Gardner: Gov. Cuomo should veto the maps

James A. Gardner is vice dean for academic affairs and a professor of civil justice at SUNY Buffalo Law School.

'No man," wrote James Madison, the father of our Constitution, "is allowed to be a judge in his own cause."

That very sensible prohibition on self-dealing is reliably violated during the once-a-decade spectacle of redistricting, when elected officials get the chance to draw their own districts.

Self-dealing of any kind is bad enough, but the scale on which it has been practiced by the New York State Legislature is in a class by itself. For all but two of the last 40 or so years, a corrupt deal between the major parties has kept the Senate in Republican hands and the Assembly under Democratic control -- in a state where registrations run Democratic by nearly 2 to 1.

The tool by which the parties have implemented their deal is partisan gerrymandering. Instead of fighting for fair and sensible representation, the parties have colluded to draw district lines that perpetuate the status quo, suppress electoral choice, squelch meaningful competition, and make the preferences of voters largely irrelevant to the distribution of partisan power within the state.

Gov. Andrew M. Cuomo has been rightly critical of this way of doing business. He has publicly identified a set of sound principles of fair representation, and threatened to veto any redistricting plan that fails to observe them.

The legislature has responded to this threat with a delaying tactic. If it does not adopt new district maps until the last possible moment before this year's state legislative and congressional campaigns must begin, the legislature appears to believe, then the governor cannot veto the maps because doing so will cause chaos.

Without valid maps, candidates will not know the boundaries of the districts in which they wish to run. They may not even know in which districts they live. Strong challengers will be discouraged from running against incumbents. The whole matter will have to be settled in the courts under extreme time pressures.

So far, the strategy may be working. The governor has retreated from some of his strongest statements committing to fair redistricting, and has characterized the influence of courts on the redistricting process as "chaotic."

Cuomo should hold firm. The state legislative maps produced by LATFOR, the Legislative Task Force on Demographic Research and Reapportionment led by state legislators, do not conform to his principles of fair representation. Consistent with New York custom, these maps manipulate district boundaries to continue the bipartisan gerrymander of the state. The task force has not yet even prepared a new congressional map.

The worst thing that can happen at this point if the governor sticks to his veto threat is that the federal courts will step in to draw the necessary maps. How bad is that? Not so bad, and far from the "chaos" that Cuomo seems to fear.

On Tuesday, the chief judge of the U.S. Second Circuit Court of Appeals named a three-judge panel to oversee redistricting litigation. That panel, in turn, appointed U.S. Magistrate Roanne Mann as a special master, with the power to hire experts and, if needed, to redraw district lines for New York's congressional delegation or legislature. All the parties appear in court on Monday.

Unlike the State Legislature, the federal courts have no stake in the outcome of redistricting; they are not self-dealing. Moreover, the court and its special master will have the discretion to draw lines based on sound redistricting principles.

Last month, in a case from Texas, the U.S. Supreme Court ruled that the federal judiciary has limited discretion to displace redistricting plans that have become law on account of having been signed by the state's governor. In that case, policy choices made by the legislature must be respected by federal courts even if those choices look suspiciously like partisan gerrymandering.

On the other hand, a federal court is not so constrained if there is no legislative plan because the governor has vetoed it. In that case, the court may draw lines according to its best interpretation of fair districting principles, such as "compactness, contiguity, preservation of municipal boundaries, maintenance of the cores of existing districts, communities of interest, and political fairness."

Paradoxically, then, Cuomo's veto of the legislature's bipartisan gerrymander would not create chaos. It would instead open the door to a court-drawn plan that is, very simply, fair.

In fact, that is just what happened in each of the last three redistricting cycles when the legislature failed to enact a congressional redistricting plan. Special masters drew congressional district maps. Although the masters' plans were not ultimately adopted -- because the legislature finally pulled itself together to enact gerrymandered lines -- these real-life examples show that federal courts are eminently capable of drawing districts in a nonpolitical way.

If the governor truly wants a fair outcome, he should stick to his plan and veto the legislature's proposal.

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