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The Number of NYS State Senate Districts - Shorter Fact Sheet

The Number of NYS State Senate Districts - Shorter Fact Sheet

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The Number of New York State Senate Districts
The number of Senate districts is determined by a rule, dating from 1894, inArticle III, §4, of the NY State Constitution. The rule applies to counties that containmore than 6% of the total state population. Whenever the population of such a countyrises to a larger proportion of the statewide total than in 1894 – counting by increments of 1/50
th
(2%) of the state total, after dropping the remainders – then a district is added to thetotal of 50 districts that were created in 1894. The counties that have grown enough tomatter are Bronx, Nassau, Queens, Richmond, Suffolk, and Westchester. (A decline in acounty’s share of the state population, as compared with 1894, has no effect on thenumber of districts.)The rule is somewhat ambiguous because the NYS Court of Appeals has ruledthat the population comparison must be based on the counties as they were in 1894. Nassau County was created out of Queens County in 1899, so Queens and Nassau aretreated as a unit. According to one interpretation of the rule, Westchester County must beconsidered as a unit with the part of the Bronx east of the Bronx River, since that areawas part of Westchester in 1894. (Bronx County was not created until 1914.) The Courthas also ruled that Richmond and Suffolk Counties must be treated as a unit, since thosetwo counties were combined as a single Senate district in 1894.There have been two different methods of combining the counties for thiscomparison. One method was used in the reapportionment law of 1972, upheld by theCourt of Appeals in
Schneider v. Rockefeller 
(1972), and used again without question in1982 and 1992. That formula produced 60 districts in 1972 (up from the previous 58),and 61 districts in 1982 and 1992. If the same formula had been applied in 2002, therewould again have been 61 districts. The Senate Majority decided, however, that their  political calculations would be best served by creating 62 districts in 2002.
1
 The SenateMajority’s outside counsel, Mr. Michael Carvin, then produced an opinion justifying thenew formula. It is still available (as of September 15, 2011) at the LATFOR website.
2
 It happens that, given the state and county population totals of the 2010 census, both formulas would produce 62 districts in 2012.
3
Any number other than 62 wouldmean a departure from all constitutional precedents (and also a repudiation of the legalopinion produced by Mr. Carvin in 2002). It would obviously be a repeat of the partisanmanipulation of 2002, with new political calculations for the new decade.This is a constitutional rule. There is no constitutional basis for choosing another number of districts because it seems convenient, for whatever reason. The ambiguity of the formula, arising from changes in county boundaries, and the past exploitation of thatambiguity to serve partisan purposes, provide no license to ignore the NYS Constitution.
1
An internal Senate Majority memorandum, dated July 20, 2001, and divulged during the documentdiscovery phase of 
 Rodriguez v. Pataki
(2004), states: “We have had numerous discussions regarding the possibility of the Senate increasing in size to 63. While the ultimate decision will be made with politicalnumbers for proposed districts at each size in hand, I believe that the decision basically comes down to theraw census numbers.” There is no discussion of what the NYS Constitution might require.
2
3
The appendix applies the two versions of the formula to the census counts from the 1970’s to the present.
 
Appendix: Determining the Number of New York State Senate Districts, 1972-2012
The formula for determining the number of Senate districts is based on Article III,§4, par. 3, of the New York State Constitution, originally adopted in 1894:
The ratio for apportioning senators shall always be obtained by dividing thenumber of inhabitants . . . by fifty, and the senate shall always be composed of fiftymembers, except that if any county having three or more senators at the time of anyapportionment, shall be entitled on such ratio to an additional senator or senators, suchadditional senator or senators shall be given to such county in addition to the fiftysenators, and the whole number of senators shall be increased to that extent.
Art. III, § 4, was adopted at a time when New York County (then including muchof what is now Bronx County) held nearly a quarter of the population of the state.Politicians representing upstate and rural areas feared that New York and Brooklynwould continue to grow until they entirely dominated state government. That outcomewas to be prevented by a constitutional provision that effectively gave an extra Senateseat to the less populous counties, each time one of the more populous counties qualifiedfor an additional seat on the basis of population growth. The provision was one of severalthat operated, over the following decades, to produce a gross malapportionment of Senatedistricts. By 1964, when the U.S. Supreme Court applied the equal representation principle to the New York State Legislature in
WMCA, Inc. v. Lomenzo
, the most populous Senate district had four times the population of the least populous.In the equal representation era, art. III, § 4, should no longer operate to produce amalapportionment. Paragraph 3 just determines the total number of seats, and the stateshould then be divided into that number of districts, all of approximately equal population, according to the equal representation principle. The interpretation of Paragraph 3 was last litigated in
Schneider v. Rockefeller 
(1972), a challenge to thereapportionment that took effect in 1972. The interpretation followed by the Legislaturein the 1972 reapportionment was upheld by the NYS Court of Appeals in
Schneider 
, andfollowed by the Legislature in 1982 and 1992.Some of the language in art. III, § 4, par. 3, is not perfectly clear. The applicationof the formula is further complicated by the fact that some county boundaries havechanged since 1894. As interpreted in a series of decisions by the Court of Appeals – 
Matter of Dowling 
, 219 N.Y. 44 (1916),
Matter of Fay
, 291 N.Y. 198 (1943),
Matter of Orans
, 15 NY2d 339 (1965), and
Schneider v. Rockefeller 
, 31 NY2d 420 (1972) – the paragraph may be parsed as follows:
“ratio”
A ratio of apportionment is 1/50 (2%) of the total state population, notincluding remainders. The rounding is always downward; thus a county with 6.01%of the total state population is deemed to have as many ‘full ratios of apportionment’as a county with 7.99% (three ‘full ratios,’ but still short of four).
“any county”
Territory comprising a single county,
as it existed in 1894
; the particular instances will be explained below.
 
Appendix 3: The July 20, 2001 Senate Majority Internal Memo on the Size of the Senate
“having three or more senators at the time of any apportionment”
Having a population, based on the new census data, equal to at least three ‘full ratios.’
“shall be entitled on such ratio to an additional senator or senators”
In additionto the number of Senate districts apportioned to the county in 1894.
“such additional senator or senators”
In addition to the county’s 1894apportionment.
“and the whole number of senators shall be increased to that extent”
Increasedabove the basic number of 50. The application of the formula can only add districts tothe basic 50. No loss of population share in any county can cause a subtraction fromthe original 50 seats.There are three instances in which the application of the formula requires thereconstruction of counties as they were in 1894 (or, in one case, a bi-county Senatedistrict of 1894):
New York/Bronx/Westchester
Bronx County was created in 1912. In 1894, that part of the Bronx west of theBronx River was part of New York County, and the part east of the river was part of Westchester County. There are two ways to construe the application of the formula tothese counties in the reapportionments that took effect in 1972, 1982, and 1992. In oneway, New York and Bronx Counties are taken to be a single county, and the number of ‘full ratios of apportionment’ in their combined population is compared with the 12Senate districts apportioned to New York County in 1894. The other way, the threecounties – New York, Bronx, and Westchester – are treated as a single county, and thenumber of ‘full ratios of apportionment’ in their combined population is compared withthe total of 13 Senate districts apportioned to New York and Westchester Counties in1894 (12 to New York, one to Westchester). Both methods produce the same result: noeffect on the size of the Senate.
Queens/Nassau
 Nassau County was created in 1899, from territory that was part of QueensCounty in 1894. Under art. III, § 4, par. 3, the number of ‘full ratios of apportionment’ inthe combined populations of Queens and Nassau Counties is compared with the oneSenate district apportioned to Queens County in 1894.
Richmond/Suffolk 
In 1894, Richmond and Suffolk Counties shared a single Senate district. (Withoutdefending this odd arrangement, it can be explained as a reflection of the priority given inthe 1894 Constitution to preserving the integrity of county boundaries. The creation of adistrict that divided a county without being wholly contained within the county wasstrictly forbidden. Richmond’s population was too small for a Senate district of its own,

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