"WINK-WINK-WINK Silver-Cuomo-Skelos" -Bill Samuels on March 15, 2012 after a redistricting deal was passed placing an incumbent protection plan amendment deal on the November, 2014 statewide ballot, which subsequently passed.
"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
"Gerrymandering for any purpose is prohibited."-1967 Constitutional Convention Recommended Amendment
The New York State Constitution gives the State Legislature the power to redraw congressional and state legislative district lines following the national census every 10 years. In addition, the Constitution specifies that both the Assembly and State Senate must be redistricted by the "same law" forcing the two houses of the New York State legislature to negotiate on the lines.
Because this is a power explicitly granted to the legislature by the New York State Constitution, the legislature cannot, by law, diminish their own power or give the authority to anyone else. Therefore, even if the legislature approved an independent redistricting commission, that commission's recommendation, would still be subject to legislative approval, before enactment of its plan as law.
Any permanent reform therefore, must include a constitutional amendment to give an entity other than the legislature the constitutional authority to draw district lines. Under New York's current Constitution, the earliest such a constitutional change could have an effect on redistricting is 2022.
The concept of voters being able to freely choose who will represent them is the cornerstone of our democracy. But in New York, more often than not, majority party legislators choose which voters will be in their districts, and they do so in such a way as to minimize electoral competition.
When legislators are immune from the will of the voters, they no longer have to represent their constituents’ interests, opening the door to corruption and undue influence by special interests.
Furthermore, this is one more system which allows the leadership of each house to enforce obedience among their rank and file by rewarding or punishing legislators as they see fit.
So long as legislators are drawing their own district lines with an eye toward their own re-election, we will never have the fair elections that New Yorkers deserve.
"This process has worked so well for so many politicians that the New York Public Interest Research Group reports that in 2008 more than half of the state’s 212 legislators were re-elected with more than 80 percent of their districts’ votes. In 57 districts, the incumbents ran unopposed. New faces appear rarely, usually when a lawmaker retires, dies or, increasingly, gets convicted of abusing the public trust." Editorial, "Gerrymandering, Pure and Corrupt," New York Times, November 11, 2009.
Competition is minimized by stacking districts with super majorities of one party or another. This is true for both the Senate and Assembly.
Below are some examples of partisan gerrymandering of both the Democratically controlled Assembly Districts and Republican controlled Senate Districts that ignore constitutional redistricting principals in an effort to protect incumbents.
|Case Study #1: "As compact form as practicable"?|
New York State Senate District 51
Nickname: "Abraham Lincoln Riding a Vacuum Cleaner"
|Case Study #2: "Consists of contiguous territory"?|
New York State Senate District 60
Nickname: "A District Divided"
Case Study #3: "No county shall be divided"?
New York State Senate District 49
Nickname: "The 'long arm' of legislative redistricting"
Case Study #4: "As compact a form as practicable"?
New York State Assembly District 13
Nickname: "The Snake of Long Island Sound"
New York State Assembly District 131
Nickname: "The Rochester Teapot"
New York Congressional District 17
Nickname: "The Steps from the Bronx to Ramapo"
New York Congressional District 22
Nickname: "Southern Tier Frying Pan"
"The veto really would inject a certain amount of chaos and uncertainty that really would be in no one's best interest ... The point is, control is all lost ... What happens if the judge just says, 'This is a legislative responsibility, it's always been the Legislature's responsibility -- let's just enact the Legislature's plan'? That could happen." -Governor Andrew Cuomo, Times Union, October 26, 2011.
Governor Mario Cuomo, sought to thwart a partisan gerrymandered redistricting plan passed the legislature requiring his signature or veto. While Governor Mario Cuomo also initially fought the plans, he would eventually fold in exchange for election law reforms including campaign finance contribution limitations as well as improvements to voter registration and ballot access. However, in signing the redistricting plan he included an unusual signing memorandum:
"It seems clear to me - and I believe it will be clear as well to other objective reviewers - that the Republican plan had as its primary concern the protection of incumbents against any real challenge … In doing so, I believe the Justice Department and the courts will both conclude laws have been violated … Given the legislature's performance in redistricting thus far, there is more than a serious possibility that a veto would simply allow the legislature to achieve the ultimate in incumbent protection - elections on existing lines."
Along the same lines Governor Andrew Cuomo has taken a similar initial position as his father Governor Mario Cuomo but recently noted that a veto of a badly gerrymandered plan is no guarantee of fair lines.
History has shown that New York State legislative redistricting plans, no matter how political gerrymandered, shockingly have not be overturned by the Court.
Since the deal in 1982 where Assembly Speaker Stanley Fink and Senate Majority Leader Warren Anderson each agreed that they could each draw their own districts, no challenge to either house of the state legislature’s redistricting plan has held up in court despite ever increasing majorities of Democrats in the Assembly and Republicans in the Senate.
In 2002, Democrats challenged the badly gerrymandered Republican Senate in Rodriguez v. Pataki, a lawsuit financially supported by Bill Samuels.
The Democrats alleged that Senate District 34 was drawn primarily on the basis of race to create a district with a white supermajority.
The court concluded that incumbent protection was a legitimate goal and that the “challenges in Plaintiff’s complaint are without merit…we defer to the legislature’s plan and adopt its apportionment of these districts.” Excerpts from the case are included below for your reference.
“While the Supreme Court has held that absolute population equality is required for congressional districts, Karcher v. Daggett, 462 U.S. 725, 732-33, 103 S.Ct. 2653, 77 L.Ed.2d 133 (1983), districting plans for state legislative seats require only ‘substantial’ population equality. See Gaffney v. Cummings, 412 U.S. 735, 748, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973).“
“The Court has recognized that minor deviations from absolute population equality may be necessary to permit states to pursue other legitimate and rational state policies. See Reynolds, 377 U.S. at 577-81, 84 S.Ct. 1362; see also Mahan v. Howell, 410 U.S. 315, 321-22, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973).”
“Particular state policies that justify minor deviations from absolute population equality generally include ‘making districts compact, respecting municipal boundaries, preserving the cores of prior districts, and avoiding contests between incumbent Representatives.’ Karcher, 462 U.S. at 740, 103 S.Ct. 2653.”
After stating that the incumbent protection was a valid purpose for gerrymandering, the court went on to find that the creation of white majority in a majority minority district was in fact for incumbent protection:
“We agree … that it is plain that the Senate majority had a powerful political incentive to avoid eliminating the district of a senior Republican incumbent or pairing him with a Democratic incumbent in a majority-Hispanic district that the Republican could not expect to win. 180 See Vera, 517 U.S. at 965, 116 S.Ct. 1941 …”
In concluding, the court reminds us of the incumbent protection standard:
"[W]e have recognized incumbency protection, at least in the limited form of `avoiding contests between incumbent[s],' as a legitimate state goal.“
The results of the court's decision in Rodriguez v. Pataki can be seen in Nassau County on Long Island where African American communities are currently split between 5 white male Republican Senators from Nassau: Dean Skelos in District 9, Charles Fuschillo in District 8, Jack Martins in District 7, Kemp Hannon in District 6 and Carl Marcellino in District 5.
The legal battle over redistricting in 2012 already started in 2011 with Favors v. Cuomo, Cv 11-5632, filed in the Eastern District of New York (EDNY) before Federal Judge Irizarry and Magistrate Judge Mann, seeking the appointment of a Special Master to draw the lines in order to avoid the partisan gerrymandering process.
In nearly all cases, state legislatures have maintained their power to draw their own as well as federal lines. Four different methods have emerged: advisory commissions, back up commissions, redistricting commissions, and independent non-partisan redistricting commissions followed by a legislative vote.
Advisory Commission: IA, ME, NY, RI, VT
Independent Non-Partisan Redistricting with Legislative Vote: AK, AR, CA, ID, MT, WA
Back Up Commissions: CO, CT, IL, MD, MS, OK, OR, TX
Legislature Alone: AL, DE, FL, GA, IN, KS, KY, LA, MA, MI, MN, NC, ND, NE, NH, NM, NV, SC, SD, TN, UT, WI, WV, WY