“Legal it may be, but reform it is not,” Bill Samuels after court of appeals approves 63rd district.

Bill Samuels: See three different mathematical methods that can be applied to the outdated weird 1894 Constitutional equation that can be used to create 62 or 63 Senate Districts under What is the Issue?

New Roosevelt Foundation files Amicus Curiae in Court of Appeals

New York State Court of Appeals decides to uphold the Cuomo-Skelos-Silver “Wink-Wink-Wink” Redistricting deal plan, which creates a 63rd State Senate seat in favor of the Republicans saying “Although this court finds disturbing the Legislature’s use of one method for Queens and Nassau Counties and a different method for Richmond and Suffolk Counties [the Senate Democrats] have not sustained their heavy burden of demonstrating beyond a reasonable doubt that the Legislature has acted unconstitutionally.” Judge Richard Braun, April 17, 2012, Click Here to Read the Decision.

 Authored by Bill Samuels and Benjamin Kallos

Why is Redistricting Senate Size a Constitutional Question?

The State Constitution sets the size of the State Assembly at 150 members and the Senate at 50 members.  However, it also includes a complex and often-litigated formula for expanding the size of the Senate as population increases and counties increase their proportion of representation in the Senate.

This totally outdated provision has not been changed since it was included in the State Constitution in 1894, long before the Voting Rights Act was first passed in 1965 or the principle of “one-person, one-vote” was established by the United States Supreme Court in 1964.

New York courts have ruled that because the provision is based on the ratio of the populations of different counties in determining the Senate size, any increases in the number of senators must be based on the counties as they existed when the provision was passed.  This means that Nassau must be considered as if it were still part of Queens County, as it was until 1898 when the Greater City of New York was created.  Since Bronx County, the last to be established in the state, was formed within Greater New York in 1914, it cannot be separately considered when the size of the Senate is determined.

The only way to alter the process for determining the size of the State Senate, or to create a fixed Senate size based on modern municipal boundaries, is to amend the Constitution.

Why Redistricting Senate Size Matters

Historically, altering the number of Senate districts is one of several tools used by Senate majorities to rig the redistricting process in their favor.

A larger number of districts is easier to gerrymander because it gives more flexibility in drawing lines.

A second and more limited point, because most experts agree that he or she cannot vote on substantive matters, is that this process has the effect of undermining the power of the Lieutenant Governor by diminishing the potential for tie votes in the Senate.

Because the actual formula for increasing the number of senators is extremely complex and poorly understood, different formulas have been used over the years with judicial approval.

What is the Issue?

The first Senate formed in 1777 had 24 members that were elected in staggered terms whose number could be increased with the growth of electors up to a cap of 100.  By 1795, the Senate had grown to 43, which when challenged was found to be unequal in operation, leading to an 1801 Constitutional amendment fixing the number at 32.  This number would continue until the 1894 Constitution increased the number of Senators to 50, along with the option for reapportionment by legislative determination using a formula that would not recognize the creation of new counties.  By 1907, the Senate was increased to 51.  Between 1917 and 1943, no reapportionment plans were passed.  In 1943 The Senate size would then increase to 56 in 1943, 58 in 1953, and 65 in 1964.

In 1972 a new method for satisfying the 1894 formula was introduced that would be blessed by the New York State Court of Appeals and reduce the size of the Senate to 60 members.  Through the continued application of the method used in 1972 the Senate Size increased to 61 is 1982 and continued at 61 in 1992.  However in 2002, a new method for following the 1894 formula was used that brought Senate to 62.

It is worth noting that although the Lieutenant Governor is not a member of the Senate, he is the President and presiding officer over the Senate, where the Constitution guarantees a casting vote to break ties such as may occur in a body with an equal number of Senators.

During the 2012 redistricting process the Task Force on Demographic Research and Reapportionment (LATFOR) proposed using a combination of the 1972 and 2002 methods which together could bring the Senate to 63 members.


Bill Samuels: “The Steps to Get to 63 State Senators — A metaphor for why the entire redistricting compromise must be rejected”

Step 1. Divide the current 2010 census population of 19,378,102 in 62 Counties by the original 50 State Districts that existed in 1894.  Yes, use a 116 year-old-number to resolve a 21st Century problem.

The result is 387,562.  We will then use that number to divide the population of counties in 2012. (This process is set forth in Article III, Section 4, Paragraph 3 and retained in the new proposed Constitutional amendment).


Suffolk population of 1,493,350 is divided by 387,562 to get a ratio of 3.85

Richmond population of 468,730 is divided by 387,562 to get a ratio of 1.21

Queens population of 2,230,772 is divided by 387,562 to get a ratio of 5.76

Nassau population of 1,339,532 is divided by 387,562 to get a ratio of 3.46

Step 2.  Now redraw the map as it existed in 1894.

Step 2A. Merge Nassau into Queens, because Nassau didn’t exist in 1894.

Step 2B. Merge the Bronx into New York and Westchester or Merge Bronx, New York and Westchester into one County, because the Bronx didn’t exist in 1894.

Step 2C. Merge Suffolk and Staten Island, because they existed as a single Senate District in 1894.

Step 3.  The Constitution and the proposed Amendment requires a round down of the ratios we got about for a “full ratio.”

In adding the ratios above the 1894 formula requires a “full ratio,” which requires “rounding down” or dropping the remainder or decimal no matter how large (for example both 5.1 and 5.9 are rounded down to 5).  (The “full ratio” is defined in Article III, Section 4, Paragraph 4).

If you think that is confusing, wait till you see the three different ways you can decide when to round down to get the “full ratio.”

Step 4. The Three Weird Alternative Math Choices that affect 7 counties (Bronx, Nassau, New York, Queens, Richmond, Suffolk, Westchester):

1972 Method: add two individual county ratios together then round down their sum to a whole number to get the final full ratio.

Court of Appeals blessed this method in 1972 in Schneider v. Rockefeller where it increased the Senate to 60 then 61 in 1982 and 1992.

2002 Method: first round each of the two county ratios down to a whole number then add those two whole numbers to get the full ratio.

2012 Proposal Before Gov. Cuomo: for the first time uses both methods for different parts of the State. In this case LATFOR uses the 1972 method for Suffolk and Richmond and the 2002 Method for Queens and Nassau.

1972 Method applied to Suffolk and Richmond:

3.85 ratio for Suffolk is added to the 1.21 ratio for Richmond to get the ratio of 5.06, which is rounded down to the full ratio 5.

(If the 2002 method were applied to Suffolk and Richmond the full ratio would be 4).

2002 Method applied to Queens + Nassau:

5.76 ratio for Queens is rounded down to the full ratio of 5 and the 3.46 ratio for Richmond is rounded down to the full ratio of 3, which are both added to total a full ratio of 8.

(If the 1972 method were applied to Queens and Nassau the full ratio would be 9).

Step 5: The full ratios in 2012 are compared to the full ratios in 1894.  If the number of full ratios has increased since 1894 the overall Senate size is increased and if it has remained the same or decreased the Senate size is not increased.


2012 Full Ratios

SD’s in 1894

Increase in Ratios

New York (with portion of Bronx)6120
Westchester (with portion of Bronx)312
2002 Method: Queens + Nassau817
1972 Method: Richmond + Suffolk514
Increase in Senate Size13

Step 6: Senate Size is Increased Using Formula and the State Population of 19,378,102 is Divided by the New Senate Size of 63 to the Population Per District to equal 307,589 people per Senate District.


The consistent application of the method from 2002 in 2012 yielded 62 Senate Districts, while the consistent application of the method from 1972, 1982 and 1992 in 2012 would not create 63 Senate Districts either.

Results under both methods result in an even number of Senators which risks a potential deadlock thereby empowering a Lieutenant Governor who is currently a Democrat.

The Senate Republicans  were able to add  one additional Senate District upstate (for an odd number of Senators) by mixing the two different methods used in 1972 and in 2002.

The State Court Of Appeals upheld Judge Braun’s decision permitting the Senate Republicans to create the 63 district plan.