After 53 of New York’s 62 senators were elected having campaigned as “Heroes of Reform” on redistricting, the state budget and ethics, Governor Cuomo and state lawmakers reached a deal in 2012 to pass a constitutional amendment that introduced a public process for state and congressional mapmaking led by an independent commission and forbade political gerrymandering.

Of course, any map the Independent Redistricting Commission (IRC) may draft would need to be codified into statute by the Legislature. But a law, passed along with the proposed amendment, limited lawmakers to changing only two percent of residents within a district. Along with the amendment, this would “provide strict restrictions on the [L]egislature’s changes to the commission’s plans” that should frustrate any attempt by the Legislature to gerrymander.

New Yorkers enshrined the IRC and anti-gerrymandering rules in the state Constitution in a 2014 referendum, but the text left out the two-percent rule. This week, they got a thorough lesson on the difference between a constitutional amendment and a law.

After a lengthy court battle (which saw candidates run in court-drawn districts in 2022), the IRC sent a new map to state lawmakers—who promptly rejected it and set to work making the sort of changes meant to be prevented by the “strict restrictions” of the two percent rule. Incumbents in both parties saw the partisan advantages in their districts boosted.

How? Adopting new lines today, lawmakers included the following language:

“This act shall be liberally construed to effectuate the purposes thereof and to apportion and district this state in compliance with constitutional and statutory requirements and shall supersede any inconsistent provision of law including but not limited to section 3 of chapter 17 of the laws of 2012.”

Translation: if something is prohibited by law, and not the Constitution, another law can overrule that prohibition.

The 2012 dealmakers, Dean Skelos, Sheldon Silver, and Cuomo, are gone from office. Whether any of them intended to be bound by the law for this round of redistricting is an open question. Yet the two percent population limit being kept out of the Constitution, which lawmakers can’t easily supersede, indicates the dealmakers did not intend the limitation to be permanent.

Cuomo and his counterparts in the legislature also assured New Yorkers that courts would keep gerrymandering in check. He was right in 2022.

Dave Wasserman of Cook Political Report calls the New York map a mild-to-moderate gerrymander, which means another court challenge could happen. Time will tell.

Meanwhile, any voter who believed in 2014 that a legislature in 2024 would abide by its stated rules got played. The lesson for New Yorkers the next time lawmakers offer to amend their Constitution is to get the whole deal in writing.

About the Author

Cam Macdonald

Cameron J. “Cam” Macdonald is an Adjunct Fellow with the Empire Center and Executive Director and General Counsel for the Government Justice Center.

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