On November 2nd, 2021, New York State Voters, will be asked to Approve a Constitutional Amendment revising the Redistricting Process to be based on the 2020 Census. If the Constitutional Amendment is Approved, the Changes will take effect on January 1st, 2022. This Amendment is necessary to address Delays in the Census, created by the Pandemic and to accommodate New York State’s Change from a September Primary, to an earlier June Primary for both Federal and State Elections. These Changes, compressed the time needed to complete the Redistricting. Without these Changes, it is possible that the New Districts will Not be ready in time for the Political Process to Function.

The First day for Circulating Designating Petitions to Qualify Candidates for the Primary Election Ballot is usually set in Late February or Early March. Under current Law, if the State Redistricting Commission is Not Required to Submit its Final Plan to the Legislature until February 28th, and the Legislature can only then Vote on it, possibly Amending it as provided in the 2014 Constitutional Amendment, and send it to the Governor, an Prderly Process for the June Primary will be nearly Impossible.

Taking account of the Disruption of the 2020 Census by the Pandemic and recognizing that the Amendment cannot take Effect until January 1st, 2022, the Amendment provides One set of Revised Deadlines for future Redistrictings beginning in 2031-32, and more Modest Revisions for 2022. In future Decades, the Commission would have to Submit its First Plan to the Legislature by November 1st of the year numbered ‘1,’ e.g., November 1, 2031, with January 1st, 2032 as the Final Deadline for the Second Plan, if the Legislature or the Governor Rejects the First Map Plan.

The Amendment preserves the January 1st, 2022, Deadline for the Current Commission to send its First Map Plan to the Legislature, Eliminating only the potential Flexibility of an Extension to January 15th that is allowed by the 2014 Constitutional Amendment. Eliminating a Flexible initial Deadline for the Commission’s First Set of Maps provides a reasonable time frame for a June Primary. The Members of the Commission will know well before January 1st, 2022, whether the Voters have approved the Amendment.

The Major proposed Change to the Current Redistricting Schedule is the Substitution of January 15th, 2022, for February 28th, 2022, as the Deadline for the Commission to Submit its Final Plan. This Provides the Legislature, the Governor, and the Boards of Elections, time to Perform their Duties, while maintaining an Orderly Election Process for a June Primary.

Even with the Proposed Constitutional Amendment’s Adjustment of the Redistricting Deadlines, the Legislature could still consider a Legislative Adjustment of the 2022 Political Calendar. The Legislature could Delay the First day for Circulating Designating Petitions, Shorten the Petitioning Period, and Reduce the Number of Required Signatures.

Opponents of the Constitutional Amendment, have argued that Changing the Redistricting Schedule, through an Amendment that will take effect on January 1st, 2022, will produce “chaos.” But the Opposite is true. The Amendment is designed to Avoid the Chaos that would Result if the Redistricting Process were Not completed until March for a June Primary.

The Proposed Amendment sets the Number of Senators at 63. This sets a Fixed Number, not a Cap, and Prevents continuing Partisan Abuse of the Old Provision for varying the Number of Districts.

In proposing this Change, the Senate Majority are Limiting their Ability to vary the Number of Senate Districts for their own Benefit. It can be shown, from Statistical Analysis, and Confidential Memos brought to light in Court-ordered Discovery, that in the 2002 and 2012 Redistrictings, the Republican Senate Majority, first determined the Number of Senate Districts that would best serve their Purposes, and then supplied an Interpretation of the Constitution’s Senate-Size Formula that Produced the Desired Number.

If the proposed Amendment is Not Adopted, the Current Democratic Senate Majority, could be in a position to Manipulate the Formula in the same way. Instead, they have chosen to set the number of Senators at 63, and to do so before the Census Data become available from which they might reckon whether this Number works to their Benefit.

The Proposed Amendment requires that, insofar as possible, Prison Populations be Re-Counted from the Incarcerated Individuals’ Prior Home Addresses, and Subtracted from the Population Counts of the Places of Incarceration. This writes into the Constitution a Reform adopted by Statute in 2010 and followed in the 2012 Legislative Redistricting.

The Total Population, rather than Citizen Population, has been the Basis for New York Legislative Redistricting during the last Five Redistrictings, 1972 through 2012. Section 5, was added to Article III by Popular Vote in 1969, becoming part of the Constitution on January 1st, 1970. This Change was Not Controversial and enjoyed Bi-Partisan Support. It received First Approval by the Legislature in, 1967 or 1968, when the Assembly had a Democratic Majority and the Senate a Republican Majority, and Second Approval in 1969, when both Houses had Republican Majorities.

While Section 5-a, leaves in place the phrase “excluding aliens,” it Negates that Phrase and Stipulates that it be read to mean something else. This aspect of the Proposed Amendment merely Clarifies what was done in 1969, Repealing Section 5-a, but also Deleting the Language, “excluding aliens”, that had been Negated by Section 5-a. The Total Population basis for Redistricting that was in effect during the previous Five Decades is Not Changed.

The proposed Amendment Eliminates the 2014 Constitutional Amendment’s differing Rules for Legislative Approval of a Redistricting Plan, which now depend on whether the Assembly Speaker and Senate President Pro Tempore (Majority Leader) are Members of the same Political Party, the only Provision of the Constitution that provides such varying Rules. The Amendment would Permit Approval of the Commission’s Plans with simple Majority Votes instead of making Passage Requirements Dependent on Party Control of each Legislative Chamber. In the Event the Commission Fails to Recommend Plans to the Legislature, a 60% Vote in each Chamber would be Required for Approval.

When the 2014 Amendment was drafted in 2012, the Drafters were confident that there would still be a Democratic Majority in the Assembly in 2022, while they assumed that the Senate Districts adopted in 2012 would Guarantee continued control of the Senate by the Republicans, or by a Coalition of Republicans and a few allied Democrats, the ‘Independent Democratic Conference’ or ‘IDC’). The 2014 Amendment was intended to Guarantee that the Republicans would again be able to Draw the Senate Districts as they like in 2022, while the Democrats would again be able to do the same with the Assembly Districts. But just in case the 2012 senate plan did not work as intended – as indeed it has not – a partisan legislative conference was given the extra protection of the only party-based voting rules in the Constitution.

Today there is No IDC. Currently the Democrats have a Two-Thirds Majority, with Seven Votes to spare, in the Assembly,(107 out of 150, including One Independence Party Member who Caucuses with the Democrats, and a Two-Thirds Majority, with One Vote to spare, in the Senate (43 of 63). Even if the Proposed Amendment is Not approved, the Democrats in both Houses will be able to reach the Two-Thirds Threshold to adopt Redistricting Plans.

Several other Provisions in the Proposed Amendment include:

– Eliminating Partisan Redistricting Commission Co-Directors.

– Removing the ‘block-on-border’ Rule that Protects Towns, but Not Cities, from being Divided by Senate District Boundaries.

– Cleaning-Up and Removing some of the Out-of-Date Provisions from the 1894 Constitution that have already been found to Violate the Equal Protection Clause of the 14th Amendment.

– Authorizing the Legislature to enact Redistricting Legislation if the Redistricting Commission Fails to Complete Action and Develop Plans.

– Providing for the taking of a State Census if the Federal Decennial Census Fails to Report the Whole Number of State Residents.










NYC Wins When Everyone Can Vote! Michael H. Drucker