In the State Legislature (photo: NYS Senate Media Services)
Governor Andrew Cuomo and legislative leaders did not intend to hand map-drawing power to the courts when, in 2012, they hashed out a state constitutional amendment that recast the decennial redistricting process. Nor did they envision, after months of contentious public debate and closed-door negotiations, that the first pass at the new system would result in a hastily-organized, bifurcated election season with two major primaries taking place separately in a single summer.
Their amendment established a bipartisan commission – appointed by the Legislature and relying on its final approval – intended to create more public involvement and less gerrymandering when district lines for Congress, State Senate, and State Assembly are redrawn. But the process, which takes place every ten years after each U.S. Census, descended into chaos this year when the commission failed to reach an agreement on new maps. That left the relatively-new Democratic supermajorities in both legislative houses to draw their own lines, only to have them thrown out by the courts for unfairly favoring party incumbents and usurping the commission's role.
In April, the state's highest court appointed a special master – an elections expert from Carnegie Mellon University in Pennsylvania – to redraw the congressional and State Senate maps and postponed those party primary elections to August. A separate lawsuit later invalidated the Assembly map but with less time to postpone elections, leaving the Assembly primaries in June under the Democrats' original lines. The process has provoked criticism from all sides, with Republicans chastising Democrats for gerrymandering and Democrats claiming the Court of Appeals overstepped its mandate while rebuking the special master for a lack of familiarity with the districts he drew. The result was a slew of contentious primaries and general elections expected to be far more competitive than under the Democrats' original plans.
Now some good-government groups and Democratic lawmakers, including Governor Kathy Hochul, say the system should change again. Republicans, who got more of what they wanted when the commission deadlocked and Democrats flew too close to the sun, are less eager to alter the playing field.
"We need a better process," Hochul said in an interview on WAMC radio shortly after the August primaries.
"My God, it collapsed," she said.
The governor hasn't shared specifics on what she wants to see changed. Asked for details, a spokesperson referred Gotham Gazette to the WAMC clip.
"That was a dirty deal by Andrew Cuomo and the Senate Republicans back in 2012," said State Senate Deputy Majority Leader Michael Gianaris, in a July podcast interview with Gotham Gazette. "We should absolutely revisit it. We have now some time to do that. The next redistricting is, of course, a decade away. So we have the opportunity now to do it right and put something on the ballot that New Yorkers deserve."
Gianaris, who leads Senate Democrats’ campaign arm, sponsored an amendment in 2021 that would tweak the process on technical grounds but wouldn't address some of the structural dilemmas he is concerned with (voters rejected it last fall).
"It shouldn't be something that is designed for deadlock," he said. "When you set up a commission that has five Democrats and five Republicans on it, you're going to get a five-to-five tie on every important decision they have to make."
District lines are redrawn every decade after the Census to account for changes in the population. Districts have to adhere to criteria outlined in the U.S. Constitution, the federal Voting Rights Act, and the New York state constitution; they should be the same size, not favor incumbents or abridge the voting rights of protected groups, maintain "communities of interest," and be contiguous and compact.
As Gianaris said, there is still plenty of time to amend the state constitution before the next redistricting cycle in 2032. Amendments require passage by two consecutive legislative classes in both houses and then voters via a ballot referendum. The process could take up to four years to unfold. Such an effort could be derailed if Republicans were to make enough gains through this year's and subsequent elections.
Republican State Senate Minority Leader Robert Ortt condemned the Democratic maps but said the same laws and procedures should be followed in the next redistricting cycle.
"From the beginning, Albany Democrats injected partisan politics into the redistricting process, violating the will of the public and the State Constitution," Ortt said in a statement provided by a spokesperson. "Despite multiple votes from the New Yorkers affirming their demand for an independent redistricting process, the Senate Democrats decided to put their political survival ahead of the will of the people."
Voters approved the new system in a ballot referendum in 2014. It was the culmination of the 2012 deal among Cuomo, then-Assembly Speaker Sheldon Silver, a Democrat, and then-Senate Majority Leader Dean Skelos, a Republican, to establish a new commission to hold public hearings and propose maps to the Legislature, which kept the power to reject and redraw them. The deal – designed to appease calls for a more independent process – came on the heels of another much-criticized deal, among the leaders, that saw Senate districts redrawn to favor Republicans and Assembly districts drawn to favor Democrats.
The ten-member commission was appointed last year, two each by Republican and Democratic leaders in the Senate and Assembly, with the remaining two appointed by the commissioners, inevitably split along party lines.
"I would be the first to say that the commission failed spectacularly in its first run but I think we were set up to fail," said David Imamura, a Democratic appointee who chaired the commission, in an interview with Gotham Gazette. "A commission that was split evenly, five Democrats, five Republicans, was always going to stalemate in the end, especially when potential control of Congress and the State Senate were at play.
"I mean, it was impossible to do anything without needing to debate. We literally couldn't buy pens or get printer ink without all ten commissioners agreeing," he added. "So given that, how are we supposed to come to an agreement on some of the most divisive issues a democracy can face."
Imamura suggested New York model its process on California, which has a commission that includes Democrats, Republicans, and independents, whose members are chosen randomly from a pool approved by an independent body rather than by political appointment. He acknowledged any changes would require again altering the state constitution.
"I think that's the only way that we could have a system that functions," Imamura said.
The commission failed twice to agree on a single set of maps, allowing the Democrat-controlled Legislature to draw the lines ahead of the June primaries. Republicans challenged the Congressional and State Senate maps in rural Steuben County, where a Republican judge invalidated them. The Court of Appeals then ruled lawmakers did not have the authority to draft their own lines on procedural grounds, because the redistricting commission had never voted on maps a second time before the Legislature stepped in. The court also found lawmakers had gerrymandered congressional districts in violation of the state constitution. The judge gave the Legislature the opportunity to redraw both maps while appointing the special master to draw a separate map, to be used if lawmakers failed to agree.
In April, the State Court of Appeals, whose seven members were all appointed by Democratic governors, upheld the lower court's findings and removed the Legislature's ability for a do-over, leaving the special master's maps in place — a set of decisions criticized by many Democrats, including Gianaris, who said the Court of Appeals had issued "a partisan attack" against Democrats. The new lines stirred a fair deal of controversy, creating competitive open seats and pitting longtime Democratic incumbents against one another.
The Assembly lines, which were later challenged and invalidated on similar grounds, remained in place for the June primaries. Those boundaries will have to be redrawn ahead of the 2024 elections, the court ruled, with both sides now debating whether to return to the redistricting commission or a special master.
"Moving forward, politicians should follow the clear will of the public for fair independent redistricting, or be voted out of office," said Ortt.
Asked about changes to the state constitution, Ortt's spokesperson wrote, "In 2014, the Independent Redistricting process was picked by New Yorkers to keep the politics out of redistricting."
State Republican Party Chair Nick Langworthy, who recently won the party's nomination for Congress in Western New York, said the redistricting process should continue under the 2014 amendment.
"The redistricting commission was a sham from the outset and was set up to fail," Langworthy said in a statement. "Kathy Hochul said it herself that she was going to use her power to try and gerrymander districts, but thanks to our lawsuit and the clear decision by the courts, Democrats were stopped in their tracks."
"The law is clear we now have fair districts but it's in spite of Democrats who did everything they could to rig the election and subvert the will of the people," Langworthy added.
Jessica Proud, a GOP spokesperson, reiterated the party's stance. "The constitution is clear that the district lines must be fair. We are going to be focused on electing a Republican governor and breaking Democrats' supermajority in the legislature so that accountability can be restored," she told Gotham Gazette in an email.
The Senate and Assembly Democratic majorities did not respond to requests for comment about potential efforts to amend the redistricting process. Spokespeople for the New York State Democratic Party and Republican Assembly minority leader William Barclay declined to comment.
The office of New York Attorney General Letitia James, who defended the rejected maps in state court, referred inquiries to the Legislature and Governor Hochul.
While positions have not hardened around the specifics of changes, good-government groups have outlined some principles that would help insulate the process from legislative control (without turning it over to the courts).
Blair Horner, executive director of the New York Public Interest Research Group (NYPIRG), said the commission should include a balance of Republicans, Democrats, and party-unaffiliated members who meet minimum qualifications and are chosen by a lottery, like in California. It should also have an odd number of members to avoid gridlock, he said.
"What makes it different is it's very hard to game," Horner told Gotham Gazette of the California model, "which is what happened here, no surprises."
He noted that the office that handles the appointments in California does not have an equivalent in New York.
Good-government groups were divided on the 2014 referendum, with NYPIRG and Common Cause New York opposed and Citizens Union and the League of Women Voters in support.
"It was designed to gridlock so that the Legislature could make the decisions," said Horner.
"There were some backstops," he added. "You needed two-thirds supermajorities in both houses in order to jam things through. And I don't think when Cuomo was negotiating this deal with the leaders that anyone thought that that was possible, that both houses would be controlled by supermajorities." (Democrats reached that threshold in 2021 based on the 2020 elections.)
Cuomo and the good-government groups backing the amendment argued it was a step forward, if not a full loaf, because it removed some of the initial map-drawing procedures from legislative leaders, allowed for more public input, and created new mechanisms for accountability.
The groups were also split on a proposed constitutional amendment on the ballot in 2021 that would have made a number of technical changes to redistricting in New York, including adjusting the legislative voting thresholds for approving maps, fixing the number of State Senate seats at 63, and changing where incarcerated individuals are counted, among other things. While the amendment was voted down by voters, some groups, like NYPIRG, want to see it revived and passed twice again to be put on the ballot in the future.
In an Albany Times Union op-ed in May, Laura Ladd Bierman and Betsy Gotbaum, the executive directors of the League of Women Voters of New York State and Citizens Union, respectively, laid out some suggested reforms to make the commission less partisan and more independent.
They called for the commission to include party-unaffiliated (independent) members, with minimum standards in appointments, and for it to possibly be expanded to reflect "the full diversity of the state." They also called for the end of the Legislature's veto power over commission maps, and for commission decisions to be made by a simple majority vote (currently maps require approval from seven out of ten commissioners, including at least one from each appointing entity). They suggested the commission's timetable be advanced to leave room for potential court challenges ahead of the June primaries.
"While the Court’s action was a necessary step to validate and enforce the reforms adopted in the 2014 Constitutional amendment, it highlights the critical opportunity for the Legislature and New York voters to act now, well in advance of the next redistricting cycle, to build upon the reforms adopted in 2014," Bierman and Gotbaum wrote.
State Senator Zellnor Myrie, a Democrat who chairs the Senate elections committee, said he is "open to conversations" on how to improve the process for the next cycle. He raised concern specifically about Republicans' ability to select the Steuben County venue for the court challenge, which was favorable to their cause.
"One aspect of the process that I remain concerned about is the ability of certain individuals to forum shop and bring such important litigation — litigation that determines who has a voice in this state for the next decade — anywhere they choose or feel they’ll have the best advantage," Myrie wrote in a statement to Gotham Gazette.
"We should look at whether that’s a practice worth continuing as it specifically relates to redistricting, given the enormous impact these maps have on our democracy,” he said.
Assemblymember Kenneth Zebrowski, a Hudson Valley Democrat who sponsored the 2021 amendment with Gianaris, did not respond to requests for comment.
Democratic Assemblymember Robert Carroll of Brooklyn said lawmakers needed to start the process of reforming the system, noting the length of time it takes to amend the state constitution.
"We should come up with a new system, we should come up with it now," Carroll, a frequent supporter of democracy-related reforms, told Gotham Gazette.
"In four years time, we won't be that far from the next Census in 2030," he added, "so time is of the essence…because if there is a failure we would have to try again."
Horner offered the longer-term perspective: "Yes we will be trying to do what we can," he said. "This is a sisyphean task that we've been at for 40 years, going on 50. So, yeah, you know, we're gonna make another run at it."