Should a Deeply Flawed Redistricting Law Be Accepted in Return for First Passage of a Constitutional Amendment?

A guest column by Todd Breitbart.

There has lately been some discussion in the press of the idea that Governor Cuomo should sign a deeply flawed legislative redistricting bill, in exchange for first passage by both houses of a constitutional amendment to reform the process for 2022, coupled perhaps with a statute law addressed to the same purpose. I wish to discuss this idea without making any conclusions, from the press reports, about the Governor's views. This is not a comment on anything the Governor has said, or on any decisions that he is presumed to have made.

I think it would be unwise for the Governor, civic organizations, and other advocates of reform to acquiesce in an otherwise unacceptable redistricting law in exchange for first passage of a constitutional amendment or a reforming statute.
The difficulty of holding the Legislature to any such deal is the least of the problems. That difficulty, of course, is considerable. A constitutional amendment approved by the Legislature this year could not go to the voters until it had been approved again by the newly elected Legislature in 2013. The Legislature that is to take office in January cannot be bound by any deal made now, and the leverage provided by the current redistricting process will be gone. For this reason, it has been suggested that a deal also include passage of a statute reforming the process, which would take effect in 2021-22 if the Constitution has not been amended. But the present Legislature also cannot, by enacting a law, bind a future Legislature as to the substance of a future law – including the redistricting law that is to be enacted in 2021-22 if there is no constitutional amendment. Any such reform would again depend, in 2021-22, on the willingness of a future Governor to veto an unacceptable redistricting bill, and on the limited avenues for challenging such a law in the courts. Litigation is expensive and time-consuming, and will not address the many ways in which a constitutional law might nevertheless be unwise or unjust.
But the problems with this sort of deal go much further than the problem of trusting legislators to ignore their self-interest when they have already got the districts they want.
1. It is very likely that a constitutional amendment drafted under the time pressure of such a deal would be hastily and carelessly drafted. There would be no time for hearings, or for soliciting in any form the views and criticism of persons who are knowledgeable about the questions involved. Consider, by contrast, the careful and time-consuming work of the Commission that produced the New York City Charter revision after the Board of Estimate was declared unconstitutional.The Constitution should not be amended on the fly. Procedure is indeed of great importance. But that principle surely applies to the procedure by which the Constitution is amended, especially when the questions addressed by the amendment are so complex.
I can illustrate this point by telling a story on myself. The NYC Bar Association's 2007 report recommending a constitutional amendment was issued after months of careful deliberation and debate, in which I participated as a consultant to the Association's Committee on Election Law. But the finished report, as good as it is, was a starting point for discussion, which is why it contained several appendices discussing the merits of alternative approaches. It was not drafted with the public hearings that should precede the approval of a far-reaching and complex constitutional amendment by the Legislature. And a wider net should be cast for comment and criticism form those who are knowledgeable about the many difficult questions involved. After the report was published, it was called to my attention that the provisions that I had drafted on appropriation of funds for the proposed redistricting commission were inconsistent, in ways that were entirely unintended, with existing NYS constitutional provisions on the budget. I ought to have been more mindful of the limits of my own experience and expertise. Much worse can happen in the conditions in which a constitutional amendment might now emerge.
2. Any redistricting bill that is agreed upon now, in exchange for first passage of an amendment, will have features that should be considered absolutely unacceptable. Among other such features, the Senate plan is almost certain to continue – for what will now be a full half-century – the systematic splitting of the black and Hispanic communities in Long Island. The members of those communities would be told that their interests (including, for example, their ability to use political power to demand equitable school financing) are to be ignored for one more decade – in exchange for the mere prospect of a procedural reform that might work to their benefit in 2022 and after. Such a reform, if carefully drafted, would indeed serve the purpose of good government – ten years from now. But an end to racially discriminatory redistricting would also serve the purpose of good government – right now.
It is not enough that the victims of this discrimination could seek relief under the Voting Rights Act. The difficulty and great expense involved in any such litigation is one obstacle. And the threshold conditions that the US Supreme Court has set for plaintiffs seeking such relief (made even more stringent in Bartlett v. Strickland, 556, U.S. 1 (2009)) may make it unavailable, even in situations in which the voting power of minority groups is clearly being diluted, and in which a fair redistricting would give them the ability to elect the representatives of their choice.
I cite the splitting of the LI black and Hispanic communities as one outstanding example. There are likely to be other features in the redistricting bill that should be regarded as intolerable, such as the regional malapportionment of districts and the racial gerrymandering that prevents the creation of additional compact Hispanic-majority Senate districts in the Bronx and upper Manhattan. The New Yorkers who will pay this price, in exchange for a possible long-term reform, will be paying it for ten years. That is a long time. And, of course, in a larger and important sense, we will all be paying the price.
(I don't exclude the possibility that the Assembly plan might also have some highly objectionable features. But I have had all I can do to make a thorough study of the Senate plan, about which I am most knowledgeable, and to offer an alternative to that. Also, it is unlikely that the Assembly plan will have any parallel to the racially discriminatory features of the Senate plan. In that regard, public comment – not just mine – has focused on the Senate plan.)
3. The fulfillment of the deal – what the advocates of reform get in exchange for the bad redistricting law – would depend on a particular partisan outcome in the 2012 election. Suppose that the amendment is well drafted. Suppose also that the Senate Republicans, once they have secured their continued control of the Senate, could be counted on to keep their pledge to relinquish the means by which they secured that control. It is quite possible that in spite of the gerrymandering the Senate Democrats may yet be in the majority next year. The closeness of the 2010 elections, as good a year as the Republicans could have had, the fact that Sen. Grisanti has already lost the Conservative endorsement, and the way the presidential race is shaping up, make this outcome as likely as not. It can hardly be expected that a Democratic Senate majority would give their support to a deal to which they had not been parties, and which had indeed been made for the purpose of keeping them out of power. I do not say this as their spokesman, which I am not, or because anyone has told me this. It is obvious.
So the proponents of reform, some of them scrupulously non-partisan organizations, would be in the curious position of having the achievement of their part of the deal depend absolutely on a particular partisan outcome in the election. I am not suggesting that such organizations should seek a different partisan outcome (although I have no wish to equivocate about my own partisan preference), but only that this should be an uncomfortable position to place themselves in.
4. But it gets worse. That partisan outcome – a continued Republican majority in the Senate – would only come about if the racially discriminatory aspects of the redistricting law work as their designers intend. So for those who support the sort of deal that is being discussed, the ultimate success of their efforts would depend on whether, for example, the LI Senate districts really do prevent black and Hispanic voters from electing their preferred representatives. The proponents of redistricting reform would not merely be acquiescing in a racially discriminatory gerrymander. They would be depending on it for the achievement of their goals. That should be a very uncomfortable position to place themselves in.

Todd Breitbart

P.S. I should repeat here a statement that I have attached to other documents about the current redistricting process.

I directed the staff work on redistricting for the Minority (Democratic) Leaders of the New York State Senate from 1980 through my retirement at the end of 2005. I have offered advice to the redistricting staff of the Democratic Senate Conference during the current redistricting process, and exchanged information with them, but I do not now work for or represent the Minority Leader. I consulted with the Committee on Election Law of the Bar Association of the City of New York during the preparation of their 2007 report on reform of the redistricting process, and was the principal drafter of the text, but I do not, and never did, represent or speak for the Committee or the Association. (I am not a lawyer.) The opinions I express are solely my own.
I should add that I am now one of the plaintiffs in Cohen v. LATFOR, the lawsuit seeking a declaratory judgment that a correct interpretation of Article III, Section 4, of the NYS Constitution would produce a Senate of 62 districts on the basis of the 2010 census data.