The making of 'light' reform: Cuomo promised to end partisan redistricting, but now things are getting fuzzy
ALBANY—LATFOR, the legislative task force charged with drawing new district lines for New York legislators and members of Congress in time for the 2012 elections, will have its last hearing Nov. 2.
That’s where the certainty ends. It’s unclear when LATFOR will release draft maps for Congress, where national population shifts are shrinking the Empire State’s delegation from 29 to 27, how much population variation will be allowed between districts and, in the case of the Senate, how many districts there will be.
It’s also very unclear whether anything done by LATFOR, a much-derided line-drawing instrument jointly controlled by the Senate and Assembly, will matter. Added to the normal machinating, wrangling, gerrymandering and abstract sketching that characterizes this year's iteration of the once-a-decade process is the threat of a veto from Gov. Andrew Cuomo, who has said he will refuse to approve “lines that are not drawn by an independent commission that are partisan.”
In other words it is conceivable, or even probable, if Cuomo is to be taken at his word, that LATFOR's long statewide-hearings tour and behind-the-scenes map-making won't actually count for much in the end. After all, if the lines are drawn by a body under the direct control of the legislature, the process can hardly be said to have been independent, let alone reformed.
Only once, in response to a question from a reporter Syracuse, did Cuomo directly say that LATFOR would by definition fail to meet the "independent" standard he created, leaving many observers to believe that he has deliberately left himself wiggle room in case he has to justify a less clear-cut resolution than the overhaul he promised.
Let’s start with the veto threat. Cuomo most recently addressed it last week, but again, was less direct than he could have been: “My position on redistricting is well known, and there have been no discussions since they were here last in June.”
If Cuomo does pick up his veto pen, redistricting will go the courts. There’s a track record here: courts have been involved in every line-drawing since the 1960s, with a few possible end-games. If the legislative leaders who control each house can live with the court’s lines, those lines can be mildly tweaked and passed. If the legislative leaders decide they can't, then they're forced to compromise for real if they want to have any input whatsoever.
This scenario is unacceptable to the Senate Republicans, who control that house with a tenuous 32-30 majority, and who have benefited for decades from the ability to create Republican-favoring districts downstate.
As opposed to the Assembly Democrats, whose hold on that chamber won't be threatened by any reconfiguration of districts, the Republicans essentially can't compromise on control. They can get rolled on rent control and same-sex marriage and live to fight another day. But redistricting is everything: it can knock them from power, and then they're nothing.
Republicans have made much of the fact that they've been willing and able to work with Cuomo—how helpful they were to him in the last session, boasting first about the budget and later during the July afterglow.
There have been whispers of a deal on redistricting since then, all of which have been denied. But Cuomo’s attempt to neuter LATFOR last February failed, when he proposed a bill to create a new redistricting commission that never moved in the legislature. The governor also missed an opportunity to write it out of the budget process (granted, this would have prompted something close to a riot among lawmakers that could have affected other parts of the spending negotiations) and once LATFOR started holding hearings, an odd stalemate became clear.
LATFOR’s first meeting was in July, in a windowless auditorium in Albany’s Legislative Office Building. The task force has six members, one from each legislative conference, and two staffers, appointed by the Assembly Democrats and Senate Republicans.
Two of these appointees serve as co-chairs. One is Senator Mike Nozzolio, a Republican from Seneca Falls, who is built like a guy who played football at a nerd college and speaks in a quick, anxious, lawyerly way.
The other is Assemblyman John McEneny, who came up in Albany's Democratic machine, and has emerged as the sharpest-tongued defender of the legislature's institutional prerogative on redistricting.
McEneny dispensed patronage under protean Mayor Erastus Corning and, if you're from Albany, he can place your grandmother by either ward or parish. This term completes his second decade in the Assembly, and he’s grown comfortable in the realization that nothing—not an indignant Andrew Cuomo, not his out-of-fashion decision to simultaneously draw a pension and a salary—can undo the lifetime's worth of good will he’s built among the political leadership and people of Albany, who just call him Jack.
So it was natural he threw the first bomb.
"That would be a dumb reason to veto it," he said of Cuomo’s pre-judgment of LATFOR's findings. "I think that would be a very petty approach."
Cuomo was in Rochester and Syracuse that day, signing the tax cap Assembly Democrats agreed, under pressure and with gritted teeth, to pass.
“I understand the assemblyman’s point that he wants to draw his own lines,” the governor responded, when told of McEneny's remarks. “You know, everybody would like to draw their own what-they-call ‘lines’ defining their own district. I want to have lines drawn that represent the people of the state of New York, not a particular assemblyman.”
It was here, after being provoked, that the governor came closest to applying his veto threat to LATFOR. Pushed about whether he thought that entity could plausibly produce "nonpartisan" lines, he said: “No, I don’t. It’s not nonpartisan.”
LATFOR’s other members are Bob Oaks, who, like the Assembly Republicans he represents, is easily and often overlooked, and Senator Martin Dilan, a short, affable colonel in the Brooklyn Democratic Machine.
The Senate Democrats, who stand to pick up seats if the Republicans who have long controlled the Senate no longer have the power to draw electoral boundaries, have become gadflies on the redistricting issue, despite their dubious standing as reformers, after having done nothing to fix the process during their own chaotic two-year stint in the Senate majority.
On Monday, Dilan called for LATFOR to set a schedule for releasing its work and taking public input.
“I expect that the governor would honor his pledge that he would veto an unfair plan,” Dilan said. “There have been 24 senators signed on to a letter that I circulated indicating they would not vote to override it.”
Senator Michael Gianaris, a politically experienced Senate freshman from Astoria who has increasingly become the face of the Democratic conference, said LATFOR should “disband yourself.”
McEneny, to say nothing of the Senate Republicans, doesn't like this sort of language. He called redistricting “a very technical, governmental matter” and seeks specifics behind Cuomo’s good-government rhetoric.
“Reform is one of those subjective words," he said. "Are you going to improve the end product or not?”
McEneny knows Cuomo’s power in the redistricting process is entirely negative. The governor can say no on his own, but he needs buy-in from legislators to actually get a new process in place.
McEneny also knows that time is on LATFOR's side, in a way. A federal judge may soon force New York to move its 2012 primary earlier than September so it complies with a law designed to help overseas military personnel, which means new districts need to be set up long before then. A June primary, favored by Democrats and election commissioners, means lines must be in place by February.
This means it's not clear there's time to implement a new scheme whereby an entity other that LATFOR draws the lines. It becomes, by default, the only game in town, even if it is ultimately subject to Cuomo's veto threat and possible court oversight.
The result may end up being bad for incumbents, in that LATFOR isn't able to do what it has traditionally done, by drawing the lines in such a way as to benefit the parties that control each of the legislative houses. But the process, cherished by McEneny and despised by good-government advocates, will have survived another round of redistricting.
Already, because of that time constraint, the focus of critics of the process seems to be moving from blowing it up to making it more palatable. Citizens Union president Dick Dadey proposed “reform light” last week, in which LATFOR’s work is inherited by a panel of legislative appointees who aren’t legislators. The Assembly and Senate would then promise to create a new panel closer to what Cuomo wants in a constitutional amendment, which would be in place for the next round of redistricting, ten years from now.
Common Cause, another good government group, split from Dadey’s plan and suggested leaving LATFOR but leashing it: currently districts can vary in population size up to 10%, which would get knocked down to 6%, “communities of interest” like Italians in Bay Ridge and Bensonhurst should be respected and kept whole where possible, and the commission would be prohibited from considering incumbent residence and political enrollment.
"The first thing that helps you get to a gerrymandered map is drawing around the residence of the incumbent," said Common Cause Executive Director Susan Lerner. "If you take that out of the equation, a lot of dominoes won't start falling into place based on it. And the Legislature has been very adroit in resisting change—they otherwise ran out the clock."
The idea is much less ambitious than what Cuomo proposed in his legislation. But the governor's spokesman didn't dismiss it, saying, "We appreciate Common Cause's proposal and will review it."
Dadey said negotiations about something like what he proposed are ongoing.
Maybe Cuomo does want an out. Vetoes and judges are chaos, and chaos is so 2009. So old Albany. So not Cuomo. Even as he’s made Albany function this year, he has always cut the deal.
But how can he explain himself away from a promise to veto partisan lines? An independent reconfiguration of district lines around the state could have a transformative effect on state politics, particularly over the long term, by making elections more competitive and, theoretically, making the parties in power more accountable to voters.
At the same time, redistricting is a process issue that's never going to be viscerally important to large numbers of voters in the way that meat-and-potatoes economic and social issues are.
So a politician can spin whatever course he decides on provided he has cover from good-government groups and editorial boards. If he can get Ed Koch not to denounce him (Koch forced a majority of legislators in Albany to sign a pledge to reform redistricting, and well, he just proved to David Weprin he still does shrill as well as anyone) and a few goo-goos to stand next to him at his announcement of whatever compromise he ends up agreeing to, and calls it the Clean Redistricting Act or something, maybe he'll be OK. After all, it worked for him with the highly imperfect ethics bill he passed in June. Perhaps, as far as Cuomo is concerned, the answer to McEneny's question about the meaning of "reform" is that it is what the New York Times editorial board says it is.
So LATFOR soldiers on, praying Cuomo will bite. McEneny said last week he thinks Cuomo is “softening” on the veto threat.
Nozzolio told me, “I don’t speculate on speculation.”
At the same time, the Senate Republicans are attempting to create leverage.
Since January, the G.O.P. has been resisting a 2010 law mandating that LATFOR count prison inmates at their last known addresses, not in their jail cells. Inmates are, generally, from urban downstate areas that elect Democrats but are incarcerated in rural upstate areas that elect Republicans. Some Republican senators, including Betty Little—whose district would lose 11,610 residents—sued, claiming the law is unconstitutional. Nozzolio and the Republicans are taking their sweet time crunching the prisoner move; the case will be in court Oct. 4.
Republicans are also considering the idea of creating a 63rd Senate district. They adamantly say that it is “beyond premature” speculation, but they never deny it. The idea would be to carve out an additional seat somewhere on Long Island or in the Albany suburbs, where they'd be likely to win.
It's outrageous, of course. But the idea is create headaches that they can then, in the name of a greater compromise, make disappear. Or, alternately, they can go along with some sort of "reform" but force a concession on the prisoners or the new seat.
As for what a final deal might look like, we can pick from a menu. Maybe a 63-district Senate and Dadey’s mini-independent commission. Maybe Lerner’s criteria and the prisoners, with LATFOR supervised by a council of Cuomo-affiliated elders.
When I asked Bruce Gyory, an adjunct professor and political consultant who has advised three governors, what he thought would happen, he said, “Anyone who thinks they can see where this process will end up and how has got a lot better vision than I do."