As I have been writing up what the 2010 elections may mean for congressional redistricting (http://www.publicmapping.org/redistricting-forecast), I realized a potential tie in the NY state Senate may set up a re-redistricting scenario for New York. Here is how it could play out...

 

- The typical bipartisan compromise on state legislative redistricting is for each chamber to draw their own districts. For this to occur in the NY Senate, Democrats and Republicans will have to compromise. Maybe they can, but that compromise would likely be less favorable to the Republicans than the typical Republican gerrymanders over the past three decades that have helped them retain control of the chamber. So, either the maps go to court, where a "fair" map more reflects Democratic strength in the state or the bipartisan compromise puts more pressure on Senate Republicans in 2012, which should be a better year for Democrats.

- If Democrats expect to control the state Senate and House after 2012, they could refuse to compromise with the Republicans on a congressional map and the map will go to court.

- In 2013, if the court map is not as favorable to them as they may like, Democrats could then do a congressional redistricting -- there is no prohibition on congressional timing. If a court draws the state Senate map and Democrats gain control of the chamber in 2012, they could also use their one-bite-at-the-apple chance to do a re-redistricting of the state Senate, too.

 

An interesting game of chicken may unfold in New York. Democrats may have greater leverage since they may be better off if they do not compromise than Republicans if they do not.  But neither side will particularly want a court to draw the maps since it puts their incumbents at greater risk.

 

Justin Levitt and I discuss these state prohibitions on re-redistricting in:

 

Justin Levitt and Michael P. McDonald. 2007. "Taking the 'Re' out of Redistricting: State Constitutional Provisions on Redistricting Timing."  Georgetown Law Review 95(4): 1247-86. (Also available on SSRN).

 

Here is the relevant state constitution language on New York state legislative redistricting timing:

 

Article III §4. Except as herein otherwise provided, the federal census taken in the year nineteen hundred thirty and each federal census taken decennially thereafter shall be controlling as to the number of inhabitants in the state or any part thereof for the purposes of the apportionment of members of assembly and readjustment or alteration of senate and assembly districts next occurring, in so far as such census and the tabulation thereof purport to give the information necessary therefor. The legislature, by law, shall provide for the making and tabulation by state authorities of an enumeration of the inhabitants of the entire state to be used for such purposes, instead of a federal census, if the taking of a federal census in any tenth year from the year nineteen hundred thirty be omitted or if the federal census fails to show the number of aliens or Indians not taxed. If a federal census, though giving the requisite information as to the state at large, fails to give the information as to any civil or territorial divisions which is required to be known for such purposes, the legislature, by law, shall provide for such an enumeration of the inhabitants of such parts of the state only as may be necessary, which shall supersede in part the federal census and be used in connection therewith for such purposes. The legislature, by law, may provide in its discretion for an enumeration by state authorities of the inhabitants of the state, to be used for such purposes, in place of a federal census, when the return of a decennial federal census is delayed so that it is not available at the beginning of the regular session of the legislature in the second year after the year nineteen hundred thirty or after any tenth year therefrom, or if an apportionment of members of assembly and readjustment or alteration of senate districts is not made at or before such a session. At the regular session in the year nineteen hundred thirty-two, and at the first regular session after the year nineteen hundred forty and after each tenth year therefrom the senate districts shall be readjusted or altered, but if, in any decade, counting from and including that which begins with the year nineteen hundred thirty-one, such a readjustment or alteration is not made at the time above prescribed, it shall be made at a subsequent session occurring not later than the sixth year of such decade, meaning not later than nineteen hundred thirty-six, nineteen hundred forty-six, nineteen hundred fifty-six, and so on; provided, however, that if such districts shall have been readjusted or altered by law in either of the years nineteen hundred thirty or nineteen hundred thirty-one, they shall remain unaltered until the first regular session after the year nineteen hundred forty. Such districts shall be so readjusted or altered that each senate district shall contain as nearly as may be an equal number of inhabitants, excluding aliens, and be in as compact form as practicable, and shall remain unaltered until the first year of the next decade as above defined, and shall at all times consist of contiguous territory, and no county shall be divided in the formation of a senate district except to make two or more senate districts wholly in such county. No town, except a town having more than a full ratio of apportionment, and no block in a city inclosed by streets or public ways, shall be divided in the formation of senate districts; nor shall any district contain a greater excess in population over an adjoining district in the same county, than the population of a town or block therein adjoining such district. Counties, towns or blocks which, from their location, may be included in either of two districts, shall be so placed as to make said districts most nearly equal in number of inhabitants, excluding aliens.

 

============

Dr. Michael P. McDonald

Associate Professor, George Mason University

Non-Resident Senior Fellow, Brookings Institution

 

                             Mailing address:

(o) 703-993-4191             George Mason University

(f) 703-993-1399             Dept. of Public and International Affairs

mmcdon@gmu.edu               4400 University Drive - 3F4

http://elections.gmu.edu     Fairfax, VA 22030-4444