NKD recommends voting YES on Ballot Proposals 1, 3, and 4

During the November 2021 general election, New York voters will have the opportunity to weigh in on five ballot proposals. Each ballot proposal, if approved, creates an amendment to the State Constitution. Ballot proposals in New York begin in the legislature. The Senate and Assembly must approve each proposal twice, with the second vote occurring following an election cycle. A typical ballot proposal takes between two and four years to pass the legislature. 

The Board of Elections website provides a sample of how each proposal will appear on the ballot, the purpose of each proposal, and text as it will appear in the constitution. 

Proposal one relates to changes to the redistricting process. NKD recommends voting YES on The New York Redistricting Changes Amendment. A summary of the proposed changes to the constitution as a result of proposal one, including outcomes and implications for each change, is below in the explainer.  

Proposal three and Proposal four are related to voter rights and expanding enfranchisement. NKD recommends voting YES on eliminating the ten-day-advance voter registration requirement (proposal 3) and voting YES on authorizing no-excuse absentee ballot voting (proposal 4). Both of these amendments would expand access to elections and are aligned with our Voting Rights Platform.

Proposal One Explainer 

The New York Redistricting Changes Amendment (A.10839 Summary) is structured on the ballot in such a way that a YES vote approves all changes to the constitution. Opponents of the amendment have concerns that some provisions have the potential to reduce minority party participation in the redistricting process. However, NKD concludes there are sufficient rules to prioritize bipartisanship in the redistricting process, and the potential concerning provisions do not outweigh the beneficial changes made in the amendment.

What Is Redistricting? 

Redistricting is the process of setting, or adjusting, geographic boundaries of voting districts. Legislative and congressional voting district boundaries are required to be redrawn every ten years, after the release of population counts in the decennial federal Census. Redistricting is important to ensure citizens have equal representation at federal, state and local levels of government. Attempts to tailor district lines for political gain, or gerrymandering, continues to be a common occurrence and concern in the redistricting process (Loyola Law School. 2020. Why Should We Care?). Drawing district lines in unfair ways can lead to infringement of the basic democratic power, voting. Ensuring redistricting ensures each district is equally populous, ensures YOUR vote counts the same as everyone else. 

How Does Redistricting Work Right Now in New York? 

Under New York’s current process, the state legislative and congressional districts are drawn by a 10-member advisory commission on redistricting, titled the Independent Redistricting Commission (Princeton Gerrymandering Project. 2021. Census-Related Redistricting Timeline Delays). The commission solicits public input, draws maps, and submits those maps to the state Legislature for an up-or-down vote. 

If the legislature rejects maps drawn by the Independent Redistricting Commission (IRC) twice, the legislature has full authority to amend the Commission’s maps as they see fit. The current system was established by the New York Redistricting Commission Amendment in 2014 (Ballotpedia. 2014. NY Redistricting Commission Amendment, Proposal 1). The IRC has never been implemented before; the 2021 redistricting process is the first time this commission has been formed since the last redistricting process occurred in 2011 following the 2010 census. 

The federal government requires all districts to have nearly equal populations and, the drawing of districts cannot discriminate on the basis of race or ethnicity. New York state has additional requirements for redistricting. Districts cannot be drawn with the purpose or result of denying or abridging racial or language minority voting rights. Districts must be contiguous and compact. And, redistricting should maintain the core of existing districts including the preservation of counties and towns. Lastly, redistricting should protect communities of interest.

What Are We Voting On? 

The New York Redistricting Changes Amendment will be on the general election ballot on November 2, 2021 as a legislatively referred constitutional amendment. In New York, the state legislature is required to pass a constitutional amendment over two successive legislative sessions before referring the amendment to the ballot. The proposed amendment would: 

• Fix the number of senate seats in New York state at 63
• Affirm total population will be the basis for districts and remove language that excludes non-citizens and Native Americans from the count
• Affirm the current practice of counting incarcerated persons at their last known residence in NY state 
• Change submission dates for IRC drawn maps to the legislature 
• Eliminate the higher vote threshold for map approval under same party control in the legislature and alter rules for IRC approval 
• Eliminate the “block on border” requirement and the requirement to place counties, towns, or blocks in the district that creates the most equal senate district 

The amendment is structured as one question, so a YES vote approves all changes to the constitution. Below, we provide details about the each proposed change.

Fixes the number of senators at sixty-three.  Currently, the New York legislature has the ability to change the size of the chamber. Under current law, the state senate must have at least fifty members. As of 2021, the New York state legislature had 63 senators, and the amendment would fix the number of senators moving forward. 

Outcome: Fixes the number of senators to 63, as opposed to a minimum of 50, with no further variation allowed. 

Implication: The flexibility of senate seats has led to gerrymandering district sizes, and the number of seats, to control the chamber. 

Removes language in the NY state constitution that excludes non-citizens and indigenous Americans from the redistricting process. The amendment would remove unused language in the constitution that excludes non-citizens and Native Americans from the population counts used to draw districts and would require that non-citizens and Native Americans be added to the population if the federal census does not include them. Section III of the state constitution defines the total population to be used for apportionment as “inhabitants, excluding aliens”. The state currently defines the total population to be used for apportionment as inhabitants including non-citizens and Native Americans.  

Outcome: Will bring the constitution in line with actual practice in the state by defining total population used for apportionment as the “total number of inhabitants of the entire state, including the number of aliens [or] and Indians not taxed.” It will also remove all instances of “excluding aliens”, and require that non-citizens and Native Americans be added to the total population if the federal census does not include them.

Implication: In addition to removing arcane and offensive language, the amendment codifies existing practices of including the total whole number of persons and will ensure equal representation of all communities based on their true population size. 

Ensuring incarcerated persons are counted in their districts of last residence for the purpose of drawing district lines within New York state. Amending this section affirms an existing New York state law that requires data on incarcerated New York state residents be reallocated to their last known residence (National Conference of State Legislatures. 2021. Reallocating Incarcerated Person for Redistricting). Currently, the US Census counts incarcerated people as residents of the district in which they are confined. Because incarcerated people cannot vote in New York State, counting them in the districts in which they are confined creates an imbalance in representation. The population count in districts with correctional facilities could be grossly inflated by non-eligible voters and would remove incarcerated people from their home district population counts, which can cost those districts valuable representation and funding resources. 

Outcome: Formalizing this law in the NY Constitution will ensure enumeration and identification of incarcerated persons in their place of last residence, regardless of how the federal census counts these individuals. In addition, this brings the constitution in line with actual practice in New York and ensures it cannot be changed without a constitutional amendment.

Implication: Codifying this law into the constitution would make future attempts to use prison gerrymandering more difficult. Prison gerrymandering violates the constitutional right to “equal political power based on population size” (Prison Policy Initiative). This amendment ensures communities from which incarcerated people last resided retain political power and maintain more fair representation. 

Change due dates for drawn maps to the state legislature. The Independent Redistricting Commission currently is required to submit maps of redrawn districts by January 15, and a second plan, if necessary, by February 28. The amendment would update the due dates for drawn maps to fit with the new board of elections political calendar. 

Outcome: This proposed constitutional amendment would require the Commission to submit its first plans by November 15 and its second plans by January 1, except in 2022 when the first plans would be required by January 1 and the second plans would be required by January 15.

Implication: The current timeline for the Independent Redistricting Commission to provide drawn or redrawn maps to the legislature makes it difficult to enact district lines in time for the June state and congressional primaries. Legislative primaries in New York now occur in June rather than August, meaning maps must be in place earlier for candidate filing and qualification process. These due date changes ensure candidates can file in newly drawn districts and that voter registration rolls (due Feb 21) will be accurate. However, there is concern that the new dates will negatively impact the commission’s ability to draw well-informed maps within this new timeline (League of Women Voters of New York State. 2020. Memorandum in Opposition: S.8833 / A.10839). If the commission was unable to submit maps to the legislature in the new timeline, it would give the legislature full power to draw maps. 

Eliminating voting procedures and map approval mechanisms based on party legislative control. The IRC currently is appointed by the majority and minority party leaders in the New York legislature, with two commissioners appointed by leaders in each chamber. In turn, the eight appointed commissioners appoint two additional members, registered outside of the majority or minority party. These ten commissioners then select two co-directors amongst themselves by a majority vote to lead all actions of the IRC including the drawing and approval of maps to present to the legislature. All of the rules governing the IRC change depending on whether or not the legislature is controlled by one party or split between two or more parties. Language in the constitutional amendment would change these rules as outlined below:  

1. Co-directors are to be selected by the commissioners regardless of their political party affiliation or who appointed them
2. Maps must be approved by at least seven members of the IRC regardless of party control or who appointed them 
3. Maps approved by the IRC only require a majority (50%) vote to be approved by the legislature 
4. If both maps drawn up by the IRC are rejected, and the legislature draws their own maps, a 60% majority is still required for approval. If no maps are presented as a result of the Commission failing to vote on maps, a 60% majority is also required in the legislature for any presented maps.

Outcome: Changes to the procedures allows for two potential outcomes: (1) a map can be passed by the legislature with a simple majority, if approved by the commission, or (2) a map can be passed by the legislature with a 60% majority when maps are redrawn by the legislature alone. These changes are regardless of whether the legislature is controlled by one party or split between two or more parties. The overall changes lower the current two-thirds majority requirement when the legislature is under single party control and remove all language and reference to voting based on who appointed the commissioners. It does NOT change how commissioners are appointed and therefore still ensures split control of the IRC between the majority and minority party.  

Implication: The new rule assumes commissioners, who evenly reflect the majority and minority political parties, represent each party’s interests well enough regardless of who appointed them to the IRC. However, the lowered threshold from two thirds to 60% or 50% concerns some critics as this diminishes the voice of the minority party in the redistricting process.

Eliminating the “block on border” rule when drawing districts. The constitution currently requires that any towns or blocks that can fit into a single district, must be assigned to a single district and that counties, towns, and blocks must be placed in the senate district that will make the district’s populations “most nearly equal”. This amendment would allow blocks to be split and remove the equipopulous requirement for counties, towns, and blocks. 

Outcome:  The redistricting requirement change would keep the rule that towns must be assigned to a single district, but remove the rule for blocks. It would additionally remove the rule that a county, town, or block should be placed in the district that will make the senate district populations most equal.

Implication:  The “block on border” rule was instituted to restrain gerrymandering by limiting flexibility in drawing districts for incumbent or partisan advantage. However, the combination of the block on border, town on border, and equipopulous rules prioritizes unified blocks, towns, and counties above unified cities where there is no such requirement (Common Cause of New York. 2020. Susan Lerner Testimony: Evaluating Constitutional Provisions Impacting Redistricting in 2022). The effort to equalize the populations of adjoining districts and avoid splitting towns and blocks can lead to cities being split across districts, disenfranchising those voters. 

Summary

The explanation of each provision is an attempt to provide a thorough and impartial overview of potential benefits and challenges to the constitutional amendment. The League of Women’s Voters, and other critics, have argued against this constitutional amendment because some of the provisions around the IRC and due dates for drawings could significantly reduce the role of the minority party (The Buffalo News. 2020. Democrats Move to Sharply Change How Legislative Boundaries are Drawn). 

However, NKD believes the majority of the provisions will be integral to ensuring the enfranchisement of voters who have typically been excluded or underrepresented as a result of the redistricting process.