Does Today’s Supreme Court Redistricting Decision Affect New York? No. But the Legislature Can Gerrymander the New Commission.

Today, the U. S. Supreme Court upheld the right of states to create independent commissions to draw congressional districts. See Arizona State Legislature v. Arizona Independent Redistricting Commission et al). By rejecting the Arizona Legislature’s argument that only the state legislature can redraw congressional plans, states are able to use independent commissions to redraw congressional districts independent of state legislative approval.

New York does not have an independent commission to redraw either state legislative or congressional districts. While a 2014 ballot referendum approved by voters creates a new redistricting “commission,” this commission will serve only in an advisory capacity. The state legislature will still be able to adopt, modify or reject congressional and state legislative plans the commission suggests and draw its own plans.

Despite arguments to the contrary, the state legislature will not be constrained by fair and objective criteria the advisory commission is required to use. Instead, the state legislature, after rejecting two successive commission plans, can do whatever it wants to do, plain and simple. This has the effect of perpetuating incumbent protection plans and defeats the purpose of independent commissions. Further, the Voting Rights Act’s Section 5 federal approval requirements will not be in effect. Section 5 effectively served as a shield against certain legislative overreaching in New York City’ s minority communities. The U.S. Supreme Court gutted Section 5 enforcement several years ago.

If the legislature fails to adopt either the commission plan or a plan of its own, a state or federal court can step in and draw a plan, as happened in 1992 and 2012 (In 1992, the legislature adopted a state court drawn congressional plan to facilitate Voting Rights Act Section 5 preclearance and to prevent use of an already adopted federal court drawn redistricting plan almost nobody liked. In 2012, a federal court drew the current congressional plan).

In today’s opinion, the Court said “the people of Arizona turned to the initiative to curb the practice of gerrymandering and, thereby, to ensure that Members of Congress would have “an habitual recollection of their dependence on the people.” The Federalist No. 57, at 350 (J. Madison). In so acting, Arizona voters sought to restore “the core principle of republican government,” namely, “that the voters should choose their representatives, not the other way around.” Berman, Managing Gerrymandering, 83 Texas L. Rev. 781 (2005). The Elections Clause does not hinder that endeavor. “

New York will not have an independent redistricting process unless state voters first approve a 2017 ballot question asking whether a state constitutional convention should be convened. If this happens, it will be up to a convention to create a truly independent commission and the voters to approve that amendment (or a new state constitution) on Election Day.

Unless that happens, the same process that has repeated itself over and over is likely to remain. The New York Legislature can gerrymander the commission.

To read the decision, click here Arizona Decision.

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