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Breitbart* March 12, 2012 The proposed constitutional amendment to create an “independent redistricting commission” - S6698 and A9526, introduced on Sunday, March 11 - would not loosen the legislative majorities’ grip on future legislative redistricting, and would even take a giant step backward by bringing back prison-based gerrymandering. It would retain the eccentric constitutional formula for changing the size of the Senate, with all its constitutional ambiguity and potential for manipulation, and would leave in place many of the other objectionable features of the existing constitutional rules. The page and line numbers, in boldface below, refer specifically to S6698. In summary, the amendment has the following features: 1. The Legislature would still control its own redistricting. 2. The gerrymandered Senate and Assembly districts enacted in 1992 and 2002 would have been enacted even if this supposed “reform” had already been in place. 3. The amendment would bring back prison-based gerrymandering. 4. The absurd formula for determining the size of the Senate would remain. 5. Population deviations could still be manipulated to give one region more than its fair share of districts, while leaving another region under-represented. The Legislature would still control its own redistricting. The “independent commission” would have an equal number of appointees by the majorities and minorities of both houses, an improvement over the LATFOR system, but the ultimate authority would be left with the Legislature. As shown below, if this “reformed” system had been in effect in 1992 and 2002, the result would have been exactly the bi-partisan gerrymanders that were actually enacted.
I directed the staff work on redistricting for the Minority (Democratic) Leaders of the New York State Senate from 1980 through my retirement at the end of 2005. I have offered advice to the redistricting staff of the Democratic Senate Conference during the current redistricting process, and exchanged information with them, but I do not now work for or represent the Minority Leader. I consulted with the Committee on Election Law of the Bar Association of the City of New York during the preparation of their report, A Proposed New York State Constitutional Amendment to Emancipate Redistricting from Partisan Gerrymanders: Partisanship Channeled for Fair Line-Drawing (2007), and was the principal drafter of the text, but I do not, and never did, represent or speak for the Committee or the Association. (I am not a lawyer.) The opinions I express are solely my own.
I have asked members of the Senate Minority staff to find some information that I cite in this memorandum, regarding the roll-calls of 1992 and 2002. But nothing that I say here has been subject to their review or approval.
The Supposed Constitutional Reform of Legislative Redistricting – March 12, 2012 – p. 2
The amendment provides that if the Legislature twice rejects the proposals of the commission, “each house shall introduce such implementing legislation with any amendments each house of the legislature deems necessary,” and “[i]f approved by both houses, such legislation shall be presented to the governor for action.” [3:8-14, emphasis added.] “Any amendments.” That means the two majorities can draw whatever districts they like, and the you-do-yours-we’ll-do-ours deal will stay in effect. The only constraint on the Legislature, then as now, would be the threat of a Governor’s veto. If the Senate and Assembly majorities are of different parties, approval of a plan proposed by a majority of the commission would require only a majority of each house, the same as now. [3:18-23] There is no requirement for a super-majority to approve “such implementing legislation with any amendments each house of the legislature deems necessary.” If no plan is approved by a majority of the commission, and if partisan control of the Legislature is still divided, approval of one of the plans emerging from the commission would require the votes of 60% of the members of each house. [3:24-29] Again, there is no more stringent provision for approval of such a plan after the Legislature has thoroughly transformed it by amendment. In 2002, the redistricting bill (A11014) received the votes of 40 of the 61 senators. That was 65.6%. If the one absent Republican had been present and voting, there would have been 41 votes in favor – 67.2%. In the Assembly, bill received the votes of 119 of the 150 members – 79.3%. In 1992, the redistricting bill (S7280) received the votes of 41 of 61 senators – 67.2% - and 102 of 150 Assembly members – 68.0%. Under the “reform,” such votes would be more than sufficient to enact whatever lines the two legislative majorities draw. In the era of the divided Legislature, redistricting in New York has not been a matter of Democrats versus Republicans, but of Bolsheviks versus Mensheviks – the combined majorities defending their interests against the minority party in each house. The “reform” is designed to leave the majorities firmly in control. If the same party controls both houses in 2022, a two-thirds vote would be required in each house. Past experience shows that the majorities could still enact whatever they liked by accommodating a few members of the minority party. At best, the two-thirds rule is designed to protect the Senate Republicans in the event that they find themselves in the minority in 2022, while the 60% rule will leave them easily in control of redistricting if they retain the majority.
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The amendment would bring back prison-based gerrymandering – a poison pill. The amendment would reverse the one significant reform of New York legislative redistricting since the one-person-one-vote decisions of the 1960’s – the end of prisonbased gerrymandering. The reform enacted 2010 specifically requires LATFOR to create a database in which inmates of state and federal prisons have been subtracted from their places of incarceration, and reallocated insofar as possible to their prior home addresses. LATFOR is further required to use the adjusted database in recommending Senate and Assembly districts to the Legislature. The prisoner subtraction-and-reallocation law is in the Legislative Law, Section 83-m, Subsection 13, which would be completely superseded by the proposed amendment. The amendment abolishes LATFOR, but does not impose the prisoner subtraction-and-reallocation rule upon the new commission or the Legislature. It thus repeals the rule, and brings back prison-based gerrymandering. The omission of the prisoner reallocation rule is not only reactionary. It is also a poison pill that will prevent even this false reform from taking effect. The prisoner reallocation law received preclearance from the Department of Justice under Section 5 of the Voting Rights Act, which requires prior approval before any change in electoral procedures involving Bronx, Kings, or New York County can take effect. A return to prison-based gerrymandering would therefore require preclearance again, and it would surely be denied. The standard for Section 5 preclearance is that there be no retrogression in the ability of minority groups to elect representatives of their choice. A return to prison-based gerrymandering would skew the apportionment in favor of the rural upstate areas where most prisons are located, at the expense of the urban areas where minority group voters are concentrated. It would clearly be retrogressive. The amendment would be subject to the preclearance review only after being approved by the Legislature a second time in 2013, and then ratified by the voters. If preclearance were denied – which would result from an omission, not from a particular provision to which the Department of Justice could specifically object – the amendment would be a nullity. The eccentric formula for changing the size of the Senate would remain. The absurd formula that occasionally increases the size of the Senate would be retained under the “reform.” [4:29-36] This provision was originally part of the apportionment formula that was struck down by the US Supreme Court in the 1964 one-person-one-vote decision, WMCA v.
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Lomenzo. It is now a relic that only serves to determine the total number of senators. But because of changes in some county boundaries, its meaning is ambiguous, and it is subject to self-serving manipulation by the Senate Majority. The current controversy over whether the Constitution requires 62 or 63 Senate districts in 2012 shows why this provision should be changed. There can be no reason for retaining this formula, instead of providing for a fixed number of senators, except to retain the potential for manipulation. And the ambiguity is actually made worse. As Article III, Section 4, of the NYS Constitution now reads, a county’s number of “full ratios” is to be compared with the apportionment of senators it received in 1894. Under this amendment, there is no indication of what of what the point of reference would be - what being entitled “to an additional senator or senators” would mean. [4:33-34] In addition to what? A future Senate Majority would have free a hand to invent whatever constitutional interpretation best suits its partisan calculations. There is no rule limiting the total population deviation, or preventing the deviations from being manipulated to produce an unfair apportionment of Senate or Assembly districts among regions of the state. The language in the amendment that “[t]o the extent practicable, districts shall contain as nearly as may be an equal number of inhabitants,” [3:48-49] merely reproduces the language already found in Article III, Section 4. That language has proven quite inadequate to prevent the use of a total population deviation approaching 10% with all districts in one region underpopulated, and all those in another region overpopulated – so as to the skew the apportionment of districts in favor of one region over another. The additional language, requiring the commission to provide a specific explanation for each population deviation that “deviates from this requirement,” calls at most for the stating of a pretext. It is also ambiguous. If it the commission thinks that avoiding a deviation is not “practicable,” in light of other rules, would a justification have to be stated? And the requirement for a specific explanation only applies to the commission, not to the “amendments each house of the legislature deems necessary.” Cities would still have to be divided to comply with the block-on-border rule. The amendment retains the block-on-border rule, requiring that adjoining Senate districts differ in population by no more than the population of the least populous block on their common boundary. Towns would still not have to be divided to comply with the block-on-border rule, but that protection would still be withheld from cities. [4:4-9] Cities – even small upstate cities – would still have to be divided to comply with block-on-border, if a) the city lies on the boundary between two districts, b) the district
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boundary does not coincide with a county boundary, and c) the district containing the city is the less populous of the two. There is no rational reason for protecting towns, but not cities, from the effect of the block-on-border rule. The amendment retains many provisions of Article III, Sections 4 and 5, that have already been found to violate the Equal Protection Clause of the 14th Amendment, or that are otherwise obsolete: • • Provision for a separate state census (not used since the redistricting of 1916). [1:11-30] Exclusion of aliens from the redistricting database (already amended in 1969 by Article III, Section 5-a, which bases redistricting on the whole number of inhabitants). [1:15-16, 2:28-29, 5:1-2, 5:10-11, 5:17-18, 5:20-21, 5:33-34, 5:5455] Permitting legislative redistricting to be delayed until the sixth year of each decade (found unconstitutional in 1982 in Flateau v. Anderson, and inconsistent with language found later in the amendment.). [2:4-9] Providing that no county shall have four or more senators unless it contains a “full ratio” – 2% of the state’s population, always rounding down – for each senator (part of the apportionment formula ruled unconstitutional in 1964 in WMCA v. Lomenzo). [2:30-34] Apportioning Assembly districts strictly by county (part of the apportionment formula ruled unconstitutional in 1964 in WMCA v. Lomenzo). [4:52-5:55] Note: this obsolete provision on the Assembly apportionment takes up a full page of the eight-page bill – not to delete it, but to retain it. Separating apportionment of Assembly districts from redistricting, and giving authority over Assembly redistricting to county legislatures (struck down by the NYS Court of Appeals in 1965 in Matter of Orans, as inconsistent with WMCA v. Lomenzo, and inconsistent with other language in the amendment.). [5:28-48]
Considering the design to preserve legislative control over redistricting, the return of prison-based gerrymandering, all the other egregious defects in the redistricting rules, and the retention of so much obsolete constitutional language, a discussion of the structure of the “independent commission” would be beside the point. The proposed amendment is intended to defeat reform. At best it is a press release bill, intended never to take effect.
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