What will happen if New York loses a congressional seat?

Political representation is at the forefront of conversations about the 2020 census, which has officially begun on Thursday. The latest estimates predict that New York will lose one congressional seat. If its residents are severely undercounted, the state could lose two congressional districts in the aftermath of the decennial count. That’s what happened in 2010, so the risk that history repeats itself is real. 

This isn’t entirely shocking given that New York has consistently lost congressional representation since 1950, when the state had 45 representatives. That number has since fallen to 27. While New York’s population has grown by nearly 5 million since 1950, the country’s overall population has more than doubled in that same time period. Major population growth, particularly in the South and Southwest and on the West Coast, has therefore resulted in congressional seats being increasingly being reapportioned from states like New York and Pennsylvania to states such as Florida and Texas.

But the process surrounding how New York’s new districts are drawn will be entirely new for the next redistricting cycle, and many questions remain about how politicized the process may become. “We're at a crossroads, in that we have a new process,” said Jeff Wice, an adjunct professor and senior fellow at New York Law School who has helped draft redistricting plans in the state Assembly and state Senate. “That's an untested new process that hasn't started yet. It gives the Republicans and Democrats equal footing in a body created by the Legislature. And we know people will be looking to see how independent the commission members will be. There'll be much more public focus and involvement.” 

During the last redistricting cycle, in which New York lost two congressional seats, Assembly Democrats and state Senate Republicans failed to come up with a compromise on drawing boundaries for congressional districts. The creation of a new congressional map was left to a panel of federal judges and redistricting experts, who drew the current map. The state Legislature did successfully pass plans for state legislative, though it faced a failed lawsuit pushed by state Sen. Martin Dilan accusing Republicans of unfairly carving out a new Senate district. 

To avoid similar gridlock in the future, New York changed its approach to redistricting in 2014 via a state constitutional amendment. Whereas, in the past, state legislators were responsible for redistricting, the new process is meant to reduce political influence by relying on an advisory commission. No one who has been an elected official, lobbyist or political party chair within the past three years is allowed to serve on the commission. 

But experts emphasize that it’s still not considered a fully independent body. Most members are appointed by legislative leaders of both parties – who pick two people each – and the Legislature must approve any proposed maps the commission puts forward.

Democratic and Republican leaders in the Assembly and state Senate have already appointed their members. State Senate Majority Leader Andrea Stewart-Cousins picked John Flateau, a business professor at Medgar Evers College and former chief of staff to New York City Mayor David Dinkins who has experience in census work, as well as David Imamura, an attorney at Debevoise & Plimpton. Assembly Speaker Carl Heastie selected Elaine Frazier, a longtime legislative and state employee who served as a member of the city of Albany redistricting commission, and Eugene Benger, who has held varying legal roles in state government. 

On the Republican side, there are two former state elected officials. Senate Minority Leader John Flanagan picked George Winner Jr., a former state senator, and Ed Lurie, former executive director of the New York Republican State Committee and the New York Senate Republican Committee. Assembly Minority Leader Will Barclay chose Charles Nesbitt, former minority leader in the Assembly, and Keith Wofford, a lawyer who ran to become attorney general in 2018.

These eight members will collectively pick the final two members who will serve on the commission. Once census data comes out next year, the members will begin the process of creating maps for Assembly, state Senate and congressional seats. 

How the commission votes will vary according to the composition of the state Legislature. If Democrats retain control of both legislative bodies, the threshold for the commission to pass its voting plans is higher. At least seven out of the 10 commissioners must sign off, including at least one appointee from each party in both the Assembly and the Senate. Meanwhile, if Republicans were to take back the Senate, the barriers to approving plans would be lower. The seven out of the 10 commissioners signing off on the plans would have to include only an appointee from both the Democratic Assembly Speaker and Senate Republicans.

Party composition in the state Legislature will also affect the threshold needed to approve any plans the commission puts forward. Under one party control, 60% of legislators in the Assembly and Senate must vote to approve it. Under a divided government, a simple majority would suffice. 

“All of these mechanisms, I think, are designed with good intentions, which is to facilitate compromise and make sure that the interests of different political persuasions in the different chambers are taken into account,” Yurij Rudensky, a redistricting expert with the Brennan Center for Justice. “But, practically speaking, it means it can be an easy process to derail.”

The state Legislature can also regain full control over redistricting if the commission fails to produce a plan or if legislators or the governor reject the plans they put forward. This means, in a scenario where Democrats keep control of the Senate, the Democratic appointees on the commission could hypothetically decide to veto any plans put forward, in order to kick control back over to the Legislature. 

“It's going to be incredibly important that the people who are selected by legislative leadership are approaching this in good faith,” Rudensky said. “Not to game the system, because they perceive there's an ability to get some sort of political advantage.”

Susan Lerner, executive director of Common Cause New York, expressed similar concerns about how the commission will work in practice. “Some of the criteria are appropriate and good but it remains to be seen to what extent they will be followed.”

If New York does end up losing at least one congressional district, there is also a question of which representative gets pushed out. But given how many variables go into that making that decision, it’s too early to predict who would likely be affected. “Anybody who thinks they know what's going to happen now has no idea and is probably the least involved in the redistricting,” Wice said. Some incumbents may no longer be around next year, because they could lose their bid for reelection.

“Members of Congress, unfortunately pass away, they retire, they leave office,” Wice said, “and that always happens during the redistricting cycle where members just decide they’re not going to run again, making the elimination of that district a bit easier.” During the state’s last redistricting cycle, the two eliminated seats were respectively held by a Democrat who chose not to run for re-election and a Republican who decided to run for the U.S. Senate.

Information from the census will be vital to determining which parts of the state are seeing population loss that will inform the new congressional boundaries. If certain parts of the state lose more residents, they will be more likely to lose a district. That may likely be the case in upstate New York, which has lost more residents than much of the rest of the state.

Those potential losses also raise questions about how New York would abide by another provision included in the 2014 constitutional amendment, which requires any redistricting plan to maintain the existing shape of districts as much as possible.

“We don't know how that's going to impact what the maps actually do,” Rudensky said, “and particularly in the circumstance of the congressional delegation and potentially losing a seat, if not two, how that criterion will be implemented when certain districts will just cease to exist anymore.”