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A Redistricting Power Grab


new york state legislature senate chamber electoral

Inside the State Senate chamber (photo: Kevin P. Coughlin/Governor's Office)


The New York State Senate and Assembly, both now in Democratic hands, last month gave first passage to several changes to an earlier constitutional amendment, adopted in 2014, creating a so-called Independent Redistricting Commission to redraw district lines every ten years for those two houses and the state’s Congressional districts. If passed by the Legislature again next year, and then approved by the voters, these amendments to that earlier amendment will go into effect in time to be used for the drawing of district lines in 2022. That would mean that the version approved by the voters in 2014 would never be used. Every one of the 40 Democrats in the state Senate voted for these changes. In the Assembly 91 of the 101 Democrats were in favor — while nine members, all from outside New York City, voted against. 

Truth be told, I was not a big fan when we New Yorkers voted to place the so-called Independent Redistricting Commission in the state constitution in 2014. I say “so called’ because there was nothing independent about the commission. Eight of its ten members, two each, were appointed by the majority and minority leadership of the Assembly and Senate, and the commission’s recommendations went back to the two houses for adoption. If they failed to pass, the Legislature retained the final authority to do the job itself. 

In my view, self-interested politicians should not decide on any of the conditions or rules under which they are elected or reelected. Truly fair redistricting, I thought then and think now, requires the final decision on district lines to be made by persons who meet two basic criteria: they are not seeking election in those districts and are not beholden to anyone who is. 

For decades, divided partisan control of the state Legislature produced New York’s infamous bi-partisan gerrymander. Republicans controlled drawing the lines for the Senate, Democrats for the Assembly, and then they voted for each other’s plans.  The so-called Independent Redistricting Commission amendment was a response to reformers’ pressure to do something about this. It was the appearance of action masking the absence of real change, accepted by some as “a good first step.” 

The 2020 proposed constitutional amendments if adopted will bring a welcome end to two practices long used by Republicans to retain Senate control: Increasing the number of seats in the body and counting downstaters imprisoned in GOP-dominated upstate rural areas - and not allowed to vote - as residents there, beefing up their population, and therefore their legislative representation. If the amendments pass the size of the Senate will be fixed at 63 members and the provision of a previously passed statute will be constitutionalized, to assure re-enumerat[ion] of incarcerated persons..[at] their place of last residence for the purposes of drawing district lines.”

Less savory, other changes first passed this July would undo two provisions of the original 2014 amendment designed to protect the interests of the minority parties in both houses (at that time the Republicans in the Assembly and the Democrats in the Senate). These are the alternative voting rules specified for the commission to recommend a redistricting plan, and the two houses to approve its recommendations, under alternative partisan circumstances in the Legislature.

To send a plan to the Legislature a redistricting commission now requires seven votes, including that of at least one of the two appointees of each of the four legislative leaders. (This explicitly specifies the mathematical consequence of requiring a supermajority of 7 in a group of 10 members to act, when each of four leaders appoints two commission members.) This provision protected the minority parties in each house, not always previously looked after by their co-partisans when deals were reached between the two majorities. It was also an insurance policy for the then-precarious, now-vanquished, Republican majority in the Senate. 

In the 2020 proposed amendment, just given first passage, the seven-person super-majority has been kept, but the requirement that at least one of these be chosen by each appointing authority has been removed.

The size of the majority in both houses required to pass a commission-recommended plan under the provision in place differs, based upon whether control of the legislature is divided or in one party’s hands. If divided control (the case when the original amendment was passed) a simple majority is needed in each house. If one party controlled both houses (the case now) two-thirds in each house is required. 

Then as now Assembly Democrats held more than two-thirds of the seats in that body. The Senate, however, was closely divided in 2014. This supermajority requirement potentially empowered the Senate Democrats in the redistricting process to a greater degree than before. It also preserved leverage for Republicans if they lost control of the Senate, as then appeared inevitable and has, of course, since occurred. 

Finally, what if deadlock occurred in the commission? (Not an unlikely eventuality, if experience is any guide.) The commission was then to send its most supported option or options to the Legislature, where an affirmative vote of 60% in each house would be needed to pass one of these plans, or an alternative.  

The changes passed this year make the required majority 60%, both if the two houses of the Legislature are in the hands of a single party or the commission is deadlocked. They also make it explicit that, absent a commission recommendation, the Legislature may adopt a plan of its own devising.

Democrats now hold 40 of 63 Senate seats (63.5%), enough to control the outcome of redistricting under the new revisions in all partisan circumstances, but not enough if there is deadlock on the commission under the unrevised rules. Hence, assuming they can retain this size majority this November, or grow it, and the proposed constitutional amendments gain the required second passage and voter approval, redistricting next year and the year after will be more firmly in the hands of the Democratic majorities in both houses. 

The complexity is admittedly a bit mind-boggling, but it comes down to this: The Democratic majority members in the state Legislature – many of whom are self-declared champions of political reform – want to alter a constitutional provision passed to achieve independent legislative districting before it has ever been used, giving themselves greater control of the process. Ironically, the untested provision itself almost certainly achieved only the illusion of reform. Also ironic, given New York’s politics and demographics, there is no chance that districts can be created that will place Democratic control of both houses at risk in the years ahead. With their current ample majorities, Assembly and Senate Democrats could advance real independence in drawing district lines for themselves and for Congress with little or no political risk. But instead they have chosen to preserve the illusion of reform, while further empowering themselves to act in their own self-interest. Maybe Plunkett of Tammany Hall was right after all: “Reformers are only morning glories,” at least on some mornings in July.

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Gerald Benjamin is Emeritus Founding Director of The Benjamin Center at SUNY New Paltz.

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