"WINK-WINK-WINK Silver-Cuomo-Skelos" -Bill Samuels on March 15, 2012 after Redistricting Deal
“[However] complicated of sophisticated an apportionment scheme might be, it cannot, consistent with that Equal Protection Clause, result in a significant undervaluation of the weight of the voters of certain of a State’s citizens merely because of where they happen to reside.” -WMCA v. Lomenzo, 377 U.S. 633
Federal courts have ruled that while the United State Constitution requires a population deviation for Congress Districts of zero, state legislative population deviation can go as high as 10% without a prima facie violation of the Equal Protection Clause of the 14th Amendment.
In 1964 the Court struck down specific provisions New York State Constitution that created districts with population deviations as high as 11 times greater than other districts as unconstitutional without providing specific guidance on acceptable population deviation. However "minor" deviations in population among state legislative districts have been found to be valid; the 2002 plan's deviation of 9.78% in the New York State Senate was affirmed in Rodriguez v. Pataki.
The 2012 State Senate plan, with an overall 8.8% population deviation and extreme regional imbalance, is currently being challenged in the case Favors v. Cuomo before the Eastern District Federal Court
Without a new decision by the federal courts, the only way that the state legislative reapportionment plan can be limited to a deviation of less than 10% is through a state constitutional provision on point.
The principle of one-person, one vote, in which all people are entitled to equal representation in government, is a bedrock principle of our democracy. Yet this principle is routinely undermined in the gerrymandering process by maximizing populations in certain districts and minimizing populations in others for partisan purposes. While Congressional districts in New York have 0% deviation, New York's heavily gerrymandered Senate and Assembly districts deviate by as much as 9.78%, with these deviations being used to serve the needs of the legislative majorities, Democrats in the Assembly, Republicans in the Senate.
Legislative leaders use the population deviation range available to them under the law to shift seats into more favorable areas, thus tightening their grip on power. In the Senate, by consistently under populating districts in upstate New York while overpopulating districts downstate, the leadership has effectively shifted 2 districts upstate for purely political reasons.
This over usage of population deviation is one more tool in the gerrymandering toolbox that legislative leaders use to game the system to favor incumbents and those in power, at the expense of fair competitive elections.
1964 marked the first landmark decision by the Supreme Court ... 'one man, one vote'
The Supreme Court of the United States has set forth two separate standards for deviation from equality in population in redistricting Congress and state legislatures. For Congress, district populations must be equal “as nearly as is practicable” under the “equal representation” standard set forth in Article I Section 2. Deviations in district populations for state legislatures must remain within 10% under the “one person one vote” standard set forth under the Equal Protection Clause of the Fourteenth Amendment.
Beginning in 1964, the U.S. Supreme Court made a series of landmark decisions concerning redistricting, most notably Reynolds v. Syms. 377 U.S. 533. These fundamentally distinguished the standard for state legislatures from that of the Congress because, the court said:
“... [T]he Founding Fathers clearly had no intention of establishing a pattern or model for the apportionment of seats in state legislatures when the system of representation in the Federal Congress was adopted. … The system of representation in the two Houses of the Federal Congress is one ingrained in our Constitution, as part of the law of the land. It is one conceived out of compromise and concession indispensable to the establishment of our federal republic.”
The application of the Equal Protection Clause to the New York legislature in WMCA v. Lomenzo, 377 U.S. 633, required “that seats in both houses of a bicameral state legislature must be apportioned substantially on population basis.” In examining the results of the state constitutional formulas that governed apportionment of the state legislature the court found drastic district deviations where "the most populous Assembly district had 11.9 times as many citizens as the least populous one, and a similar ratio in the Senate was about 2.4-to-1. The court said further that “the weight of the votes of those living in populous areas is of necessity substantially diluted in effect.” Id at 648. It concluded that “however complicated of sophisticated an apportionment scheme might be, it cannot, consistent with that Equal Protection Clause, result in a significant undervaluation of the weight of the voters of certain of a State’s citizens merely because of where they happen to reside.”
Following Lomenzo, deviation in state legislative districts fell to 1.83% in the 1970 redistricting, only to increase to 5.3% in 1980, and the highs of 9.48% and 9.78% in the Assembly and Senate, respectively, in the last redistricting in 2002, which was upheld by the courts in Rodriguez v. Pataki.