Todd Breitbart directed the staff work on redistricting for State Senate Democrats from 1980 through 2005. He is one of the plaintiffs in Cohen v. LATFOR, which challenges the creation of a 63rd Senate seat.
Several observers of the once-in-a-decade redistricting of the State Senate and Assembly, including former Attorney General Robert Abrams and the nonpartisan good-government group Citizens Union, called on the governor yesterday to compromise on the new lines in exchange for a state constitutional amendment taking this process out of the hands of the legislature -- for the next round, in 2022.
Five years ago, I helped the New York City Bar Association craft just such an amendment. But an amendment should not be linked to the redistricting bill that may come to a vote as early as next week.
If the legislature approves an amendment this year, it would have to be passed a second time in 2013, by the legislators who are elected in November. Only then would it go to the voters for ratification. Advocates of a deal suggest that the legislative majorities -- Republicans in the Senate, Democrats in the Assembly -- would vote for an amendment now, if Gov. Andrew M. Cuomo offers to sign a somewhat-improved version of their redistricting plans in exchange.
But next year, after the legislative majorities have secured their re-election by assiduous gerrymandering, there would be no leverage to force them to pass the amendment a second time. They can hardly be counted on to relinquish the very means by which they remained in power.
Aware of this possibility, advocates suggest that the deal include an ordinary law to create a nonpartisan redistricting committee for 2021-22. But the current legislature cannot bind the legislature of 10 years from now, and without an amendment, the constitution would still give the legislature the final say on the 2022 lines.
That, however, is the least of the problems with this approach.
First of all, the constitution should not be amended on the fly. Any amendment that emerges from this week's closed-door negotiations on the district lines is bound to be hastily and carelessly drafted. Amendments should be based on expert studies and public hearings, like the careful work of the commissions that revised the New York City and Nassau County charters in the 1980s and 1990s.
Moreover, several features of the Senate Republicans' redistricting plan should be considered absolutely unacceptable, even if accompanied by a promise for future reform. They give New York City one less district than census figures warrant, and shoehorn an extra district upstate by maximally underpopulating all the upstate districts.
And most egregiously, they want to repeat -- for what would now be a full half-century -- Senate districts that systematically split the African-American and Latino communities in the towns of Hempstead, Babylon and Islip.
Long Island's population has grown since 1990, preserving its share of State Senate seats only because the growth of minority communities has more than offset a declining non-Hispanic white population. Those communities would now be denied fair representation for 10 more years, in exchange for the mere prospect of reform that might work to their benefit in 2022 and after.
Such a reform, if carefully drafted, would indeed promote good government -- a decade from now. But ending racially discriminatory redistricting would also promote good government -- right now.
Finally, suppose the Senate Republicans can indeed be counted on to approve the amendment a second time in 2013. It is still quite possible that the Democrats could regain control of the Senate, despite the Republican gerrymander. The Senate Democrats would surely not carry out the Republicans' end of a deal they weren't a party to -- and that was designed to keep them out of power.
That means that the ultimate success of the gerrymander-for-an-amendment deal would turn on the effectiveness of the gerrymander, including lines designed to prevent black and Hispanic Long Islanders from electing their preferred senators. The reformers would find themselves depending on a racially discriminatory gerrymander for the adoption of their constitutional amendment. That is directly contrary to their goal, which is fair redistricting for all New Yorkers.
When they have a chance to reflect on this paradox, they should choose not to place themselves in that uncomfortable position.