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Committee on Election Law Report on Redistricting

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Committee on Election Law Report on Redistricting Contact: Maria Cilenti - Director of Legislative Affairs - [email protected] - (212) 382-6655 COMMITTEE ON ELECTION LAW REPORT ON REDISTRICTING REFORM -AND- S.3331 (BONACIC) / A.5271 (GALEF) This report is respectfully submitted by the Election Law Committee (the “Committee”) of the New York City Bar Association (the “Association”) in order to address redistricting reform generally and S.3331/A.5271 specifically. Appended to this report is the Committee’s March 2007 report A Proposed New York State Constitutional Amendment to Emancipate Redistricting from Partisan Gerrymanders (the “Report”). On March 14, 2011, the Senate passed S. 3331, a constitutional amendment relating to reform of the redistricting process. During the debate on S.3331, it was argued that the Association recommends that the redistricting process be reformed by way of constitutional amendment, not by legislation.1 While the Committee is pleased that members of the Legislature are aware of the Report, we wish to take this opportunity to highlight significant and material differences between the recommendations in the 2007 Report and the provisions contained within S.3331/A.5271. We discuss some of those differences here in hopes that the Legislature will adopt the recommendations of the Report during its continuing discussions of redistricting reform. Procedurally, it is correct that the Report recommended proceeding with redistricting reform by constitutional amendment. However, the Report set forth two principal reasons for this recommendation: (1) the amendment proposed by the Association is quite ambitious, such that a constitutional amendment may be needed to avoid quick repeal at a later date, and (2) as of the Report’s issuance in 2007, there was sufficient time to enact a constitutional amendment before the 2012 redistricting cycle. Neither reason for proceeding by constitutional amendment applies to S.3331/A.5271, which is significantly less ambitious and is untimely for 2012 redistricting. Given the Legislature’s inaction on redistricting reform over the past four years, the Association at this time would support meaningful reform by immediate legislative enactment, ideally with a companion constitutional amendment that would make such reform more difficult to repeal in the future. 1 Specifically, Senator Bonacic stated that “[t]he New York City Bar Association is on record that if you’re going to do redistricting, get it out of the hands of the Legislature, do a constitutional amendment.” See New York State Senate Stenographic Record, March 14, 2011 (http://open.nysenate.gov/legislation/transcript/regular-session-03-14-2011). This comment by Senator Bonacic seems to be in reference to the Report. THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK 42 West 44th Street, New York, NY 10036-6689 www.nycbar.org Substantively, the Report differs from S.3331/A.5271 in several significant ways, which we discuss below. Redistricting Commission The Association developed extensive recommendations as to the establishment and conduct of a nine-member redistricting commission. Transparency and public participation were explicitly prioritized and advanced. The Association called for broad publication of data, reports, and redistricting proposals developed by the commission. All commission votes were to be taken in public. Public hearings were to be held, while public submissions of redistricting proposals were to be encouraged. (Report, pp. 15-21, Appendix A-2.) S.3331/A.5271 takes a markedly less ambitious approach. Apart from the appointment of a five- member commission, it appears not to anticipate a break with New York’s current, secretive redistricting process. Transparency and public involvement are not contemplated. Public hearings, publication of relevant data, and public submission of redistricting plans are not addressed. The legislature is directed to establish by statute the qualifications, powers, and duties of commissioners. The Association does not oppose the establishment of a five-member redistricting commission, but it recommends that the legislation creating the commission expressly embrace the goals of transparency and public participation by including the provisions described in the Association’s proposed amendment. Redistricting Standards The Association developed extensive and specific redistricting criteria to be applied by its proposed redistricting commission. In order of importance, those are: population equality; contiguity and non-division of census blocks; proper count of incarcerated individuals; fair representation of minority groups; integrity of counties, county subdivisions, and villages; compactness; preservation of communities of interest; and incumbency. Several of these standards are also addressed in S.3331/A.5271. However, the Association believes that its proposed standards are more ambitious and therefore recommends conformity to its proposal in several areas, as discussed below. Contiguity. The Association’s proposed contiguity standard elaborates upon New York’s current constitutional requirement and explicitly prohibits district boundaries from dividing census blocks, unless the populated parts of such districts lie within a single census block. S.3331/A.5271 maintains the Constitution’s current contiguity language. The Association recommends adoption of its relatively modest changes to the law relating to contiguity. (Report, pp. 26-27.) Fair Representation of Minority Groups. The Association’s proposal prohibits districts being drawn that deny members of racial and linguistic minority groups an equal opportunity to participate in the political process and elect candidates of choice. Under S.3331/A.5271, by contrast, districts would only be prohibited if they were “drawn for the purpose of diluting the voting strength of any language or racial minority group” (emphasis added). - 2 - The Association believes that S.3331/A.5271’s intent standard is insufficient as a matter of principle and invalid under federal law because the standard would presumptively invalidate challenges to plans that have the unintended effect of diluting the votes of minority groups. The Association recommends adoption of the language proposed in the Report. (Report, pp. 27-29.) Compactness. The Association proposed that Senate, Assembly and Congressional districts “be as compact in form as practicable,” retaining the Constitution’s existing compactness standard and deferring more specific measures to the redistricting commission. In deferring to the commission, the Association expressly rejected an overly simplified definition of compactness, such as one that is scale-sensitive and looks at the aggregate perimeter measure. (Report, p. 34, Appendix C-6 - C-13.) S.3331/A.5271 contains such a scale-sensitive definition, barring districts whose aggregate boundary lengths exceed the shortest possible aggregate boundary length of all districts by more than 5 percent. The Association recommends that the legislature omit this definition entirely or replace it with a definition of compactness that takes into account the complexities associated with urban line-drawing. Incumbency Protection/Partisan Gain. The Association suggested clear standards regarding consideration of incumbents’ residences: “to the extent practicable,” two or more incumbents could not be packed into the same district. Incumbents’ residences had to be positioned in that portion of a proposed district with the largest number of their existing constituents. And incumbency protection would be subordinate to all other redistricting standards. (Report, p. 35.) S.3331/A.5271 also addresses the manipulation of district boundaries for incumbency protection and partisan gain. Districts may not be drawn to favor incumbents, political parties, or other individuals (e.g. candidates who would challenge incumbents), but such line drawing would only be proscribed if it was done with the purpose of favoring an incumbent, a political party, or another person or group. Conditioning incumbency protection and partisan interest on an intent standard appears to allow for more manipulation than is allowed under the Association’s proposed test. S.3331/A.5271 also stops short of subordinating these concerns to other redistricting criteria. The Association recommends adoption of the standard proposed in the Report. * * * A copy of the Report is enclosed for reference, and we would be pleased to make members of the Committee on Election Law available for further discussion. September 2011 - 3 - A Proposed New York State Constitutional Amendment to Emancipate Redistricting from Partisan Gerrymanders: Partisanship Channeled for Fair Line‐Drawing Committee on Election Law MARCH 2007 THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK 42 WEST 44TH STREET, NEW YORK, NY 10036 A Proposed New York State Constitutional Amendment to Emancipate Redistricting from Partisan Gerrymanders: Partisanship Channeled for Fair Line-Drawing A Report of the Special Committee on Election Law of the New York City Bar I. Introduction II. Summary: a Proposed Amendment to Article III of the NYS Constitution III. A Fair Process: Non-Partisan or Bi-Partisan? IV. Competitiveness: Goal or Rule? V. Issues Still To Be Resolved A. What Is the Correct Standard of Population Equality? B. Where Should Prison Populations Be Counted? C. May a Commission Draw Congressional Districts that Are Not Subject to Legislative Approval? VI. The Redistricting Process; Judicial Review; Qualifications of Legislators § 2 – The Number of Legislators §
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