Redistricting, Democracy and New York: A Practical Solution


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Dr. Abraham Unger, a political scientist at Wagner College's Hugh L. Carey Institute for Government Reform, proposes a relatively simple, eminently practical way to reform New York State's highly partisan, notoriously unfair decennial redistricting process.

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Redistricting, Democracy and New York: A Practical Solution

  1. 1. REDISTRICTING, DEMOCRACY, AND NEW YORK: A PRACTICAL SOLUTION ABRAHAM UNGER, PH.D. Senior Research Associate, The Hugh L. Carey Institute for Government Reform Assistant Professor and Director of Urban Programs Department of Government and Politics Wagner College Research and publication was assisted with a grant provided by the May and Samuel Rudin Family Foundation, Inc. The Hon. Jerome and Helene Berg Public Policy Papers on Government Reform January 2011 Published by the Hugh L. Carey Institute for Government Reform at Wagner College Staten Island, New York Dr. Seymour P. Lachman, Director
  2. 2. Redistricting, Democracy, and New York: A Practical Solution REDISTRICTING, DEMOCRACY, AND NEW YORK: A PRACTICAL SOLUTIONABRAHAM UNGER, PH.D.Senior Research Associate,The Hugh L. Carey Institute for Government ReformWhy Redistricting Reform? Free and honest electoral competition is the one indispensable feature of ademocracy.1 The United States constitution, established upon that ideal, demandsnothing less of our political system than the maintenance of open and fair contests forpublic office. An emergent influential alliance of good government activists, scholars,journalists, public figures, the general public, and reform minded state legislators inNew York suggest in no uncertain terms that this essential American principle hasbeen violated in the state by the way the legislature currently draws district lines forelection of candidates to state office.2 The Economist notes that this issue is “particularly important just now.”3 It isprecisely the right time to be arguing the case for genuinely competitive districts.Districts are decided after each decennial census. The 2010 census has just ended, so aredistricting cycle is now beginning and will conclude by 2012. Therefore, this past1 Jonathan Winburn, The Realities of Redistricting: Following the Rules and Limiting Gerrymandering inState Legislative Redistricting, Maryland: Lexington Books, 2008, page 22 This alliance refers to New York Uprising, a state government reform movement founded and led byformer New York City major Ed Koch. See the “Our Goals” section of the New York Uprising websitewhich makes this point explicitly regarding gerrymandering. Time to bury Governor Gerry, The Economist, October 9, 2010 1
  3. 3. Redistricting, Democracy, and New York: A Practical Solutionmid-term election was more important than usual because its victors will determinedistrict boundaries in New York State for the next decade. The New York State Legislature has, in the words of a recent report by NYU’sBrennan Center for Justice, “primary control of the redistricting process…for its owndistricts… with much of that power exercised at the behest of the leadership.” 4 Sadly,data clearly supports the conclusion, that due to the legislature’s ability to design itsown electoral districts, whichever incumbents happen to be in office during aredistricting period gerrymander district boundaries to keep themselves in office. Regardless of Republican or Democratic majority, that is exactly what hashappened in New York State’s bicameral legislature as the party majority in eachchamber has historically scrambled to do whatever it could to ensconce itself in powerfor as long as possible. Partisan gerrymandering is a powerful political force. It is notmerely an attempt to preserve a particular electoral status quo; rather, it tries toincrease the number of seats the majority party holds.5 In 2010 the DemocraticConference Chairman of the New York State Senate unabashedly proclaimed that hisparty was “going to draw the lines so that Republicans will be in oblivion in the Stateof New York for the next twenty years.”6 Republicans act no differently against theDemocrats when they hold the majority.4 Brennan Center for Justice, New York Redistricting Memo, Analysis, New York: New York University,2010, pages 1-2, Donald Ostiek, Congressional Redistricting and District Typologies, Journal of Politics, Vol. 57, Issue 2,Austin: University of Texas Press, May 1995, pps. 533-436 Bill Hammond, Albany is a city without heroes, New York Daily News, August, 20, 2010 2
  4. 4. Redistricting, Democracy, and New York: A Practical Solution State legislatures are now taking up the business of revisiting their district lines.The lofty goal behind such a review is to ensure that electoral districts accuratelyreflect local population changes that have occurred over the last decade. Since sittinglegislative majorities in the New York State Assembly and Senate determine theirown district lines, the claim is the kind of deficient political reality the electorate isleft with unless alternative options are presented that remove redistricting from fullcontrol by the state legislature. This policy paper aims to do just that by offering practical guidelines somewhatseparating out redistricting from the state legislature. There are already a small groupof states that have taken the leap into this less partisan electoral universe. Californiaand Arizona have implemented independent redistricting commissions. California’seffort was initiated in 2008. Within two years it excited enough political controversyto generate a referendum seeking its repeal. However, the people rejected the idea of arepeal; on November 2, 2010 California voters passed Proposition 20, which not onlysupports the 2008 proposition to establish an independent voting commission outsideof legislative control, but even expands the authority of the commission to includecongressional districts in addition to legislative districts.7 This is a powerful publicstatement that other elected officials ought not ignore if they claim to act in the nameof a clearly frustrated electorate.7 Political: On Politics in the Golden State, Los Angeles Times, November 2, 2010 3
  5. 5. Redistricting, Democracy, and New York: A Practical Solution Experts already acknowledge the incremental success that Arizona’s 2001establishment of an independent redistricting commission has achieved having led toincreased Hispanic representation “without paying attention to the concerns ofindividual incumbents.”8 Iowa trumps all such attempts. State legislative district lines are drawn in Iowa bya “non-partisan legislative bureau that by law cannot take into account anyinformation on voting patterns, or even where incumbent legislators live.”9 In short,Iowa’s redistricting agency is disallowed from access to any information that smacksof partisanship when analyzing district boundaries. The New York Times put it succinctly when it argued in 2009 that “New York’slawmakers should create a nonpartisan, independent redistricting commission to drawlines fairly,” similar to that of Iowa.10 But New York is not Iowa. For example,Iowa’s politics are made simpler, but not necessarily better because it does notcontain the diversity of New York . This is illustrated most clearly by the fact thatIowa has no substantial Voting Rights Act issues.11 This act demands that New York account thoroughly for fair minorityrepresentation in any redistricting plan. New York must apply to the federal8 Florence P. Adams, Minorities and Representation in the New Millennium, Redistricting in the NewMillennium, ed. Peter F. Galderisi, Maryland: Lexington Books, 2005, p. 1639 Peverill Squire, Iowa and the Political Consequences of Playing Redistricting Straight, Ibid., page 26110 Editorial Desk, Gerrymandering, Pure and Corrupt, New York Times, November 12, 200911 Ed Cook, IA, A Nonpartisan Approach to Redistricting, The Legislative Lawyer, National Conference ofState Legislatures, Vol. 15, Issue 1, Winter 2002, page 4 4
  6. 6. Redistricting, Democracy, and New York: A Practical SolutionDepartment of Justice or the U.S. District Court for the District of Columbia for“preclearance” regarding any possible redistricting before state legislativeconsideration to make sure district minority votes are not diluted.12 Iowa’s lack ofsignificant minority populations eliminate the need for any such preliminary concern. If we imagine a redistricting process continuum contained on opposite ends byIowa’s exceptionally independent commission, which is actually a state agency evencontaining the classically neutral public administration term “bureau” in its title, andNew York’s wholly legislatively controlled one, what comes in between? The reasonthat is an important question for New York is because both of these extremes areuntenable for this state at this moment. Even though Iowa’s non-partisan systemmight be beyond political reach in New York at this time it remains clear thatlegislative gerrymandering does fundamental harm to democracy through preventionof competitive elections. This proposal does not suggest the creation of a brand new state entity, which isunrealistic politically and in terms of time since redistricting is now upon us. It alsodoes not focus on arguable constitutional legal issues contained in the redistrictingprocess such as compactness and contiguity. We are advocating here something muchmore basic and foundational to any meaningful redistricting initiative: the formationof a state redistricting framework that attempts to somewhat divorce the legislaturefrom the process.12 Brennan Center for Justice, Ibid., p. 3 5
  7. 7. Redistricting, Democracy, and New York: A Practical Solution This would mean that the transformation of the already extant New Yorkredistricting advisory task force LATFOR (Legislative Task Force on DemographicResearch and Reapportionment) could become a bipartisan redistricting commissioncombined with a more decisive and less advisory role that can achieve our goal. Beforeoffering the details of that plan and the criteria within which a revamped LATFORwould function, it is worth surveying the predominantly shared and mildly varyingfeatures of the California, Arizona, and Iowa commissions as examples from which tocull ideas for a revamped LATFOR. Recognizing these features will preempt any needto reinvent the wheel in this arena. A distinct pathway has been carved out by thesethree states. All that has to be done is to adapt these attributes to structures ready toimplement them in New York.Alternative Models: Arizona, California, and Iowa Arizona has achieved a “substantial degree of independence from the legislature inthe redistricting process.”13 Similar to California, its successful attempt to divorceredistricting from the state legislature was subject to voter referendum, which mayserve as an important source of transparency and participation in the publicconversation on redistricting.14 Both Arizona’s and California’s independent13 Douglas Johnson, Ian Johnson, David Meyer, Redistricting in America: A State-by-State Analysis, RoseInstitute of State and Local Government, California: Claremont Colleges, 2010, page 4214 The Brennan Center report cited earlier suggests a variety of procedural mechanisms through which theNew York electorate can participate in the redistricting process, ranging from ratification of a constitutionalamendment to a vaguely delineated public ability to “respond to drafts before they are enacted.” See theBrennan Center for Justice, Ibid., pages 4 and 5 6
  8. 8. Redistricting, Democracy, and New York: A Practical Solutioncommissions contain equal numbers of Democratic and Republican memberscombined with a minority of non-partisan members. Arizona nominates potential commission members through its Commission onAppellate Court Appointments. Twenty five nominees are then narrowed down tofour, two from each major party, selected by the four state legislative caucusleaders.15 Those four choose a fifth non-partisan member.16 After a month long publicand legislative discussion for “input and recommendations” the Arizona commissionfinalizes its redistricting plan. It “submits maps to the secretary of state forenactment” without any formal authority granted to the legislature for emendation orapproval.17 California’s Proposition 11, passed in 2008 and sustained by referendum two yearslater, nominates commission members through its state auditor’s office,18 therebyremoving the selection process from state legislators completely. California’s final planrequires votes from three of the commission’s Democratic members, three of itsRepublican members, and three commissioners from neither party.19 The structure ofCalifornia’s independent commission completely removes it from legislative control.Arizona’s plan allows for some involvement during the selection process but is still15 Rose report, Ibid., page 4316 Rose report, Ibid., page 4317 Rose report, Ibid., page 4418 Rose report, Ibid., pages 42 - 4419 Jennifer Robinson, Redistricting Laws and Procedures, Policy Perspectives, Utah: The University ofUtah, Center for Public Policy and Administration, Vol. 5, Issue 6, June, 2009, page 2,0,w 7
  9. 9. Redistricting, Democracy, and New York: A Practical Solutionconsidered largely non-partisan in its decision-making process.20 California’s recentcase of a referendum on a referendum was a bitter political contest over either therepeal or confirmation of proposition 11, which reforms state redistricting. Itillustrates how far partisanship has grown. In the November 2010 election, the votersnot only upheld the previous referendum that prevents gerrymandering in the StateLegislature, but also extended it to include Congressional races21. As previously mentioned, Iowa’s redistricting process is viewed as unique byscholars precisely because it is completely non-partisan. Its Legislative ServiceBureau cannot, by virtue of regulation, retrieve any partisan information about areapolitical participation as it draws district maps. Though Iowa’s redistricting plans dogo before the state legislature for a vote, there are strict guidelines limiting the abilityof the legislature to amend the plan, while also holding public hearings and keepingthe legislature to a strict timetable for a vote on it.22 It is not only that these plans seem more democratic. They actually are moredemocratic. Scholars confirm that “the examples of Arizona and Iowa fit within abroader pattern.”23 Redistricting plans designed by independent commissions20 Rose report, Ibid., page 4221 The Economist, November 6, 201022 Perell Squire, Ibid., pages 265-26623 Charles S. Bullock III, Redistricting: The Most Political Activity in America, Maryland: Rowman &Littlefield Publishers, Inc., 2010, page 136 8
  10. 10. Redistricting, Democracy, and New York: A Practical Solution“produced a larger share of competitive districts than when a legislature designedthem.”24LATFOR and Democracy The Brennan Center reports that “In practice, many observers note that as withmany other legislative processes in New York, LATFOR tends to implement the willof the legislative leadership.”25 It is hard to imagine otherwise given that all ofLATFOR’s members are appointed by the majority and minority leaders of eachhouse, with ultimate control in the hands of the Senate Majority Leader and theSpeaker of the Assembly. The partisanship of such a process is underscored by thefact that the majority leaders of the Senate and Assembly appoint one legislator andone private citizen each to LATFOR while the chambers’ minority leaders appointjust one legislative member each.26 Adding to LATFOR’s powerlessness as an earnestadvisory commission, “It does not actually create a redistricting plan; it serves toadvise the legislature as it develops the plan.”27 Not surprisingly, the legislature passes redistricting legislation by majority voteand is not bound by whatever recommendations LATFOR may make throughout theredistricting process.28 The sole purpose of LATFOR is ultimately to analyze censusfigures for a redistricting process in which it has no independent voice. A veneer of24 Bullock, Ibid., page 13625 Brennan Center for Justice, Ibid., page 126 Rose report, Ibid., page 3227 Rose report, Ibid., page 3328 Brennan Center for Justice, Ibid., page 1 9
  11. 11. Redistricting, Democracy, and New York: A Practical Solutionadvisory efforts is offered by LATFOR’s set of recommendations to the statelegislature. The Brennan Center redistricting memo points out that thoserecommendations are actually determined by legislative leadership preferences.29 It is hard to imagine a more legislatively entrenched form of partisan control overdeciding electoral districts. No wonder incumbents not only win continuously, butusually win in landslides.30 Seats open up mostly due to retirement, death, or,corruption charges.31 But, LATFOR exists. Instead of creating a new state redistricting instrument fromscratch, there is no reason not to refine LATFOR to become all that it might. Thebasic administrative cues can be taken from the three states profiled above. Moreimportantly, four foundational criteria must be woven into just such reform if anychanges within LATFOR are to be effective. These criteria are suggested byredistricting scholar Michael McDonald, who considers them modest in the demandsthey make on the framework within which state redistricting ought to occur. Theyare: 1. Independence: a non-partisan selection of commission members 2. Statewide universally objective criteria in drawing districts 3. Transparency of all commission deliberations29 Brennan Center for Justice, Ibid., page 130 New York Times, Ibid., page 3431 New York Times, Ibid., page 34 10
  12. 12. Redistricting, Democracy, and New York: A Practical Solution 4. Public submissions: the commission must solicit public input on possible redistricting maps32Arizona, California, and Iowa all provide variations on just such a theme. Theycertainly bring to the fore the possibility of real independence from legislative control.That kind of substantive independence has the natural spillover effect of creating amore open, objective setting within which to draw fair and competitive districtboundaries.33 Of course, the challenge in a more complex and highly politicized environment likethat of New York, as opposed to Iowa, is to find a way to actually implement anappointment process to an independent commission that is less partisan. An idealrendering of that prospect would be to utilize the 2008 California model, in whichcommission members are selected through a body other than the legislature. In thisway, at least appointees are unbound from direct obligation to legislative leaders andwould not feel as if they “report” to them. Alternatively, commission members could be selected by party leaders once vettedthrough another state agency such as a court appointee committee. Again, replicatingArizona, those partisan members originally prescreened outside of the legislature canthen nominate either fewer, or, better yet, equal numbers of non-partisan members.32 Michael P. McDonald, Legislative Redistricting, Democracy in the States, eds. Bruce E. Cain, ToddDonovan, Caroline J. Tolbert, Washington, D.C.: Brookings Institution Press, 2008, page 15433 Mcdonald, Ibid., page 154 11
  13. 13. Redistricting, Democracy, and New York: A Practical Solution The end result will be a combination of equal members of both major parties plus agroup of at-large members. There can be no doubt that just such a body would devisemore universal standards for redistricting than the typical gerrymandering that hasbecome traditional. Such a group would probably not be averse to holding regularopen meetings to listen to public concerns and thoughts on its progress. Transparencywill flow regularly from a commission honestly curious about what the electoratethinks. The legislature can certainly retain a voice in the selection process, but thepoint is that it ought not retain the only voice. Finally, though New York may not yet be fully ready for a referendum culturesuch as the Sunbelt states of Arizona and California, there is no reason not to adoptthe Iowa model of strict guidelines on legislative redrawing of mapping plansalongside a strict timeline on a legislative vote for a new statewide district map. Thelegislature is no more exempt from regulation for the sake of sustaining democraticbehavior than any other private or public institution.A Threshold for Reform There are three basic problems with allowing redistricting to remain in the hands ofstate legislatures. First, it gives undue advantage to whichever party happens to gainpower during a redistricting year.34 Second, it leads to partisan district boundaries34 The Economist, Ibid. 12
  14. 14. Redistricting, Democracy, and New York: A Practical Solutionthat make no “geographic or administrative sense.”35 And third, it ends up drivingthe “hyper-partisanship of politics.”36 We are certainly living in exceptionally partisan times. Anything that can be doneto alleviate ongoing legislative rancor should be welcome by all who care about theideals put forth by our Founding Fathers. It is just that rancor we now see spillingforth into the public square. Our civic arena has now become as bitter a place as ourstate and national legislatures. The quality of public governance with which we areliving today is not the kind dreamt of by the authors of the Federalist Papers. Oneimportant step forward towards ending this angrily divisive period in Americanpolitics is to begin afresh with the drawing of less partisan, more competitive, statelegislative districts. If gerrymandering is due to state legislative leaders’ control over redistricting, thenthe problem begins at the start of the process with the way redistricting commissionmembers are appointed. As McDonald concludes, “Redistricting commissions aretypically designed to protect, not diminish, the power of party leaders, ascommissioners are often either elected officials or their handpicked lieutenants.”37 Acommission smacking of patronage cannot but be conceived as perhaps leading tocorruption. Conversely, a commission comprised of members with no politicalobligations to senate and assembly leaders cannot but create a more democratic35 The Economist, Ibid.36 The Economist, Ibid.37 McDonald, Ibid., page 153 13
  15. 15. Redistricting, Democracy, and New York: A Practical Solutionprocess and fairer redistricting map, even if that map ends up before the legislaturefor a final vote. Therefore, the fundamental plank in this proposal’s platform is that LATFORmust be staffed without Senate and Assembly leader involvement in appointments.This can be handled by a neutral state agency as in Iowa and California. If thispossibility is currently unrealizable, New York can follow Arizona’s lead and at leastrequire a non-partisan state agency to nominate commission members prior to Senateand Assembly leaders’ final selections. Once a truly independent LATFOR is reconstituted, there ought to be less concernover the legislature’s ability to debate and select from among several redistrictingoptions a revamped LATFOR could potentially present. That is because the plans putinto place would be created by LATFOR without political pressure. Of course, while this proposal may offer both a normative and practical start, thefinal arbiter of its success is political will. While scholars, good government groups,civic groups, and a growing number of the electorate clearly see that something has togive, our elected officials need also to rise to the occasion. Our state assemblymembers and senators, whether they are Republicans or Democrats, must fulfill theirmandate as local leaders of a democracy in action. Otherwise, they can be accused asnot really being democratic leaders. 14
  16. 16. Redistricting, Democracy, and New York: A Practical Solution THE HUGH L. CAREY INSTITUTE FOR GOVERNMENT REFORM at Wagner College Dr. Seymour P. Lachman Director Abraham Unger, Ph.D. Senior Research Associate The Hugh L. Carey Institute For Government Reform at Wagner College conducts non- partisan studies and proposes ways to improve legislative and administrative effectiveness. Wagner College One Campus Road Staten Island, New York 10301 Tel: 718-420-4131 15