Protecting Voting Rights by Making Gerrymandering Unconstitutional


"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.

Professor Gerald Benjamin gives Govenror Cuomo's Redistricting Amendment a C-

"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 



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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.

Noncompetitive Districts

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.

In fact, the chart above shows New York’s districts are so uncompetitive that incumbents have only lost just over 30 times over the past 1,060 elections. Either they’re doing a fantastic job (which no New Yorker believes), or they’ve stacked the deck to avoid competition.  The New York Times, points to gerrymandering as the source stating:
"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.

Old Partisan Gerrymandered Districts (2000 - 2010)

The New Maps Are No Better

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.

New York State Senate District 51 Case Study #1: "As compact form as practicable"?

New York State Senate District 51

Nickname: "Abraham Lincoln Riding a Vacuum Cleaner"

  • Half as tall and one-third the length of the entire state
  • Cover all of part of 7 different counties
  • Crosses 6 different Assembly Districts
  • Includes 3 different broadcast media markets

New York State Senate District 60

 Case Study #2: "Consists of contiguous territory"?

New York State Senate District 60

Nickname: "A District Divided"

  • Two areas in two counties that are more than a mile apart.
  • Cuts the City of Tonawanda in half
  • Cuts the City of Buffalo in half
  • Protects Republicans in adjoining districts by packing Democrats into a divided district that has a 5:1 Democratic to Republican ratio

Case Study #3: "No county shall be divided"?

New York State Senate District 49

Nickname: "The 'long arm' of legislative redistricting"

  • Divides three out of four counties (Cayuga, Onondaga, and Oneida)
  • Divides three out of four cities, each in a different county (Auburn, Rome, and Syracue)
  • Out arm is 30 miles long, 40 miles high and includes 12 towns
  • Completely wraps around 3 sides of an adjoining State Senate District

Case Study #4: "As compact a form as practicable"?

New York State Assembly District 13

Nickname: "The Snake of Long Island Sound"

  • Horseshoe-shaped district skims the shoreline of the Long Island Sound to connect Democrats in Glen Cove, Roslyn, Sea Cliff with Democrats in Jericho, Plainview, and Old Bethpage
  • Almost completely wraps around Assembly District 15 a district packed with Republicans to create in order to create a Democratic district
  • Connected in several locations by narrow strips of land with no population


New York State Assembly District 131

Nickname: "The Rochester Teapot"

  • Creates a District where Republicans living in four suburban towns representing the majority of the landmass of the Assembly District are out numbered 2:1 by Democrats in "the Rochester Hook"
  • Carves the City of Rochester into three Democratic Assembly Districts representing the surrounding area
  • Divides communities of interest by connecting narrow areas on the outskirts of the City of Rochester with large suburban towns
  • Connected in several locations by narrow strips of land with no population
  • "For decades, Democrats have controlled the Assembly, and the mapmaking for their own house. That is why the district for Democrat Susan John in the Rochester area looks a little like a teapot. The bulk of her district is in the suburbs, prime Republican territory, but to keep Ms. John in office, the mapmakers added what looks like a curl of steam that runs through the most Democratic areas of Rochester. Without it, Ms. John’s seat could easily turn Republican." Editorial, "Gerrymandering, Pure and Corrupt," New York Times, November 11, 2009
New York Congressional District 17 

New York Congressional District 17

Nickname: "The Steps from the Bronx to Ramapo"

  • Combines the majority-minority communities of the North Bronx, Mount Vernon, and downtown Yonkers with the Riverdale area in a district shape that then steps up the shore of the Hudson to cross into Rockland County.
  • Residents in the North Bronx and Southern Westchester urban areas like Mount Vernon and Yonkers face very different issues and have very different needs than residents in the far northern suburbs of Rockland County.
  • All along its path, the district divides neighborhoods and communities: Downtown Yonkers is split in half and individual blocks are torn out Hudson River villages like Hastings-on-Hudson and Dobbs Ferry.
  • The electorate has been cherry-picked with no regard for communities of interest or keeping neighborhoods, towns, and cities whole.
New York Congressional District 17 

New York Congressional District 22

Nickname: "Southern Tier Frying Pan"

  • Snatches three Hudson Valley cities – Middletown, Newburgh, and Poughkeepsie – into a district that stretches over 100 miles across the Catskills into the Southern Tier. The district extends west in a narrow panhandle through Binghamton before turning north and ending in Ithaca.
  • This is a partisan gerrymander to designed to protect the incumbent by collecting as many Democratic votes as possible.
  • Compared to surrounding rural areas, the cities of Middletown, Newburgh, Poughkeepsie, Binghamton, and Ithaca all trend more heavily Democratic.
  • Cities are isolated from their surrounding suburbs and regions, preventing the kind of regional civic engagement that is necessary for good governance.

Gubernatorial Veto

"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 CuomoTimes 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. 

Judicial Intervention

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.

Times Union
Jimmy Vielkind
Tuesday, February 14, 2012
 A federal judge called for a legal special master tooversee the state’s redistricting process, responding to a legal challenge to the process currently controlled by a legislative task force called LATFOR. (DN/NYT) 
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Anna Pycior
Sunday, February 12, 2012
“That’s correct,” he says? How about that’s an affront to the democratic process, that’s another reason for New Yorkers and Americans to distrust the “politicians behind the curtains?”
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City & State
Lauria Nahmias
Monday, February 6, 2012
How politicians danced around their promise to make redistricting an independent process
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The Wall Street Journal
Jacob Gershman
Friday, January 27, 2012
 A legislative proposal to redraw New York's political map—a once-in-a-decade event—drew a stern rebuke Thursday from Gov. Andrew Cuomo, who threatened to veto the plan that critics said was tainted by partisan agendas. 
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Buffalo News
Wednesday, October 23, 2013
For those who thought California was good only for sunshine and earthquakes, consider this: Political reform in the nation’s largest state is turning it from an economic basket case into a model of democracy and progress. That’s fine for...
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Times Union
Saturday, May 19, 2012
 I've seen this movie before ... there's like a whole little deja vu going on for me," Gov. Andrew Cuomo quipped last month when asked by reporters whether he would run for president in 2016 — invoking the memory of...
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Utica Observer-Dispatch
Editorial Board
Saturday, March 17, 2012
 The backroom dealing that helped define Albany as dysfunctional for so many years reared up again this past week as Gov. Andrew Cuomo huddled with top lawmakers to strike a bargain on redistricting that won’t see the light of day for at least...
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Daily News
Editorial Board
Tuesday, March 13, 2012
 The closer you look at Gov. Cuomo’s proposed gerrymandering deal with the Legislature, the worse it gets.The high-stakes horse trade calls for Cuomo to sign off on blatantly partisan Assembly and Senate districts this year in exchange...
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New York Post
Monday, March 12, 2012
 Gerrymandering — redrawing district lines to assure that incumbents keep their base — is certainly part of it.But unless you’re among the lucky few to get the nod from party kingpins, you stand little chance of even making it on...
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A selection of relevant solutions from other states.

Courtesy of All About Redistricting: Professor Justin Levitt's guide to drawing the electoral lines

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.



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