by Richard Rifkin, Legal Director, Government Law Center
New York is about to engage in a new and untried procedure in creating legislative and congressional districts following the 2020 census. It could make a big difference in the 2022 elections as well as in elections that follow for the next ten years and beyond.
Ever since the early days of this country, state legislatures, which have the authority to draw both state legislative and congressional districts, have used this authority to gain political advantage for the majority party and its candidates. This is known as “gerrymandering” because in 1812 Massachusetts Governor Elbridge Gerry signed into law a bill that created districts that gave a significant advantage to his political party. A local newspaper noted that one of the districts looked like a salamander, giving us the term that remains common today.1 The practice of gerrymandering remains similarly common.
New York’s Independent Redistricting
In 2014, New York took a significant step in trying to at least limit this practice. In that year, the voters approved an amendment to the state constitution creating an independent redistricting commission. This
amendment left the power to finally approve district maps with the legislature, but it gave the new commission the authority to draft the initial maps. This procedure will be implemented for the first time in the upcoming 2021-2022 legislative and congressional redistricting following the 2020 census.
The constitutional amendment that created the new commission defines in detail its structure and sets forth its authority.2 It consists of ten members. The four party leaders in the legislature each appoint two members. The eight members so appointed must then choose two additional members, neither of whom shall have been enrolled in the preceding five years in either of the two major political parties. Each member must be a registered voter, but he or she may not for the last three years have been a state officer or employee, member of Congress, registered lobbyist or political party chair.
The spouse of a statewide elected official, member of Congress or member of the legislature within this three-year time period is also precluded from being named as a commissioner.
The 2014 amendment creating the commission includes within the constitution many details usually left to the legislature,
which ordinarily adopts an implementing statute or statutes.3 For example, this amendment places in the constitution the commission’s quorum requirements as well as its voting requirements, which vary depending upon whether the political parties of the Assembly Speaker and Temporary President of the Senate (who is also the majority leader) differ or are the same. It also is specific as to how two co- executive directors are to be appointed, again with variances depending on the parties of the legislative leaders. It even describes what happens if there is an inability to agree on the executive directors. Finally, it describes the procedure to be followed if there are not a sufficient number of votes to adopt any specific mapping plan.
The amendment similarly spells out the details of the procedures to be followed with regard to developing and approving the maps. This was formerly the exclusive province of the legislature. With the recent amendment, the process is now divided between the commission and the legislature.
Procedures for Drawing Maps4
The initial maps are to be prepared by the commission. The commission is required to make public by September 15 its “draft redistricting plans, relevant data, and related information”. After this information is publicized, the commission is required to hold public hearings in each of the five counties in New York City as well as in Nassau and Suffolk Counties. It also must hold hearings in Albany, Buffalo, Syracuse, Rochester and White Plains. This is going to be a difficult timetable since the 2020 census data from the federal government has been delayed and may not be available
until the end of July. The commission is required to report to the legislature when it submits its maps “the findings of all such hearings”.
The Commission’s maps must meet several requirements. The districts should not abridge “racial or language minority voting rights”. They should consist of “contiguous territory” and be as compact “as practicable.” In addition, they may not be drawn to favor or disfavor incumbents, candidates or parties. Finally, the one person, one vote requirement and the rules for senate districts with respect to the inability to split towns and counties remain in effect.
The Commission is obligated to draft its plans for the congressional, senate and assembly districts and submit those plans, along with the implementing legislation, to the legislature by January 15, 2022.
Following this submission, there is to be a vote in both houses on this legislation, which may not be amended. If approved by both houses, the bills are submitted to the Governor for his consideration. Should the proposed legislation fail, either because of the vote in either house or a veto by the Governor, the matter is sent back to the commission. Within 15 days, but no later than February 28, the commission is required to submit a second plan and implementing legislation. Again, the legislature must vote on the bills without amendment and, if adopted by both houses, sent to the Governor for his approval or disapproval. If this fails, the legislature is then free to amend the bill and the matter proceeds through the legislative process.
Thus, despite all the new procedures, the legislature continues to have final authority.
One important factor in the votes taken by the legislature on the bills submitted by the commission is the number of votes required in each house to adopt the bill. Under the constitutional amendment, it depends upon whether the two houses are controlled by the same party or different parties. Since both houses are controlled by the same party in the 2021-2022 legislature, a two-thirds vote in each house is required to approve any plan submitted by the commission.
Beyond the new commission and the process set forth in the constitution, the landscape for litigation will be significantly different in the upcoming redistricting. Every recent redistricting proposal has led to extensive litigation, and there is no reason to believe that the upcoming process will be any different in this respect. However, litigants may need to look to different courts this year.
The extensive detail set forth in the state constitution is likely to serve as the basis for challenges to whatever is done. Any violation of any of the detailed procedures raises the prospects for litigation, with the plaintiffs claiming that there has been a failure to comply with the constitution.
However, such an action could be brought only in the state courts, as it would involve a failure to comply with the state constitution.
Much of the litigation in previous years has taken place in the federal courts. However, in 2019, the United State Supreme Court decided Rucho v. Common Cause,5 where it held that any claim that the approved
districts are in violation of the federal constitution because of partisanship raises a political question rather than a legal question. This means that any partisanship claim cannot give rise to a federal action.
While some claims, such as racial discrimination, can still be brought in the federal courts, any claim based on partisanship, of which there have been many throughout the country, will not survive.
The federal courts no longer have the authority to hear such cases, thereby making the gerrymandering of districts likely to continue throughout the country. However, the restrictions now found in New York’s constitution may well limit this practice, as it allows for challenges on this basis to brought in the state’s courts.
We are entering a new era in New York with respect to redistricting. How this will play out is, at this point, quite uncertain.
1 See podcast of Jennifer Davis, February 10, 2017, Library of Congress.
2 New York State Constitution, Article III, Section 5-b.
3 The legislature earlier this year gave second passage to a proposed constitutional amendment that would modify certain details regarding the commission and some of its procedures and operations (S. 515; A. 1916). This amendment will be presented to the voters at this year’s general election in November. Because it may be rejected by the voters and some of the changes would appear to be too late to be applied in 2022, this explainer is based on constitutional provisions as of April, 2021.
4 New York State Constitution, Article III, Section 4(b).
5 139 S Ct. 2484 (2019).