By John Caher
New York Law Journal (August 25, 2014)
NiLP Note: As you prepare for the November General Election in New York State, beyond voting for statewide offices and for the legislature, there are also three propositions in the ballot. These are:
- Proposal One – Revising State’s Redistricting Procedure
- Proposal Two – Permitting Electronic Distribution of State Legislative Bills
- Proposal Three – The SMART SCHOOLS BOND ACT OF 2014
The first finds itself in court, where its language is being challenged as misleading. The first two articles below discuss the basis of this lawsuit.
The third section provides the actual wording of the three propositions. God luck getting through these!
* “Lawsuit Criticizes Ballot Question on Redistricting” By John Caher, New York Law Journal (August 25, 2014)
* “Reform-group civil war over Cuomo-style redistricting” By Jimmy Vielkind, Capital New York (August 20, 2014)
* “Proposed Ballot Propositions,” New York State Board of Elections (August 2014)
Lawsuit Criticizes Ballot
Question on Redistricting
By John Caher
New York Law Journal (August 25, 2014)
A ballot initiative to create an “independent” redistricting commission was “blatantly designed to perpetuate legislative and political control of the redistricting process,” according to a lawsuit filed in Albany last week.
Leib v. Walsh, 4275-14, filed in Supreme Court, challenges language chosen by the state Board of Elections to describe a proposed amendment to the state constitution. The proposition, slated to go before voters in November, establishes a commission to redraw legislative lines every 10 years.
Although the initiative is billed as a reform measure to discourage gerrymandering, critics note that legislative leaders would appoint eight of the 10 members, and those eight would then select the final two. The legislative vote would change depending on political control: if the two legislative houses were controlled by different parties, a simple majority vote would be sufficient to approve redistricting plans, but if the same party controlled both houses, a supermajority vote would be required.
“No other state body or commission has these unique, shifting voting rules,” according to the action brought by Ithaca lawyer Howard Leib, Common Cause executive director Susan Lerner, Buffalo activist Eric Walker and Brooklyn activist Eleanor Moretta.
The suit claims the proposition is a sham, and the proposed wording is misleading, incoherent and fails to explain what the measure would actually do.
Rather than the 150 word proposal, the plaintiffs suggested a 50-word version that asks voters if the constitution should be amended to “allow New York state’s legislative leaders to appoint a bipartisan commission to establish new state legislative and congressional district lines every 10 years to stated criteria with final approval by the Legislature.”
Neil Steiner, a partner at Dechert, represents the petitioners.
John Conklin, spokesman for the Board of Elections, said attorneys are reviewing the complaint and declined further comment.
John Caher can be reached at email@example.com. Twitter: @JohnCaher.
Reform-group civil war over Cuomo-style redistricting
By Jimmy Vielkind
Capital New York (August 20, 2014)
ALBANY-Good-government groups are preparing to do battle with each other over a ballot proposal to change the state’s redistricting process.
Citizens Union and the League of Women Voters unveiled a new website Tuesday which presents their case in favor of a new commission to draw the state’s legislative districts. They say the commission-which was proposed after Governor Andrew Cuomo broke a promise to veto an arrangement that didn’t end legislators’ control over the process-is better than nothing, despite its flaws.
Other groups, including Common Cause and the New York Public Interest Research Group, say the new commission would not be sufficiently independent from state lawmakers who would appoint the majority of its members. And-echoes of Cuomo’s Moreland Commission mess here-they are angry the ballot language describing the new commission includes the word “independent.” Common Cause has filed suit against the State Board of Elections.
The coming weeks will bring a dense and wonky but nevertheless passionate debate in Rotary Clubs, editorial board meetings and near League of Women Voters tables at county fairs around the state. Groups on both sides doubt they’ll raise enough money for mail, radio or television advertising, though it’s possible the supportive forces-who presumably have Cuomo on their side, since standing by his watered-down reform will be less embarrassing to the governor than seeing it defeated-might come into some cash.
The topic is Byzantine, but voters are really faced with a basic question that could often be asked of Cuomo’s win-the-cycle, bury-the-problem approach to government reform: Is it actually better than nothing?
“A vote no against this amendment essentially preserves the status quo, and the status quo involves the Legislature drawing its own lines and continuing a decades-long practice of partisan gerrymandering,” Citizens Union executive director Dick Dadey told journalists during a Tuesday conference call. “A vote yes is a vote for progress on a fair redistricting process.”
The new commission would have 10 members, two of whom would be appointed by each each party conference in each house. The members could not be legislators or lobbyists and they would pick another two members. The state Constitution and a library of legal decisions have affirmed state legislators’ broad authority to draw districts, but the amendment would require districts to respect communities of interest and forbid them from factoring in incumbent residence and political expedience.
The commission’s maps would be placed before the Legislature for an up-or-down vote. If they are rejected, a second draft would be presented. If that second draft is voted down, legislators could change the lines (within 2 percent) of the proposal.
So ultimate authority over lawmakers’ lines is still in the hands of lawmakers.
NYPIRG, in a report, said the even-numbered panel was destined for gridlock and inefficiency.
Barbara Bartoletti, the longtime legislative director for the League of Women Voters, said the commission’s structure “is as independent as you can get in Albany.”
Common Cause is reaching out to groups around the state to incorporate opposition to the amendment into their political canvassing. The League of Women Voters is mailing its members. Both sides have created PACs, but there’s been no meaningful fund-raising to date.
Proposed Ballot Propositions
New York State Board of Elections (August 2014)
Below is a listing of the statewide ballot proposals which will be voted on at the General Election this year. A summary of each of the proposition appears below, along with a link to a file containing the question as it will appear on the ballot, the abstract summary as well as the full text of the resolution responsible for each proposal.
Proposal One – Revising State’s Redistricting Procedure
Abstract: The purpose of this proposal is to reform the process of establishing new state legislative and congressional district lines that the Constitution requires every 10 years. If the proposal is approved, an independent redistricting commission will be established to determine lines for legislative and congressional districts, subject to adoption of the commission’s plan by the Legislature and approval by the Governor. Under the current provisions of the Constitution, the Legislature is the entity responsible for establishing these lines.
The proposed amendment would amend sections 4 and 5 and add a new section 5-b to Article 3 of the State Constitution. The new section 5-b would establish an independent redistricting commission to determine lines for state legislative and congressional districts. Each decade beginning in 2020, a 10-member independent redistricting commission will be established. Eight members will be appointed by the four state legislative leaders and the remaining two members will be appointed by the eight legislatively-appointed members. These remaining two members cannot, in the preceding five years, have been enrolled in either of the two major political parties in New York State.
The proposed amendment would establish qualifications for the members of the commission. They must be registered to vote in New York. They cannot be the spouse of a statewide elected official, of a member of the United States Congress, or of a member of the State Legislature. They cannot be or have been within the preceding three years a member of the New York State Legislature, United States Congress, or a statewide elected official; a state officer or employee or a legislative employee; a lobbyist registered in New York; or a political party chairman. The proposed amendment would require that, to the extent practicable, appointments to the commission reflect the diversity of the residents of New York and result from consultation with outside groups.
The proposed amendment would establish principles to be applied in creating districts, which must be drawn consistently with the requirements of the federal and state constitutions and federal statutes. These principles include:
No district lines may result in the prohibited denial or abridgement of racial or language minority voting rights. Districts cannot be drawn to have the purpose of or result in the denial or abridgement of such rights.
To the extent practicable, districts must contain as nearly as may be an equal number of inhabitants. The commission must provide a specific public explanation for any deviation that exists.
Each district must consist of contiguous territory and be as compact in form as practicable.
Districts cannot be drawn to discourage competition or for the purpose of favoring or disfavoring incumbents or other particular candidates or political parties.
Maintenance of cores of existing districts, of pre-existing political subdivisions, and of communities of interest must be considered.
While preparing its redistricting plan, the commission must hold at least 12 public hearings throughout the state. The public must be notified of the hearings and be able to access and review the commission’s draft redistricting plans, relevant data, and related information before the first public hearing. The commission must report the findings of the public hearings to the Legislature when the commission submits its redistricting plan.
The proposed amendment would establish voting requirements for the commission. To send a redistricting plan to the Legislature, seven out of 10 commission members must approve a plan. If the Legislature is controlled by one party, then the seven favorable votes must include that of at least one member appointed by each of the four legislative leaders. If control of the Legislature is split between the two major political parties, then the seven votes must include that of at least one member appointed by the Speaker of the Assembly and one member appointed by the Temporary President of the Senate. If seven members of the commission cannot agree on a redistricting plan, then the commission submits the plan or plans that received the most votes, along with a record of the votes taken.
The commission must submit its redistricting plan for the Assembly and the Senate in one bill and the Legislature must vote upon that single bill without amending it. If the plan does not pass the Legislature and get the Governor’s approval or a veto override, the commission must submit another plan. If the second plan does not pass the Legislature and get the Governor’s approval or a veto override, the Legislature can amend the second plan as it deems necessary. The Legislature’s amended plan must comply with the same principles the commission’s plan was subject to. When an amended plan is approved by the Legislature, it is presented to the Governor for action.
The proposed amendment would establish the following voting requirements for the Legislature to approve a redistricting plan:
If the Speaker of the Assembly and the Temporary President of the Senate belong to different political parties and the required commission members approved the redistricting plan submitted to the Legislature, then at least a majority of the members elected to each house of the Legislature must vote in favor of the plan to approve it.
If the Speaker of the Assembly and the Temporary President of the Senate belong to different political parties and the required commission members did not approve the redistricting plan or plans submitted to the Legislature, then at least 60% of the members elected to each house of the Legislature must vote in favor of a plan to approve it.
If the Speaker of the Assembly and the Temporary President of the Senate belong to the same political party, then at least 2/3 of the members elected to each house of the Legislature must vote in favor of a plan to approve it.
The proposed amendment would establish a 60-day deadline by which a court must decide a petition challenging an apportionment plan and would provide the Legislature with an opportunity to correct any legal problems that a court finds with a redistricting plan.
The proposed amendment would create a bi-partisan staff to perform the commission’s duties and would provide for appropriations for the commission’s expenses.
Proposal Two – Permitting Electronic Distribution of State Legislative Bills
Abstract: The purpose of this proposal is to allow electronic distribution of a state legislative bill to satisfy the constitutional requirement that a bill be printed and on the desks of state legislators at least three days before the Legislature votes on it. Under the current provisions of the Constitution, this requirement can only be satisfied by distribution of a physical printed copy.
The proposal would amend section 14 of Article 3 of the State Constitution. It would provide that a bill will be considered “printed and upon the desks” of members of the Legislature if, first, it is set forth in a legible electronic format by electronic means, and, second, legislators are able to review the bill in the electronic format at their desks. The proposal would establish that a bill is set forth by “electronic means” when it is sent between computers or other machines designed to send and receive information, the receiving legislators can print the bill if they choose, and the bill cannot be changed without leaving a record of the changes.
Proposal Three – The SMART SCHOOLS BOND ACT OF 2014
Abstract: The purpose of this proposal is to authorize the creation of state debt and the sale of state bonds in the amount of up to two billion dollars ($2,000,000,000) to provide money for the single purpose of improving learning and opportunity for public and nonpublic school students in New York.
This proposal would allow the State to borrow up to two billion dollars ($2,000,000,000). This money would be expended on capital projects related to the design, planning, site acquisition, demolition, construction, reconstruction, rehabilitation, or acquisition or installation of equipment for the following types of projects:
- To acquire learning technology equipment or facilities including, but not limited to, Interactive whiteboards, Computer servers, and Desktop, laptop, and tablet computers;
- To install high-speed broadband or wireless internet connectivity for schools and communities;
- To construct, enhance, and modernize educational facilities to accommodate pre-kindergarten programs and provide instructional space to replace transportable classroom units; and
- To install high-tech security features in school buildings and on school campuses.
The State Legislature would be authorized to make the bond proceeds available to fund the cost of approved capital projects undertaken by or on behalf of school districts for these purposes.
The proposal also would allow the State to refund the debt to take advantage of lower interest rates if the opportunity arises. To accomplish this, the proposal authorizes the State Comptroller to issue additional state bonds in sums up to or exceeding the amount of the bonds initially issued to refund, to advance refund, or otherwise to repay part or all of such bonds prior to the scheduled dates of their maturity.