    18‐1810
    Mahar v. Warren Cty. Bd. of Supervisors



                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.


                  At a stated term of the United States Court of Appeals for the Second
    Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
    the City of New York, on the 15th day of May, two thousand nineteen.

    PRESENT:
                      DENNIS JACOBS,
                      PIERRE N. LEVAL,
                           Circuit Judges,
                JESSE M. FURMAN,*
                      District Judge.
    _____________________________________

    William Mahar,
                                Plaintiff‐Appellant,
                      v.                                                     18‐1810

    Warren County Board of Supervisors, c/o Ronald
    Conover, Chairman, Warren County,

                      Defendants‐Appellees.
    _____________________________________


    *Judge Jesse M. Furman, of the United States District Court for the Southern District of New
    York, sitting by designation.
FOR PLAINTIFF‐APPELLANT:                        William Mahar, pro se, Warrensburg,
                                                NY.

FOR DEFENDANTS‐APPELLEES:                       Amy M. Lavine, First Assistant County
                                                Attorney, for Mary Elizabeth Kissane,
                                                Warren County Attorney, Lake George,
                                                NY.



       Appeal from a judgment of the United States District Court for the Northern
District of New York (Suddaby, C.J.).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.

        William Mahar appeals from the grant of summary judgment to defendants on
his claims under 42 U.S.C. § 1983 alleging that the Warren County, New York Board of
Supervisors (“Board”) violated the Equal Protection Clause by requiring that, if a town is
only entitled to a single representative on the Warren County Board of Supervisors (like
Mahar’s), the town supervisor must serve as that representative. He alleges that this
violates equal protection because residents of towns that are entitled to more than one
representative on the Board are entitled to vote for both a town supervisor and additional
board representatives. The district court ruled that the case is barred by res judicata
and that the complaint failed to establish an equal protection claim. We assume the
parties’ familiarity with the underlying facts, the procedural history of the case, and the
issues on appeal.

       We review a grant of summary judgment de novo, “resolv[ing] all ambiguities
and draw[ing] all inferences against the moving party.” Garcia v. Hartford Police Dep’t,
706 F.3d 120, 126–27 (2d Cir. 2013) (per curiam). “Summary judgment is proper only
when, construing the evidence in the light most favorable to the non‐movant, ‘there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.’” Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R.
Civ. P. 56(a)).




                                            2
        We affirm the district court’s judgment on the merits.1 “The Equal Protection
Clause of the Fourteenth Amendment is ‘essentially a direction that all persons similarly
situated should be treated alike.’” Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d Cir.
2000) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). “To
decide whether a law violates the Equal Protection Clause,” a court examines “the
character of the classification in question; the individual interests affected by the
classification; and the governmental interests asserted in support of the classification.”
Dunn v. Blumstein, 405 U.S. 330, 335 (1972). First, a court “must determine what
standard of review is appropriate.” Id. Mahar argues that the district court erred in
applying the rational basis test and instead should have applied strict scrutiny because
the claim involves the fundamental right of voting.

       We conclude that rational basis review was appropriate. Not all claims
involving voting are subject to strict scrutiny. See Burdick v. Takushi, 504 U.S. 428, 433
(1992). Generally, only claims that implicate the denial of the right to vote or involve
other suspect classifications or rights are subject to strict scrutiny; other voting claims are
subject to only rational basis review. See McDonald v. Bd. of Elec. Com’rs of Chicago, 394
U.S. 802, 807–09 (1969) (applying rational basis review to challenge to absentee ballot law
because it did not “absolutely prohibit[]” the plaintiff “from exercising the franchise”).

        The local laws provide that each town or city ward is represented on the Board by
at least one member. In the case of a town entitled to only one board member, the
elected town supervisor is automatically the board member. A town entitled to
multiple board members is represented by the town supervisor and a certain number of
“at‐large” representatives elected by that town’s residents to account for its higher
population. In sum, all residents of Warren County are represented on the Board by
elected officials. Mahar asserts that this apportionment system denies him equal
protection because he, as a resident of a small town, cannot vote directly for a County
Board Member but can vote only for a town supervisor, while residents of larger towns
can vote directly for a County Board Member, in addition to voting for a town
supervisor.

       The questions are whether this calls for strict scrutiny and whether it violates
equal protection. We answer no to both questions. The reason “[s]tatutes granting the
franchise to residents on a selective basis” are subject to strict scrutiny is that they
“always pose the danger of denying some citizens any effective voice in the

       1
          The Board argues that Mahar lacks standing. We disagree. Mahar contends that the
local law “decreases [his] voting choices relative to voters in other districts,” which suffices to
establish an injury for Article III purposes. See, e.g., Rockefeller v. Powers, 74 F.3d 1367, 1376
(2d Cir. 1995).

                                                 3
governmental affairs which substantially affect their lives.” Kramer v. Union Free Sch.
Dist. No. 15, 395 U.S. 621, 626–27 (1969) (emphasis added). Those statutes challenge the
“assumption that institutions of state government are structured so as to represent fairly
all the people.” Id. at 628. The local laws at issue here do not deny Mahar an equal
voice in his county government. They do not dilute his representation on the Board
relative to residents of larger towns. See id. at 627 n.7 (“[T]he effectiveness of any
citizen’s voice in governmental affairs can be determined only in relationship to the
power of other citizens’ votes”). On the contrary, the sole issue is that Mahar cannot
separately vote for his Board representative. See McDonald, 394 U.S. at 807–08
(concluding that strict scrutiny was not warranted because the “right to vote [wa]s not at
stake . . . but [rather] a claimed right to receive absentee ballots.”). Although the local
laws do create a distinction between the residents of different towns, the distinction does
not affect Mahar’s representation in county government. Nor does Mahar assert in this
action that the apportionment scheme leaves him underrepresented on the Board, or that
residents of more‐populated towns are overrepresented. Cf. Reynolds v. Sims, 377 U.S.
533, 568 (1964) (concluding that an apportionment scheme that dilutes the weight of
some voters compared to others living in different parts of a state violates the Equal
Protection Clause). Accordingly, we conclude that rational basis, and not strict
scrutiny, is the appropriate test.

        Under rational basis review, courts “will not overturn such [government action]
unless the varying treatment of different groups or persons is so unrelated to the
achievement of any combination of legitimate purposes that we can only conclude that
the [government’s] actions were irrational.” Kimel v. Fl. Bd. of Regents, 528 U.S. 62, 84
(2000) (internal quotation marks omitted; alterations in original). Here, the local laws
are closely related to three government objectives: (1) the apportionment of votes to
ensure that each citizen’s vote is weighed equally, (2) the preservation of county
boundaries, and (3) the benefits of having an integrated town‐county system of
government. See Brown v. Thompson, 462 U.S. 835, 847 (1983) (concluding that an
apportionment plan was “justified on the basis of Wyoming’s longstanding and
legitimate policy of preserving county boundaries”); Reynolds, 377 U.S. at 565–66 (“[T]he
achieving of fair and effective representation for all citizens is . . . the basic aim of
legislative apportionment[.]”); Abate v. Mundt, 403 U.S. 182, 186‐87 (1971) (affirming the
apportionment plan of Rockland County’s “dual personnel” legislature in part based on
“the advantages of having the same individuals occupy the governing positions of both
the county and its towns,” “the need for intergovernmental coordination,” and “the
extensive functional interrelationships between Rockland County and its towns”).
Here, the local laws preserve each town’s political borders; provide for equal
representation on the Board by allocating extra representatives to larger towns who are
elected “at large” by those town’s residents; and facilitate coordination between town

                                            4
and county governments by having town supervisors also serve as county legislators. It
cannot be said that Warren County’s scheme is “so unrelated” to those legitimate
government purposes that it is irrational. Kimel, 528 U.S. at 84. Because rational basis
review was appropriate and Mahar’s challenge to the local laws fails under that
standard, the district court properly granted summary judgment to the defendants.

      We have reviewed the remainder of Mahar’s arguments and find them to be
without merit. For the foregoing reasons, the judgment of the district court is
AFFIRMED.

                                        FOR THE COURT:
                                        Catherine O’Hagan Wolfe, Clerk of Court




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