A memo being circulated by Todd Breitbart, a Democratic redistricting
attorney expert who has worked closely with the Senate Democrats, states that the proposed redistricting constitutional amendment released late last night would bring back prison-based gerrymandering.
In 2010, the practice, which had counted prison inmates in the largely upstate communities where they were held, rather than in the downstate communities where many of those inmates hailed from, was ended through legislation passed by the Democratic-controlled Senate. The Senate Republicans, who have since regained the majority, sued to overturn the law, but eventually dropped the litigation.
But Breitbart says the constitutional amendment, as proposed, would get rid of the 2010 law abolishing prison-based gerrymandering:
The amendment would reverse the one significant reform of New York legislative redistricting since the one-person-one-vote decisions of the 1960’s – the end of prison-based gerrymandering.
The reform enacted [in] 2010 specifically requires LATFOR to create a database in which inmates of state and federal prisons have been subtracted from their places of incarceration, and reallocated insofar as possible to their prior home addresses. LATFOR is further required to use the adjusted database in recommending Senate and Assembly districts to the Legislature.
The prisoner subtraction-and-reallocation law is in the Legislative Law, Section 83-m, Subsection 13, which would be completely superseded by the proposed amendment. The amendment abolishes LATFOR, but does not impose the prisoner subtraction-and-reallocation rule upon the new commission or the Legislature. It thus repeals the rule, and brings back prison-based gerrymandering.
In the memo, Breitbart also points out several other flaws he perceives in the amendment, including what he calls the “absurd” formula for determining the size of the Senate.
Common Cause has issued a press release echoing this concern about prison-based gerrymandering, among many others:
NEW YORK, NY (03/12/2012)(readMedia)– The proposed Constitutional Amendment is a far cry from independent redistricting, with final approval of the maps squarely in the hands of the legislature. This is not reform let alone even an improvement. This is change for change’s sake. The so called “independent commission” is not independent at all, but rather a proxy for the Legislature. In the end, this is an attempt to memorialize a system where both parties run roughshod over the voters. This is the system we currently have which the public has consistently rejected.
The proposed section on criteria is couched in equivocation, with incumbency elevated above the need to keep counties, cities, and towns intact. Communities of interest is listed dead last and is not defined. This pales in comparison to the New York City language which reads: “District lines shall keep intact neighborhoods and communities with established ties of common interest and association, whether historical, racial, economic, ethnic, religious or other.”
Incumbency, in coded language, is given primacy, and there is no mention of prison based gerrymandering. In stark contrast, the proposed criteria devised in the 1967 constitutional convention states simply: “Gerrymandering for any purpose is prohibited” (Section 2, subsection c).
In order to achieve meaningful reform in the future, and for the next ten years, the Governor must hold firm to his promise to veto any politicized maps, and work toward a solid constitutional amendment which truly reforms the redistricting process.
Common Cause evaluated the proposed amendment against its own criteria, and reform criteria outlined by Professor Gerald Benjamin in a February 27th op-ed in the Albany Times Union.
1. Entirely replace what are outdated, substantially invalid constitutional provisions. NO – the amendment layers more confusing language on top of the arcane 19th century language.
2. 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. NO
3. Lobbyists, elected officials and those directly or indirectly dependent upon them for employment could not serve. YES
4. Members would reflect the political and demographic diversity of the state. NOT CLEAR.
5. Clear timetable. YES
6. Employ clear criteria, including in order of priority:
a. compliance with federal requirements. YES
b. observance of the integrity of the state’s regions, defined by its natural and built environment. NOT CLEAR
c. recognition within regions of social and demographic communities of interest. NOT CLEAR
7. Use of data reflecting partisanship or incumbent residency in designing districts would be prohibited. NOT CLEAR
8. Commission’s decisions would not be subject to revision by the Legislature. NO
9. Language to expressly prohibit political gerrymandering. NOT CLEAR
10. Make communities of interest a mandatory priority. NOT CLEAR
11. Eliminate the mechanical requirement not to split counties and towns, allowing for a more flexible standard that recognizes that cities, villages and school districts may also be important indicators of community in different parts of the state. NO
12. Preserve ban on prison-based gerrymandering. NO
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