Ed Koch Was Right We Need a Truly Independent Reapportionment Commission

By Bruce N. Gyory | May 26, 2022

Ed Koch was right all along that New York State needs a truly independent non-partisan reapportionment process to draw the lines for congressional and state legislative races every ten years. Folks should remember that Koch showed bold leadership back in 2010 demanding that candidates for statewide office and the State Legislature sign a pledge calling for an Independent Redistricting Commission to take hold in time for the 2012 elections.

The Daily News editorial board engaged a principled barrage of editorials backing “the Koch Pledge” as it was called back in 2010. Heading into 2012, Newsday’s editorial Board led the way working with Common Cause to show how independent redistricting might work, presenting reapportionment maps that would not engage in partisan or race based gerrymandering, instead following the precepts of keeping communities of interest in tact, rather than using the cracking and packing techniques which here the handmaidens of partisan gerrymandering. I was persuaded by former Mayor Koch and both of these editorial boards that an independent redistricting process was the way to go, so that the voters picked their elected representatives rather than the reverse.

But the Legislature balked on a bipartisan basis, refusing to enact a truly independent redistricting process, particularly the then Republican majority in the Senate, which felt they would lose any chance of holding their narrow Senate majority, when roughly only a quarter of the state’s voters were Republican. Governor Cuomo, despite having taken the Koch pledge to enact a fully independent redistricting commission, bowed to the Legislature and the result was a the Rube Goldberg process for drawing the lines , later locked into the State’s Constitution in a 2014 referendum that led to the chaos we are now living through.

I believe that in this year’s process the so called Independent Redistricting Commission, the Legislature and the courts, both the trial court in Steuben County and the Court of Appeals have all let down the cause of fair and principled redistricting. I know many of my past allies in this battle have taken the side of the courts and presumed that the Special Master’s lines are principled and proper, I disagree.

I think this entire process which appears to have settled upon endorsing the Special Master’s work product, flunks the test of Plato’s Allegory of the Cave. Plato’s Allegory of the Cave warned against seeing shadows in the cave as the true source of light. Plato suggested that a better path lay in peering behind the rocks casting those shadows, to get at the true source of the light. I believe that if we peer behind some of those shadows surrounding this state’s reapportionment chaos, we will see an accumulation of serious mistakes have been made on all sides that have not yet been cured.

I ask you to read this piece with an open mind to see if you wind up agreeing with me that going forward we need to return to Koch’s model. Namely let’s scrap the current clumsy and easily manipulated process and amend the Constitution to create a truly independent redistricting process, vulnerable neither to a Democratic majority manipulating the Legislature or a Republican minority forum shopping and manipulating underinformed courts to bring us in terms of reapportionment, a modern version of John C. Calhoun’s discredited theory of a Concurrent Majority (undermining the aspirations not only for communities of color now just as Calhoun intended, but many other communities as well).

Let’s peek behind just four of these rocks casting flawed shadows which led to the current reapportionment chaos.

First, under the process Governor Cuomo took the lead in negotiating, there was an Independent Redistricting Commission (IRC) that would be charged with drawing the lines for Congress and State Legislature with every new Census. The Republicans demanded and got a partisan veto over that process, that was maintained despite their political meltdown in the State Senate races from 2018 and 2020 into a minority of 20 out of 63 Senate seats.

Under this process if the IRC failed to reach bipartisan agreement on submitting a reapportionment plan to the Legislature they would have to seek to reach agreement a second time and if the Legislature failed to approve that plan in an up or down vote, with no amendments then the Legislature could amend that plan, but would have to follow the criteria under the state Constitution for proper reapportionment.  This process did not anticipate that the IRC would not reach any agreement and therefore not submit a second set of maps. Yet this is what happened this year.

The majority opinion in the Court of Appeals found this a glaring defect (even as there was no clear mechanism for forcing the IRC to act) which they used as a time bar preventing a legitimate opportunity for legislative action to cure the constitutional defects, leaving the reapportionment pen in the hands of one person.

Meanwhile, one large conflict of interest was ignored by the Court of Appeals . The lead Republican on the IRC was former State Senator Jack Martins. A fine gentleman who was a smart hard working legislator. The problem was that Martins turned around an announced that he was running for his old State Senate seat on LI against his successor Anna Kaplan a Democrat. This was a clear conflict of intertest. By blocking any agreement on the submission of lines, as the lead Republican on the IRC, Martins gave the Republican objectors an open path to put the ultimate decisions on reapportionment in the hands of single Republican judge appointing a Special Master . The folks drawing the lines should not be able to turn around and run for the lines they drew or in this case blocked. Yet the Court of Appeals cast a blind eye to this clear conflict regarding Martins and the inaction of the IRC.

The second rock that cast a flawed shadow was the Democratically controlled Legislature engaging in what almost everyone found to be partisan gerrymandering. I am not here to excuse or rebut that, although I think it was exaggerated in light of what occurred in states like Florida and Texas favoring the Republicans. But New York voters had decided via referendum to outlaw partisan gerrymandering.

The Democrats’ legislative majorities probably felt that if the lines were overturned they would be granted an opportunity by the courts to perfect any flaws as had happened in the past. They lost that gamble in the Court of Appeals due to a combination of factors. The majority opinion in the Court of Appeals took particular umbrage in footnote 3 of their opinion to the Senate’s reply brief, in the Appellate Division, which stated “There was no reason for the Democratic super-majorities in both houses of the legislature to seek ‘input or involvement’ from the Republican minorities” regarding the development of these legislative maps.

The third rock that cast a flawed shadow was the Republican objectors’ forum shopping by taking this case to Steuben County. The end result had two coincidental consequences that fail to pass the test of common sense or fairness. One, the trial court judge bought hook line and sinker the algorithm prepared by Sean Trende a consultant for the Republican objectors as the basis for a finding of partisan gerrymandering. Yet in the Court of Appeals , the dissent by Judge Rowan Wilson shred Trende’s algorithm of any credibility, except in the eyes of Judge McAllister and the Special Master he appointed, Jonathan Cervas.

Let me synopsize down Judge Rowan’s assessment of Trende’s mistakes, although I will not do his incisive reasoning justice. The Constitution has 8 comprehensive factors to guide the process of drawing fair lines. These factors range from promoting contiguity of communities and political subdivisions to compactness and maintaining the cores of existing districts and of course neither favoring or discriminating based upon race, ethnicity or partisanship as well as neither favoring nor disfavoring incumbents. Judge Wilson admonished that because Trende’s algorithm focused on partisanship rather than the other mandated standards factors that it had the potential to ignore the full range of Constitutional criteria.

Meanwhile, that is precisely what I would argue the Special Master’s lines accomplished. The Special Master was seemingly following the Judge who appointed him, in being enamored of Trende’s analysis. There is a huge problem, with that approach, for when you unilaterally put partisan competitiveness to the head of class above the other 7 factors provided for in the state’s Constitution, with only a quarter of the state’s electorate is Republican that will lead to an unmistakable albeit obscured pro-Republican reapportionment plan.

Let’s focus on the congressional lines to show you what I mean. Is it just a coincidence that so many incumbent Democrats were packed into the same districts against each other (by my count 8: Nadler, both Maloney’s, Jones, Bowman, Meng, Jeffries and Clarke), but no Republican incumbents were placed in the same districts? Is it a coincidence that the East side and West Side of Manhattan were joined after being the main demarcation line for over a century of reapportionment, or that Co-op City in the Bronx the largest single common housing complex in the state, which is now heavily African- American was split into three congressional districts? That is a few too many coincidences to presume a benign impact for my taste.

I also wonder if Congressman Jeffries’ assessment will hold water.  Namely, that there were multiple transgressions in terms of fairness in the impact of these congressional lines on Black, Hispanic and Asian communities under the lines prepared by the special Master. Will Jeffries assessment be borne out over the course of the decade these lines will be in effect?

In fairness to the Special Master, I do not think he acted in bad faith or with a partisan motive. I do, however, think that no one person can know all one needs to know to draw fair maps with 8 unweighted Constitutional criteria to guide mapmaking in reapportionment. Especially someone who is not from New York. But the secret defect is that given how few Republicans there are in this state if one unilaterally puts partisan competitiveness at the head of the line to the detriment of the Constitution’s full list of criteria, you are likely to end up with an obscured pro-Republican partisan gerrymander, which does not excuse any overreach on that score by the Democratic Legislature.

Judge McAllister kind of revealed himself as holding a partisan mindset, in an early ruling that both time and the Court of Appeals swept away, when he suggested that if the Legislature would try to perfect their mistakes in drawing the lines the Senate would have to pass it with Republican votes. Frederick Douglass must have winced in the political heavens at seeing Calhoun’s notion of a concurrent majority ratified by the minority would carry the day, if this judge had his way.

Which brings us to the largest rock of all, the majority opinion of the Court of Appeals. I have no dispute with the majority finding an impermissible partisan gerrymander, but I do have some questions regarding the remedy chosen and the harshness in the majority opinion towards the opinions of the dissenting judges. The language dismissing the opinions and reasoning of Judges Rivera and Wilson was rather striking.

To a lesser extent so was the condescension shown toward Judge Troutman’s prudent dissenting suggestions on remedy. The Chief Judge could have put together a fuller and firmer majority of 6-1 if not 7-0 if the majority opinion had fashioned a remedy that gave the Legislature clear guidance on what it had to do to craft maps aligned with the full range of constitutional standards. But by leaving the final lines to one Republican judge enamored of and by Trende’s flawed algorithm, guiding a single Special Master, are we surprised that an implicitly pro-Republican gerrymander, especially on the congressional lines, has replaced a seemingly explicit partisan gerrymander by the Democrats.

Multiple wrongs do not serve the public interest or the original Koch pledge. Presuming that we should punish the Legislature while incorrectly assuming that the Special Master is a veritable Moses coming down from Mount Sinai with holy tablets, only denies New Yorkers a fair and standards driven reapportionment.

I posit for your consideration that the majority of the Court of Appeals may have made the right judgment but chose the wrong remedy, and in so doing rewarded both a recalcitrant IRC and judicial forum shopping by the Republican objectors, which left many congressional districts cracked and packed in terms of communities of interest to the benefit of Republicans, by placing so many Democratic incumbents in the same districts, in seeming contradiction of enumerated standards under our state Constitution.

I have to tip my cap to the Republicans who worked on this challenge , for they outmaneuvered the Democrats at every turn in this legal drama. But I think when you look behind the shadows, fair congressional lines have not been drawn consistent with the full range of the state’s Constitutional standards.

All of which leaves me thinking Ed Koch was right, and therefore let’s enact his vision for a truly Independent Redistricting Commission before the next lines are drawn for 2032. And if anyone can prove racial and ethnic based flaws in the lines drawn by this Special Master, who did not know what no one person can know, let’s cure these lines before then. The State’s Constitution should be followed without any shadows obscuring an impermissible gerrymandering, whether intentional or inadvertent.

Bruce N. Gyory is a Democratic strategist, who used to teach a course in national and state voting trends as an adjunct professor of political science at the University at Albany SUNY.