Do we Want Real Democracy or Incumbent Protection Insurance?
The constitutional amendment passed in 2014 to, in Governor Cuomo’s words, “once and for all end self-interested and partisan gerrymandering,” actually codifies and strengthens it. For decades, the two parties have used redistricting to protect their incumbents, even at the expense of competing with the other party. The new amendment creates a bipartisan committee, theoretically independent from the legislature. However, the amendment contains a number of loopholes that would let either party kick redistricting back to the legislature, returning the state to exactly the same incumbent-protecting mess the amendment was supposed to eliminate.
New York needs a truly independent commission, free from control of the governor, the legislature, and even the two main political parties. California has an excellent model, where its 14-member commission must be split between Republicans, Democrats, and independents, and at least 3 members of each group must vote in favor of a redistricting plan for it to pass. Only the voters themselves can turn down the plan, in which case, the State Supreme Court would appoint a new commission to create a new plan.
- “This agreement will permanently reform the redistricting process in New York to once and for all end self-interested and partisan gerrymandering,” Governor Cuomo said. “With the legislature agreeing to pass this historic constitutional amendment twice by a specified date, and passing a tough statue that mirrors the amendment, we have taken a major step toward finally reforming the state’s broken redistricting process. New York is now a leader among the growing number of states that have reformed their redistricting process to stop such gerrymandering.” — Governor Cuomo
- “Cuomo’s Redistricting Constitutional Amendment is neither reform nor historic. It is totally flawed. Unfortunately, it was approved by the voters in November, 2014. — Bill Samuels
- “I urge you not to support this deal. A constitutional amendment is worthy of support on its own, of course, but not at the expense of improved lines now. That is only good for the people who are counting on Albany staying exactly the way it is for another decade, but most New Yorkers think that’s far too long. Voting for anything less than a 2012 independent commission would violate the pledge that so many lawmakers signed and campaigned on.” – Former Mayor Ed Koch on the 2012 vote in the State Legislature on the amendment proposal.
- “The gerrymandering practice is very, very harmful to the community at large and I think it tends to accentuate the differences, the very strong differences, between the political parties.” – U.S. Supreme Court Justice John Paul Stevens, Wall Street Journal, January 29, 2010.
- “Negotiated in secret by legislative leaders and the Governor, and passed in the dead of night without any opportunity for public comment or amendment, the proposed redistricting constitutional amendment passed by the Legislature in March, 2012 contains many troubling or inadequate provisions. Common Cause/NY opposes its passage.” — Susan Lerner, Executive Director of Common Cause-NY
- “Legislative semantics do not change the reality that the commission’s plan is little more than a recommendation to the Legislature, which can reject it for unstated reasons and draw its own lines,” Justice Patrick J. McGrath wrote. – Sam Roberts, The New York Times, “Ballot Item Would Reform Redistricting, at Least in Theory.”
- “The Legislature will be allowed to reject the Commission’s lines if they don’t like them, and substitute their own, making a mockery of the entire process and, in the end, allow politicians and the political parties to rig election results.”
- “…the authority over redistricting should be removed from the Legislature, whose members have an inescapable personal interest in the redrawing of the districts from which they will seek re-election.” –Committee on Election Law, New York City Bar, “A Proposed New York State Constitutional Amendment to Emancipate Redistricting from Partisan Gerrymanders Partisanship Channeled for Fair Line‐Drawing,” March, 2007.
- “When legislators are intimately involved in drawing their own district lines, there arises an irresistible temptation to conflate the public interest with personal or partisan gain. The authority responsible for redistricting in New York State – and just as important, the staff supporting that process – should be meaningfully independent from undue legislative influence: free from obligation, and possibly even free from ex parte contact.” — The Brennan Center, “New York Redistricting Memo,” March 1, 2010.
In New York before the recent amendment, both congressional and state legislative district boundaries were drawn by the state legislature, which could be vetoed by the governor. A six-member advisory commission assisted in the process. The commission recommended congressional and state legislative redistricting plans to the legislature, which could adopt, modify or ignore the commission’s. proposals.
The members of the commission were appointed by the majority leader of the New York State Senate, the majority leader of the New York State Assembly, the minority leader of the New York State Senate, and the minority leader of the New York State Assembly.
The results of this structure were plain to see by the New York City Bar:
New Yorkers have experienced repeated cycles of self-interested redistricting. The majority party in each house of the Legislature makes an agreement with that of the other house, whereby each majority designs a plan to shield itself from electoral challenge in its own house, and approves the other’s self-serving plan without question. Both houses abdicate their constitutional responsibility to craft districts for the entire Legislature, and for Congress, that are compact, contiguous, equal in population, respectful of municipal boundaries, and fair in their treatment of minority groups.
It was this situation the 2014 Amendment was meant to resolve. The new procedure is as follows:
Beginning in 2020, congressional and state legislative redistricting will be the responsibility of a 10-member commission comprising:
- 2 members appointed by the temporary president of the New York State Senate.
- 2 members appointed by the speaker of the New York State Assembly.
- 2 members appointed by the minority leader of the New York State Senate.
- 2 members appointed by the minority leader of the New York State Assembly.
- 2 members appointed by the 8 commissioners. These 2 appointees cannot have been enrolled in the top 2 major political parties in the state.
There are many issues with the new amendment that completely compromise it.
The noted constitutional scholar Professor Gerald Benjamin provided a report card on the Redistricting Amendment using 14 criteria for evaluation. The result —
- 4 F’s,
- 2 D’s,
- 3 C’s,
- 2 B’s,
- 3 A’s
For an Overall Grade of C-
To Read Professor Benjamin’s evaluation, click here.
The legislature still controls the outcome because it must approve the commission’s plans. If the legislature rejects two separate sets of redistricting plans, or if the governor vetoes a redistricting plan that the legislature approves, it can amend the commission’s proposals directly.
Even worse, if one party simply objects to where the commission is going and doesn’t show up, there is no quorum, and hence, no agreement. So either party as well as the legislature or the governor can undermine any work the commission does.
Cuomo’s historic 2012 Redistricting Constitutional Amendment will still require in 2020 that the number of state senators be determined by using the same 1894 state senate districts as a foundation. Thus, the populations of Queens and Nassau must be combined and Staten Island and Suffolk must also be combined because those counties didn’t exist at the time, and one or another formula or some combination must be used to determine a number that suits the governor and the head of the State Senate. This antiquated counting procedure combined with a completely ambiguous set of formulas is ripe for gerrymandering. For a more complete explanation, click here.
The New York Public Interest Research Group noticed how the Senate and Assembly had been very carefully gerrymandered for the current election:
…upstate Senate districts are systematically underpopulated at a mean deviation of -4.5% from the average size, and downstate districts are overpopulated at a mean deviation of +3.3%. This arrangement effectively creates an additional district upstate (which tends to have higher Republican enrollment) that according to the actual distribution of population should belong in New York City. Finding: In the Assembly, the reverse is true. The agreement between the governor and Assembly Democrats has resulted in New York City districts that are systematically underpopulated at -2.3% while upstate districts are overpopulated at +2.4%. This scheme effectively relocates a district that should belong in upstate New York into the more favorable political terrain of New York City.
Compare these percentages to Illinois has no population deviation at all, and California, Washington and Wisconsin have population differences of less than 1% on average.
There are four basic principles courts consider when judging the validity of districts:
- Contiguityrefers to the principle that all areas within a district should be “physically adjacent.”
- Compactnessrefers to the general principle that “the distance between all parts of a district” ought to be minimized.
- Acommunity of interest is a “group of people in a geographical area, such as a specific region or neighborhood, who have common political, social or economic interests.”
- Political boundariesare counties, cities and towns.
With these principles in mind, it is easy to see that districts in New York have been and still are massively gerrymandered. Here are just a few examples:
State Senate District 46: “Political boundaries?”
- New York State Senator George A. Amedore, Jr., Republican, Conservative, Independent
- The district consists of all of Montgomery and Greene Counties, and portions of Schenectady, Albany, and Ulster Counties.
- What an adjusted total population of 292,750, this district is 4.75% below the Senate district average.
Assembly District 101: “As compact form as practicable”?
- Spans parts of 7 Counties: Orange, Sullivan, Delaware, Ostego, Herkimer and Oneida.
- More than 125 miles long.
- Stretches across New York State down from the Mohawk Valley to the Hudson Valley.
- Covers 25 towns and one small city, Little Falls.
- It follows no major highway. Even a trip on the state Thruway, which will take you well outside district boundaries, is nearly a four-hour drive from one end to the other.
New York State Senate District 51: “As compact form as practicable”?
- Senator James L. Seward, Republican, Incumbent
- Covers all or part of 9 different counties
- More than 130 Miles Wide — nearly 1/2 the Width of the State of New York which is 285 Miles
- More than 145 Miles Tall — almost 1/2 the Length of the State of New York at 330 Miles
- Includes 3 different broadcast media markets
New York State Senate District 23: “No county shall be divided except to make two or more senate districts wholly in such county.”
- Senator Diane J. Savino, Independent Democrat, Incumbent.
- Divides Richmond and Kings Counties.
- Two areas in Brooklyn connected by shoreline so that district is only contiguous at low tide.
- Two areas connected by a bridge where the Kings County side isn’t even the District.
New York State Assembly District 138: “As compact a form as practicable”?
- Assembly Member Harry B. Bronson, Democrat, Incumbent
- Creates a District where Republicans living in suburban towns representing the majority of the landmass of the Assembly District are outnumbered 2:1 by Democrats in “the Rochester Hook”
- Carves the City of Rochester into three Democratic Assembly Districts representing the surrounding area
- Divides communities of interest by connecting narrow areas on the outskirts of the City of Rochester with large suburban towns
- Connected in several locations by narrow strips of land with no population
- “For decades, Democrats have controlled the Assembly, and the mapmaking for their own house. That is why the district for Democrat Susan John in the Rochester area looks a little like a teapot. The bulk of her district is in the suburbs, prime Republican territory, but to keep Ms. John in office, the mapmakers added what looks like a curl of steam that runs through the most Democratic areas of Rochester. Without it, Ms. John’s seat could easily turn Republican.” Editorial, “Gerrymandering, Pure and Corrupt,” New York Times, November 11, 2009
New York State Senate District 60: “Consists of contiguous territory”?
- District previously gerrymandered as Democratic District to protect Republicans in adjoining districts by packing Democrats into a divided district that has a Democratic super majority has been gerrymandered back to protect a Republican incumbent that recently won the seat before redistricting
- Two areas connected by shore line so that the district is only contiguous at low tide
- Dropped populations of minorities and others likely to vote Democrat in the cities of Buffalo, Niagara Falls and on Grand Island
New York State Assembly District 13: “As compact a form as practicable”?
- Assembly Member Charles D. Levine, Democrat, Incumbent
- Horseshoe-shaped district skims the shoreline of the Long Island Sound to connect Democrats in Glen Cove, Roslyn, Sea Cliff with Democrats in Jericho and Plainview.
- Almost completely wraps around Assembly District 15 a district packed with Republicans to create in order to create a Democratic district.
- Connected in several locations by narrow strips of land with no population.
Going forward, the Brennan Center has endorsed four basic principles that should be part of any meaningful redistricting proposal:
First, an independent process. When legislators are intimately involved in drawing their own district lines, there arises an irresistible temptation to conflate the public interest with personal or partisan gain. The authority responsible for redistricting in New York State – and just as important, the staff supporting that process – should be meaningfully independent from undue legislative influence: free from obligation, and possibly even free from ex parte contact. This does not simply mean bipartisanship, though bipartisanship may be desirable as well. Nor does it mean a process devoid of politics, or one that eliminates entirely politicians’ roles. The difference is that, in a body with independence, those with a particular incentive to lock out competent challengers are not given unfettered access to the keys.
Second, a diverse representative body. The need to reconcile the competing and complementary interests involved in the redistricting process means that to gain the confidence of the public, the redistricting body must be meaningfully diverse. Those responsible for drawing district lines should reflect ample geographic, racial, ethnic, and political diversity, so as to prevent charges of self-dealing similar to those that have found a foothold in the current system, but on a group level rather than an individual level.
Third, meaningful redistricting criteria. There are many available guiding principles. Some present affirmative requirements, such as the mandate to further the representation of discrete communities of interest. Others are negative injunctions, such as the obligation to avoid drawing lines in order to disadvantage a particular incumbent or challenger. One stands out as particularly important: given a commitment to the principle of majority rule, it is beneficial to pay some attention to the likely partisan balance of a redistricting map, so that a minority of the state’s population does not reliably and durably control the majority of the legislature. The need for clear governing criteria should not be confused with a demand that the criteria in question dictate a particular result. Rather, the criteria should retain enough flexibility to allow trusted decision makers — the diverse and independent redistricting body mentioned above — to apply overall state priorities to peculiar local circumstances, sensibly and in the broader public interest.
Fourth, meaningful transparency. At the moment, most citizens are excluded from the redistricting process, which concerns not merely public policy, but the aggregation of group interests that are the foundation of all policy discussions. Communities are splintered and electoral fortunes tailored, by and large, without meaningful opportunity for input. A commitment to basic transparency requires not only public hearings, but the opportunity to submit draft maps, and the opportunity to respond to drafts before they are enacted.
In 37 states, legislatures are primarily responsible for the drawing of congressional district lines. Seven states use backup commissions and other procedures in case the state legislatures are unable to decide on redistricting.
Independent commissions draw the lines for both state legislative and congressional districts in six states: Alaska, Arizona, California, Idaho, Montana and Washington. These commissions do not include legislators or other elected officials.
California and Arizona the most interesting structure, one that New York would do well to emulate:
In California, an independent commission draws both congressional and state legislative districts. The commission consists 14 members: 5 Democrats, 5 Republicans and 4 belonging to neither party.
A panel of state auditors selects the pool of nominees, which consists of 20 Democrats, 20 Republicans and 20 of neither party. The majority and minority leaders of both chambers of the state legislature can each remove 2 members from each of the groups. The first eight commission members are selected at random from the remaining nominees. These first eight must be 3 Democrats, 3 Republicans and 2 from neither party. The first 8 commissioners appoint the remaining 6, which must be split between 2 Democrats, 2 Republicans and 2 from neither party.
In order to approve a redistricting plan, 9 of the commission’s 14 members must vote for it. These 9 must include 3 Democrats, 3 Republicans and 3 from neither party. Maps drawn by the commission may be overturned by public referendum. In the event that a map is overturned by the public, the California Supreme Court must appoint a group to draw a new map.
The law is widely considered a success, with more competitive elections around the state.
According to the article, the law has been a success and they’ve had more competitive elections in some districts. They mention a Supreme Court Case that might nix it, but the case was decided in favor of the redistricting law, as you see in the text below the link.
Arizona Proposition 106, or the “Constitutional Amendment Relating to Creation of a Redistricting Commission,“ was approved in a referendum by the voters in 2000.
The Arizona Independent Redistricting Commission draws the congressional and state district lines. The commission is composed of five members:
- 4 are selected by the majority and minority leaders of each chamber of the state legislature from a list of 25 candidates nominated by the state commission on appellate court appointments.
- The 25 nominees are 10 Democrats, 10 Republicans and 5 unaffiliated citizens.
- The 4 commission members then choose the fifth and final member of the commission. The fifth member of the commission must belong to a different political party than the other commissioners.
Interestingly, the Arizona constitution requires that “competitive districts be favored where doing so would not significantly detract from the goals above.”
The Arizona proposition was challenged, and was ultimately decided by the Supreme Court. On June 29, 2015, the Court ruled 5-4 in favor of the Arizona Independent Redistricting Commission. The court decided that “redistricting is a legislative function, to be performed in accordance with the state’s prescriptions for lawmaking, which may include the referendum and the governor’s veto.”
“…If either house shall fail to approve the legislation implementing the second redistricting plan, or the governor shall veto such legislation and the legislature shall fail to override such veto, each house shall introduce such implementing legislation with any amendments each house of the legislature deems necessary…. If approved by both houses, such legislation shall be presented to the governor for action.”
“A Citizen’s Guide to Redistricting,” Justin Levitt, The Brennan Center for Justice, 2010 Edition.
“Ballot Item Would Reform Redistricting, at Least in Theory,” Sam Roberts, The New York Times, October 12, 2014.
“California’s redistricting success in jeopardy?” by Todd S. Purdum, Politico, March 1, 2015.
“Judge: Redistricting commission not ‘independent,’” Jimmy Vielkind, Politico, September 17, 2014.
“New York Redistricting Memo,” The Brennan Center, March 1, 2010.
“A Proposed New York State Constitutional Amendment to Emancipate Redistricting from Partisan Gerrymanders Partisanship Channeled for Fair Line‐Drawing,” Committee on Election Law, New York City Bar, March, 2007.
“Redistricting Procedures by State,” Ballotopedia.