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Public battle begins over redistricting constitutional amendment

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The redistricting conversation has been focused lately on the incremental issues of the now: Cuomo’s increasingly pale veto statements, a federal court pushing forward with their own congressional maps, the state legislature failing to meet its own deadline for new maps.

But there’s also a battle of ideas happening over what a constitutional amendment—something Cuomo and others say could be part of a compromise in the current process—giving future redistricting over to  an independent process. But are all processes created equal?

The Skinning of a Redistricting Cat

Back in September we looked at what independent redistricting could look like in New York State, based on models in other states and conversations with democracy advocates. Lately there has been an op-ed back-and-forth going on between two different visions of what “an independent process” really means.

The first we’ll call Plan A. This line of argument starts with a belief that the Governor should be using his veto as a cudgel to get the legislature to come to the table.

“A veto is essentially a spanking - it stings, but it's temporary, and will not ultimately stop the bad behavior when Cuomo is no longer governor," said Justin Levitt, Associate Professor of Law at Loyola Law School, in a statement after a conference call organized by Citizens Union on Tuesday.

According to Citizen Unions’ Dick Dadey, in exchange for the passage of lines that have gone through “meaningful changes”, the Governor should demand that legislators pass “lasting and permanent redistricting reform through statutory change and a constitutional amendment.”

In an op-ed in the Albany Times-Union last week, Columbia University Law School professor Richard Briffault—vice-chair of the Citizens Union board of directors—laid out the broad strokes of what such an amendment could include:

A constitutional amendment could impose rules that would limit the ability of the majority parties in each house to run roughshod over the minority parties. Even if the Legislature is given an important role in the redistricting process, a constitutional amendment creating an independent body and redistricting standards would be an improvement over a system in which redistricting serves as an incumbent entrenchment device.

Former Attorney General Robert Abrams—Citizen Union Foundation president—specifically pointed to the Iowa model in a statement last week as an example of how New York could setup a redistricting. In Iowa, an independent staff is responsible for drawing lines. In the end, though, the state legislature and governor are given the power to accept or reject the lines.

Abrams notes in his bullets in the release how the independent commission would get picked, as well as the role legislators could play:

  • A commission comprised of equal representation from the four legislative leaders that ensures a meaningful role for the minority party conferences' appointees, and includes for the first time appointees who are not enrolled in either major political party.
  • A commission staff that is appointed by the commission and is also independent.
  • If the legislature has a role in approving the commission's district lines, limits need to be placed on any amendments to such lines and there must be rules to ensure that the minority party conferences are involved in such approval.

In this appears to be the greatest sticking point: the role of the legislature.

Is This What Independence Looks Like?

On the other side—we’ll call them the Plan B group—stand in unequivocal opposition to the lines and calls on Cuomo to veto them simply because they’ve been drawn by the legislature.

“The worst thing that can happen at this point if the governor sticks to his veto threat is that the federal courts will step in to draw the necessary maps. How bad is that? Not so bad, and far from the "chaos" that Cuomo seems to fear,” wrote James A. Gardner, a professor at SUNY Buffalo Law School, in an op-ed for Newsday last Friday.

According to this line of thinking, giving legislators the maps they want will only encourage them to disregard whatever agreement they had with the Governor. By actually vetoing the lines, Cuomo would have flexed his muscles and kept his promise.

“The Governor has repeatedly called for a better process this year and a better product in the future: he can have both,” wrote Common Causes’ Susan Lerner in a statement last week. “Vetoing the lines and letting the courts handle the process is the best possible outcome for this redistricting cycle. New Yorkers have been betrayed by every Assemblymember and Senator who promised to establish an independent redistricting commission and didn't. The Governor can restore their faith by keeping his promise.”

If the lines must be vetoed because they are not independently drawn, then a constitutional amendment must also be free of the legislature’s influence as well.

“[W]e must pass a state constitutional amendment placing redistricting beyond the reach of change by the ordinary state legislative process,” Professor Gerald Benjamin, a professor at SUNY New Paltz, wrote in his op-ed in the Times-Union on Sunday.

He continued:

A constitutional amendment must provide for an independent commission with an odd number of members (5 to 13) appointed by a diversity of authorities exclusively from a pool of interested citizens. Lobbyists, elected officials and those directly or indirectly dependent upon them for employment could not serve. Members would reflect the political and demographic diversity of the state.

They would have a clear timetable and employ clear criteria, including in order of priority: compliance with federal requirements, observance of the integrity of the state's regions — defined by its natural and built environment — and recognition within regions of social and demographic communities of interest.

Use of data reflecting partisanship or incumbent residency in designing districts would be prohibited. Finally, the Commission's decisions would not be subject to revision by the Legislature.

The Answer Is Cuomo in the Wind

If there’s an indication of which way the Governor’s leaning, it would appear towards Plan A. As the Democrat and Chronicle reported on February 17:

[Cuomo] said he would veto the lines as they are, but said there are conditions under which he would approve them.

He said the lines must be more fair — “less hyper political” than they are now — the State Legislature must commit to passing a constitutional amendment and a law must be passed to reform the system, in case a constitutional amendment, which requires passage over two years, is never passed.

“I think that is the optimum you could have,” he said.

“I think the best thing is a constitutional amendment, a law that would make a change, and better lines,” he said. “Fairer, less hyper political lines.”

Until the legislature actually delivers revised lines—they blew by a self-imposed second draft deadline on Monday—it’s unclear whether the Governor will be willing to make any compromise at all, even as the battle over the details of a potential compromise is already playing out.