10 Things You Probably Didn't Know About Redistricting

New Yorkers have shown a much greater interest in addressing gerrymandering than ever before. But there is still a great deal about the current debate that is largely unknown, misunderstood, or unsaid.
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Thanks in large part to Ed Koch, New York Uprising, and the ReShape New York coalition of good government groups, New Yorkers have shown a much greater interest in addressing the decennial practice of gerrymandering in their state than ever before. But despite the increase in attention the issue of redistricting has received from the media and the public, there is still a great deal about the current debate that is largely unknown, misunderstood, or unsaid. The following are ten things you probably didn't know about redistricting:

1. It's not just the Republican Senate that wants to keep redistricting in the State Legislature's hands. It has been widely reported that were the lines redrawn according to a fair and equitable process that the Republicans would almost definitely lose the majority in the State Senate, but Assembly Democrats have just as much a vested self-interest in controlling the map. The two cardinal rules for the leaders of any legislature are: 1) protect your conference; and 2) protect your members. If legislative leaders are unable or unwilling to deliver on these core requisites, their power is severely undermined and their ability to get business done greatly diminished. Losing control of the districting process means losing control of their members' fates, a power no leader worthy of their position will cede without a fight. In addition to the concerns of their members, there are personal considerations at play for the leaders, too. Assembly Speaker Shelly Silver's own district is a careful exercise in gerrymandering, and there are several plausible ways in which the lines could be redrawn that could make it far more difficult for him to retain his seat. Republican Senate Majority Leader Dean Skelos also has to watch his own back. His Long Island district could easily be finessed to let an influx of Democrats turn his solidly red district into a deeply contentious purple.

2. Redistricting doesn't necessarily lead to more competitive elections. For some, this observation may be obvious, but it is the facts that back it up that make it worth noting. According to an article by Richard H. Pildes from the Winter 2006 Nova Law Review:

[T]he post-redistricting elections in 2002 were the least competitive in American history. Challengers managed to defeat only four congressional incumbents. More than one-third of state congressional delegations did not change at all. There were 338 incumbents who won by more than a twenty-point margin, the generally accepted definition of a 'landslide.' There were only thirty-eight minimally competitive districts nationwide, using the generally accepted definition of less than a ten-point margin of victory (and even many of those districts were designed by commissions, not partisan legislatures). These figures reflect a dramatic decline from previous decades of competitiveness.

3. Governor Cuomo might secretly want a Republican Senate. Contrary to the usual considerations of party politics, Governor Cuomo might not be in as big a rush to banish the New York State Republican Party into oblivion as Eliot Spitzer was. In fact, it could benefit Governor Cuomo's agenda to have the two houses of the Legislature split. Majority Leader Dean Skelos has proved adept at delivering his members' vote on difficult votes, unlike U.S. House Speaker John Boehner, who has struggled to rein in the Tea Party faction of his conference. Skelos has also shown himself to be a more skilled politician than Democratic Senator John Sampson, who spent his two unproductive years as Majority Leader struggling to hold his slender majority together through a series of embarrassing fiascos, and even now, in the minority, has lost four of his members, including the former Deputy Majority Leader, Jeff Klein, to their own Independent Democratic Caucus. With Skelos's help, Cuomo passed an ethics bill, a property tax cap, a rent regulations extension, and a tough love, on-time balanced budget. Skelos even let his members vote their conscience on marriage equality, a longtime legislative priority among progressives that the Democrats failed to pass when they were in control of both houses of the legislature. As Governor Cuomo continues to pursue an aggressive agenda, he might find that he can get a lot more done with a Republican Senate, or, if nothing else, he'll have a scapegoat to point fingers at if things don't go his way.

4. Districts in Queens and Staten Island don't have to be pre-cleared by the Feds. The Voting Rights Act requires that any lines impacting Manhattan, Brooklyn, and the Bronx be approved by the U.S. Department of Justice, so that they "neither ha[ve] the purpose nor will have the effect of denying of abridging the right to vote on account of race or color... or membership in a language minority group." Queens and Staten Island, however, are exempt from the provisions of the Voting Rights Act that mandate the pre-clearance of lines by the Justice Department or Federal courts. Thus, despite Queens being quite possibly the most diverse place in America, there is a lot more latitude to draw lines that break up communities of color and blocs of ethnic voters.

It is important to note that the focus of the Voting Rights Act is on preventing retrogression, not establishing proportionality in the divvying up seats. In other words, while certain communities of color may wish to have a district drawn to favor their group, as, for instance, the Dominican American National Roundtable is lobbying in the case of the Congressional seat currently held by Charlie Rangel, the Voting Rights Act does not require that any such accommodations be made. Incidentally, since the Supreme Court's June 22, 2009 decision in Northwest Austin Municipal Utility District Number One v. Holder the preclearance provisions of the Voting Rights Act have stood on precarious legal ground. Writing for the majority in an 8-1 decision, with only Justice Thomas in dissent, Chief Justice Roberts held that the "the preclearance requirements... raise serious constitutional questions."

5. Governor Andrew Cuomo didn't invent the veto. Governor Cuomo has assumed the mantle of the reformer by vowing to veto any self-serving lines drawn by the State Legislature, but he is not the first governor to issue such a warning. The governor's father, Mario Cuomo, also threatened to veto the Legislature's lines when he was in office, as did his successor George Pataki. Neither, however, actually followed through with their threat. Even if Andrew Cuomo does nix the lines, the Legislature can override his veto with a two-thirds majority in both chambers.

6. A June primary could hurt incumbents. The 2009 Military and Overseas Voter Empowerment Act, championed by Senator Chuck Schumer, means that New York will have to move its traditional September primary to earlier in the year to give voters in the armed forces ample time to cast their ballots. One possibility is August, but the New York City Department of Education is objecting, because it doesn't want to incur the cost of opening all the schools that serve as polling places. The other possibility is June, which currently seems the most likely scenario, but that could be an unexpected blow to incumbents in the State Legislature, who customarily cruise to reelection. That's because the State budget is due on April 1st, and the 2012 budget debate promises to be a particularly contentious one that will almost inevitably lead to painful and politically unpopular cuts -- hardly the type of choices a State Legislator wants to make right before pivoting to defend his or her seat. To make things worse, the earlier primary means assemblymembers and senators will ostensibly have to be doing their job at least two days a week in Albany, while simultaneously campaigning back home, whereas normally they would have a break from session to secure their reelection. This could prove a heavy burden, particularly for those members of the Legislature not used to working too hard.

7. The NY-9 Congressional election will have statewide ramifications. Because of greater proportional population growth in states like Texas and Florida, New York State will lose two seats in the House of Representatives in 2012. Traditionally, Democrats and Republicans have consented to sharing the pain by each party absorbing the loss of one seat. When Democratic officials selected David Weprin as their candidate to replace disgraced former Congressman Anthony Weiner they made it pretty clear that they chose him as a placeholder. If Weprin is victorious in NY-9, where Democrats hold a massive 3-1 registration advantage, he'll step aside and let the seat be redistricted out of existence, thus neatly taking care of the Democrats' share of the two lost Congressional seats. But now that the Republican candidate Bob Turner is polling within six points of Weprin, upstate Democrats like newly elected Erie County Rep. Kathy Hochul (who came into office on May 24th of this year, after the Chris Lee sex scandal) and North Country Rep. Bill Owens are almost certainly starting to worry that one of them could be designated for the chopping block if the Democrats are upset in NY-9. On the other hand, upstate Republicans like freshmen Reps. Ann Marie Buerkle (Syracuse) and Richard Hanna (Utica), whose districts have been eyed for elimination, are likely imagining a once-inconceivable reprieve if Turner wins and is subsequently redistricted out.

8. Assembly special election winners may wind up losers. New York City's population increased in all five boroughs over the last decade, but not by as much as on Long Island and parts of Upstate, particularly Orange, Dutchess, and Rockland Counties. As a result, according to CUNY's Center for Urban Research, New York City may lose two Assembly seats to its neighbors to the north and to the east. If that is the case, then the victors of New York City's four special election Assembly races on September 13th, 2011 will immediately have to do their utmost to curry favor with Speaker Silver to stave off elimination. While the natural move of drawing out indicted five-term Assemblyman William Boyland Jr. may spare one new NYC member, look for one of the special election winners to possibly end up the odd man out.

9. Beware the word "independent." Good government groups have been united in calling for an independent redistricting commission, but a commission's independence rests almost entirely on who appoints it. Governor Cuomo has vowed to veto any lines drawn by the Legislative Task Force on Demographic Research and Reapportionment (LATFOR), the committee of State Legislators legally charged with the job. While it is true that LATFOR by its nature is virtually incapable of drawing lines that are not self-serving, several of the proposed alternatives for an independent commission are not much better as they call for the Legislature to appoint the "independent" commission's members, thus leaving the Legislature still in complete control of the process. In a lot of ways, such a commission would be even worse than LATFOR, as it would insulate the gerrymandered lines from public criticism and accountability at the ballot box, while allowing politicians perpetrating the same old shenanigans to falsely portray themselves as reformers.

10. The reformers don't necessarily win if the courts draw the lines. According to a March 2007 report from the New York City Bar Association, in 1992 and 2002, when New York's redistricting plans were drawn by presumably nonpartisan State Supreme Court referees or Federal District Court special masters, the judiciary did not ignore the interests of political parties and incumbents. In fact, the courts tried to arrive at the type of bipartisan compromise the Legislature was unable to achieve through its own deliberations. As a result, the lines, even when drawn through a process that is presumably fair and honest, have been far from the politically neutral, nonpartisan ideal for which reformers are striving. That is because the laws as they are currently written facilitate and institutionalize gerrymandering, which is the chief reason why many good government groups believe that the redistricting process will ultimately have to be reformed through amending the State Constitution.

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