Prof. Gerald Benjamin: New York’s Rotten Boroughs, and Fixing Them

As the U.S. Supreme Court considers whether to hear Evenwel et al v. Abbott et al, (Case 14-940) we want to share thoughts on district populations and voting in New York with readers. Evenwel  addresses whether a three-judge district court correctly held that the “one-person, one-vote” principle under the Equal Protection Clause allows States to use total population, and does not require States to use voter population, when apportioning state legislative districts. Our colleague Professor Gerry Benjamin provided NY Election News with a column he published last year focused on giving Assembly districts  with fewer actual voters far more representation in the Assembly than places with far more actual voters.

New York’s Rotten Boroughs, and Fixing Them

by Gerald Benjamin*

What would you say if I told you that in voters in some assembly districts downstate had four times the representation as those in one upstate district? Let me predict. “No. Not possible even in the gerrymandered New York State legislature. It’s against the constitution.”

Yet here are the actual numbers of votes cast for five assembly seats for 2012, with their locations and the names and political parties of those who won election in them:

AD 49 (Brooklyn) – Peter Abbate (D)        13,537

AD 39 – (Brooklyn) – William Colton (D)   14663

AD 47 – (Queens) Francisco Moya (D)      19,312

AD40 – (Queens) Ron Kim (D)                        19870

Four AD Total –                                                        67,382

AD – 135 (Monroe) Mark Johns (R)             68,267

For centuries in British politics, rotten boroughs were de-populated districts that sent representatives to parliament, leading to unfair representation. Modern rotten boroughs in New York are places with fewer actual voters that send representatives to the State Assembly, leading to unfair representation. Assembly districts 39, 40, 47 and 49, some of New York’s modern rotten boroughs, all are on Brooklyn and Queens. Assembly District 135 is in western New York, in suburban Rochester; voters there have one quarter the representation of those in these four downstate districts.

Of course, legislative districts are designed to have more-or-less equal voting age populations to meet federal constitutional requirements. But downstate rotten boroughs consistently have far few actual voters.   Thus the ironic effect of one-person-one-vote – decided by the U.S. Supreme Court a half century ago to undo entrenched biases in representation against more heavily populated areas – is to give places with fewer actual voters far more representation in the Assembly than place with far more actual voters.

This is no anomaly. In 2010, with the gubernatorial election at the top of the ticket, the number of voters in the election for one upstate Assembly seat exceeded the total for five seats in the city. The ratios are different in bigger Senate districts, but the pattern is the same: over representation of New York City voters when compared to those upstate.

New York State is widely regarding as having a voter turnout problem; our state ranked 44^th in the nation in voting participation in the 2012 presidential election. But our research shows that voter non- participation in New York is mostly an urban problem; the more populous the county, the lower the turnout. One reason for low rotten borough turnout is that lots more people in New York City than upstate are not citizens or otherwise ineligible to vote. Yet even accounting for the lower numbers of those eligible, downstate urban turnout is far lower than rural and suburban turnout upstate.

Not incidentally, downstate rotten boroughs are also not competitive. William Colton had no opponent at all; Peter Abate faced no Republican, and got 95% of the vote. Francisco Moya ad Ron Kim won by margins of 49 and 36 percentage points, respectively. In contrast, Republican Mark Johns, facing former Democrat incumbent David Koon in a rematch in 2012, again won by a vote of 51% to 49%.

Politicians in competitive districts are motivated to bring voters out. Not so in non-competitive districts, where it is entirely comfortable to leave well enough alone.

Downstaters hold sway in statewide politics in New York, either Democrats based in New York City or Republicans with appeal in suburban counties. The last person elected governor from north and west of Albany was Nathan Miller in 1920, almost a century ago. Legislative rotten boroughs reinforce this downstate dominance.

Federal courts have found to be constitutional voting systems for local governments that emphasize representation of citizens who actually vote. For example, the cumulative voting method now used in Port Chester produces a village board that reflects the demographic, geographic, partisan and ideological diversity of the community. It allows each voter the number of votes equal to the number of positions to be filled; he or she can use all of these on one candidate, or distribute them among the candidates.

It is unlikely that we will elect ever our state assembly without using single member districts. And if we use districts, using population to design them is entrenched. But maybe after members are elected, each one should have his or her vote in the Assembly itself weighted based on the actual vote cast in the Assembly district. That way, those with higher vote totals in their district would have added influence in state decision making, while members elected from rotten boroughs would have some incentive to encourage more potential voters in their districts to actually vote – to protect or enhance their own power in the body.                                                                                     #

• Gerald Benjamin is Distinguished Professor of Political Science and Director of the Center for Research Regional Engagement and Outreach at SUNY New Paltz. Research assistance for this essay was provided by Terence Gagstetter, CRREO Intern, SUNY New Paltz