the race issue. The US court of appeals may be more sensitive to race issues, according to Dale, than was Judge Elfvin.

"The ‘15 plan’ attempts to herd all African Americans into the smallest amount of districts possible," Dale argues. "This is the opposite of what the Hispanics complained about in the old Democratic plan." The Republican expected counter argument however will be that there will two out of 15 African American members as opposed to the current two of 17, giving them greater proportionate voting clout. Dale counters that the 15 plan virtually eliminates any hope for a third minority member in the foreseeable future.

2. Judge Elfvin may have broken new legal grounds and one that the Appellate court may find unappealing when he extended weighted voting for an entire legislative cycle.

"Weighted voting in and of itself is not bad," Dale explained. "What is wrong is that it opposes the Erie County Charter. The voters never decided that this is how the Erie county legislature should operate. Other counties do have weighted voting, but this has always been a voluntary decision. They voted for it. It is part of their charter. Erie County is the only place, as far as I know, where it is strictly court imposed. The judicial branch is telling the legislative branch how their votes should be counted. One man alone is dictating to an entire county. The court of appeals will certainly decide whether or not the court can impose weighted voting as a semi permanent remedy."

Asked if the Republican 15 member plan will likely be changed, if voters pass the referendum to reduce the legislature, Dale responded: "The judge is not likely to change the lines. He could theoretically. It is clear that he was favoring a 17 member plan from the beginning and the Republicans told him to do something otherwise. Judge Elfvin was active in Republican politics and obviously he is doing this for the Republican party," Dale insists. "Still, Judge Elfvin made his decision, and we have the right to appeal it, and it shall be appealed!"

Dale believes a Appellate decision may be rendered as soon as two weeks and the Judge’s entire decision will be reviewed and possibly overturned.

"When it is reviewed," Dale said "everything, not just the order to submit it to a referendum, will undergo scrutiny, including the weighted voting system, and the dubious way it was initially imposed. Elfvin’s initial order that set up the weighted voting system was not a final order, which meant that, at that time, weighted voting could not be appealed! Now that there is a final order everything gets looked at."

What are the chances of victory?

Dale opined that if two or more of the three member panel of judges are Republicans, then expect Judge Elfvin;s decision to be upheld. However, if they are Democrats, chances are good that Elfvin’s order may be overturned.

If the Appellate decides that the weighted voting is to be thrown out, the legislature may undergo an almost instantaneous and radical change. "The Democrats would definitely have majority control again." Dale said.

If Democrats lose the appeal, Dale said, it behooves them to try to defeat the referendum.

"We will mount an aggressive campaign to educate the public on what the political ramifications of the Republican 15 member plan are, and the whole political tenor of their plan, which is a purely political move by a few politicians attempting to take control in an undemocratic way of an entire county and the election process. It’s Florida all over again."

Dale points out that every Democrat, even in a deeply fractured Democratic party, with the exception of two "turncoats" or effectual Republicans (DeBenedetti and West Seneca Supervisor Paul Clark) oppose the Republican plan.

"I would expect that the next Democratic Committee Chairman, whoever that is, will come forward and discuss plans about how he is going to fight the referendum. It is not about David Dale or Judy Fisher (whose district is also being eliminated in the 15 member plan) or African American, or, for that matter Polish American or Cheektowaga disenfranchisement but Democratic disenfranchisement. It is the Democratic Committee Chairman’s job to fight this. If the Chairman is going to be effective as a leader, and he doesn’t have a plan to defeat this referendum, or he cannot put a plan into effect once he is elected, then I think that will be a huge failure, and something that will mark, or, possibly, doom his chairmanship permanently. This is one of the few political issues that clearly are in the entire Democratic party’s best interest to get resolved in favor of Democrats. When you lose two Democratic seats, it’s not about who the individuals are, but that Democrats will lose two seats. It will effect the power of the remaining representatives, and the whole county government. By losing this referendum, Democrats would lose hugely in this Republican favored plan for an unknown period of time. It may take decades before Democrats have proportionate representation again."

The Republican plan, however, Dale admitted, could conceivably backfire on Republicans, if history repeats itself. Back in 1980, when, thanks to two Democrats, Stan Zagora and Minnie Gillette organizing with Republicans, Republicans seized control of the legislature. The Republicans sponsored a reapportionment plan that reduced the number of members from 20 to 17. Republicans however lost control of the legislature the following year, when both Zagora (who like Al De Benedetti had been given the chairmanship in return for his organizing with Republicans) and Minnie Gillette were targeted by Democrats and lost in their respective primaries. Coincidentally, the only two incumbents who lost last year also organized with opposing parties, and lost in their primaries: They were Greg Olma and William Pauley, leading some observers to speculate that of all members, whether they be 15 or 17 numerically, Al

DeBenedetti is going to have the hardest campaign to wage.

In any event, if the referendum passes, and/or if they lose the appeal, Dale may be out of elected office. Is there any future in politics for him or will the veteran attorney return exclusively to private practice?

"I will seriously consider running for county executive," Dale declared.