[EL] New York redistricting provisions

[Jeff Wice]

Perhaps a clarification to Marty Lederman's post from yesterday:
Prof. Lederman may have been somewhat mislead by the peculiar way in which the NY Constitution was amended in 1969
(effective Jan. 1, 1970) to add § 5-a to art. III. He properly says that he is not sure that his tentative
reading is correct, and those of us familiar with New York's actual practice in
applying the constitutional rules may help.
The "forgoing provisions" referenced in § 5-a are all of art. III, § § 4 and 5. In other words, § § 4 and 5 are to be read as though the phrase "excluding aliens" has been
struck wherever it appears. The legislative record shows that to have been the
intention; and in the last five decennial redistrictings, New York has used
total population as the apportionment basis for all purposes, including the
calculation of the various "ratio[s] of apportionment."
The amendment approved in 2014 was merely consistent with § 5-a, and changed nothing in this regard. The subtraction and reallocation of
prisoners pursuant to Legislative Law - not Election Law - § 83-m(13) is not considered to be a departure from this constitutional
principle. (The constitutionality of § 83-m(13) was upheld in litigation.)

The sections of the State Law (the name of a chapter of the New York statutes)
cited by Prof. Lederman are parts of the redistricting statutes enacted in 2012
pursuant to NY Const. art. III, § § 4 and 5. Unlike Leg. Law § 83-m(13), the passages cited should not be read as prescribing a practice to be
followed, but as a statement of how the Legislature has applied the
constitutional rules. (This observation applies, of course, only to State Law §§
120 and 123. The following sections of the State Law, §§ 121 and 124
respectively, define the Assembly and Senate districts, and do prescribe the
practice to be followed in conducting elections).
I hope this is helpful. Jeff Wice
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