How Democrats’ redistricting amendment could give them more power

Accounting for federal delays in the 2020 census, New York’s Democratic elected officials are pushing a new amendment to the state constitution to condense the redistricting schedule. The proposed amendment makes several other adjustments to the state’s redistricting plans, including some that would likely enhance power of a party that enjoys large majorities in both chambers of the state Legislature – as Democrats may next year. 

The amendment, which was quickly passed on a party-line vote by both houses of the Legislature in late July, needs to be voted on again next year before it can be approved by voters in November 2021. These are the changes amendment would lead to if finalized:

New timeline

All the timing for New York’s original plans for redistricting have been thrown off by the coronavirus pandemic. The census of the United States population, which provides population data needed to determine congressional districts, had to be extended by several months because of the health crisis. 

This means census data being sent to the states will be delayed. Normally, states would know how many congressional seats they’ll get by January 2021 and would receive data on the distribution of population, which is needed to draw district boundaries, in the spring. But the U.S. Census Bureau has asked Congress for a four-month extension on delivering this information because the count has gone on longer than anticipated. Congressional Republicans have been resistant to those calls, urging the agency to stick to the original timeline, despite concerns over accuracy, but Census Bureau officials have made it clear that they’re already on course to blow past the legal deadlines. The process has been further complicated by the fact that the Trump administration has successfully pushed for the count to end a month earlier, making it more likely to result in an undercount that may increase the likelihood that New York loses two congressional seats instead of just one.

As a result, New York must adjust its schedule to account for the delays at the federal level. 

In 2014, a constitutional amendment passed creating a new redistricting system in New York after a contentious redistricting battle occurred in the aftermath of the 2010 census. As a result, a 10-person redistricting commission must submit a redistricting plan to the state Legislature by Jan. 15, 2022. If that plan isn’t approved, the commission can send an alternate plan no later than Feb. 28, 2022. But if state legislators reject both proposals, they regain the authority to draw maps. 

Under the proposed amendment, the timeline is condensed. The commission has to send in its first plan by Jan. 1, 2022, and if elected officials don’t agree to it, have to send a second plan by Jan. 15. Similar to the current system, if both plans fail, the Assembly and Senate become responsible for determining the legislative boundaries.

If the authority to create maps falls to the state Legislature, it must act quickly in order to give candidates time to gather petitions to get on the ballot in advance of the June primaries. If suits were filed to block the new boundaries, arguing that they in some way violated state or federal law or the state or federal constitution, that could further complicate that year’s election cycle. 

More power under single-party rule

The 2014 constitutional amendment created complex voting rules for the 10-person redistricting commission, which varied depending on the partisan composition of the state Legislature.

Eight of the commission members are picked by Democratic and Republican leaders in both the Assembly and the state Senate. Those members – who have already been chosen – will then vote to pick the final two members.

At least seven members of the commission must vote on the plan for it to be sent to the Legislature. However, certain appointees must be included among those seven depending on whether the state is held under one-party control or if the Assembly and Senate are controlled by different parties. 

If Democrats were to maintain control of the Assembly and Senate, for example, one appointee from each party in both the Assembly and the Senate must vote yes. But if the Assembly and Senate weren’t led by the same party, only an appointee from both the Democratic Assembly Speaker and Senate Republicans would be needed for the plan to move forward. 

If the two chambers were controlled by different parties, a simple majority would also suffice to adopt the plan in the Assembly and Senate.If Democrats retain control of both the Assembly and Senate, the state Legislature must reach a higher threshold for the plans to get approved. Under one-party rule, two-thirds of both legislative bodies would have to sign off on the plans. 

However, if the commission can’t come to an agreement or if state legislators fail to agree on one of the commission’s plans, the Legislature regains the power to redraw maps. 

The new constitutional amendment would do away with many of these rules. If the commission approves a plan with seven votes – which necessitates the inclusion of at least one Republican appointee and one appointee chosen by the other commissioners – the Legislature can pass the redistricting plan with a simple majority.

But if they can’t settle on a plan with the support of seven commissioners, the proposal with the greatest approval is then sent to the Legislature, which must pass it with a 60% supermajority. No consideration is given to which party is or isn’t in control of the Legislature.

This means that Democrats – who are likely to maintain control of the Senate – would have an easier time pushing forward any plans they support, while Republicans would lose leverage.

However, under the current redistricting system, one-party rule could also lead to partisan redistricting. Democratic-appointed commissioners could hypothetically block proposals to ensure the redistricting decisions are returned to elected officials, who would then control the decisions. 

The amendment would also remove rules that require commissioners pick two co-executive directors representing both political parties and requirements that appointees of both parties must vote in favor. Instead, a simple majority of the commission can pick the executive directors. 

The amendment’s sudden passage this month with minimal input from the public has raised concerns among some good government activists. “Starting an amendment process right as the redistricting commission is supposed to start their work, in some ways, derails the process,” said Rachel Bloom, policy director at Citizen Union, a good government advocacy group in New York. “Both Republicans and Democrats on the commission will be less likely to cooperate knowing that the rules governing the commission are going to change.”

Some watch dogs were less concerned specifically about the change in voting rules. “We weren’t troubled by that because we always viewed that the redistricting commission that was put in the constitution in 2014 was going to just be a political creature appointed by the legislative leaders,” said Blair Horner, executive director of the New York Public Interest Research Group.

Provision requiring inclusion of undocumented immigrants

President Donald Trump has been trying to exclude undocumented immigrants from being counted while determing how congressional seats are distributed – an effort that is likely unconstitutional. Even so, the proposed amendment clarifies a provision ensuring that all the state’s inhabitants are included in the state’s count. 

A cap on the number of state senators

The recent constitutional amendment caps the number of state senators at 63. Republicans have historically expanded the number of Senate seats in order to retain control of the body. 

Ensuring incarcerated people are counted from their original address

Since 2010, New York has already counted incarcerated people at their previous address for the purposes of redistricting, rather than counting them at their prison. But the proposed amendment would enshrine that practice in the state’s constitution.