Originally Published: April 6, 2011
Campaign unveils legal memo by respected international law firm exposing false assertions
Cuomo bills gain overwhelming majority support in Assembly from both Democratic and Republican conferences with 89 cosponsors
ReShapeNY, a campaign to achieve redistricting reform organized by Citizens Union and other good government groups New York Public Interest Research Group and League of Women Voters New York State, released a detailed legal memo from a distinguished law firm today showing that, despite claims to the contrary, the current redistricting reform bills, including Governor Cuomo’s, are constitutional. ReShapeNY also revealed record majority support from both Democrats and Republicans for action on redistricting reform within the Assembly.
The legal memo written pro-bono by the prestigious international law firm Weil, Gotshal and Manges LLP concluded that the Cuomo redistricting reform bill (S. 3419/A.5388) is constitutional, noting that the bill is consistent with the legislature’s ability to delegate its powers in a circumscribed manner and does not violate the separation of powers between different branches of government. While the Senate Majority has raised legal questions about the constitutionality of the bill after committing to pass nearly identical redistricting reform during the 2010 campaign season, members of the Assembly are overwhelmingly backing the reform legislation introduced by Governor Cuomo. Eighty-nine members of the Assembly, including 60 percent of all Democratic Assembly members and 57 percent of all Republican Assembly members back the Cuomo bill.
“With the unprecedented and growing support for redistricting reform from both parties in the Assembly and the endorsement of the distinguished international law firm Weil, Gotshal and Manges that the Cuomo bill is constitutional, it is clear that redistricting reform should move forward,” said Dick Dadey, Executive Director of Citizens Union. “The Assembly has indicated its strong support for action in ending partisan gerrymandering, and with the legal hurdles removed, the Senate should also act to end the political manipulation of drawing district boundaries and instead implement a fair and impartial process in time for the 2012 elections.”
The Weil, Gotshal, and Manges memo provide a point-by-point refutation of legal arguments made by the Senate majority that the bill is unconstitutional. The lynchpin of the firm’s argument is the ability of the legislature to create administrative entities to help with establishing policy by fulfilling broader statutes passed by the legislature. The legislature’s authority in this regard is evident in the Cuomo bill, which authorizes an independent redistricting commission to propose district boundaries and directs the legislature to consider or vote on them. In passing the bill, the legislature would specify the criteria and the process for drawing district lines, which the independent commission would adhere to in drawing the maps. Thus the independent commission would be completing the details of the broader parameters established in statute by the legislature. The delegation of authority to the independent commission is circumscribed because ultimately the legislature votes to approve the maps drawn by the commission or, should it reject those, create its own.
The degree to which the legislature delegates power envisioned in the Cuomo bill is commonly done at both the federal level, as was the case with the Military Base Commission, and at the state level, where recent examples in New York State include the Judicial Pay Commission (which made recommendations on judicial salary increases to the legislature that barring changes by the legislature, went into effect) and the Commission on Healthcare Facilities in the 21st Century (which provided a plan for hospital closures to the Assembly and Senate that unless rejected, became law).
The Weil memo further explains that gubernatorial appointees to the nominating pool for the independent redistricting commission do not violate the limited ability of the legislature to delegate its powers, as it is common for the governor to make appointments to bodies with investigative and advisory functions that make recommendations to the legislature. Furthermore, legislative leaders in redistricting reform legislation ultimately choose the apportionment commission members that actually draw district lines. The governor only appoints members who choose a pool of candidates from which the legislative leaders finally select from.
The criteria imposed by the Cuomo bill on the legislature in drawing district lines, should it choose to reject the plans submitted by an independent commission, are also not a violation of the separation of powers doctrine, as the legislature is not granting its authority to do so to any other branch of government. Instead, the legislature is simply adhering to criteria that it passed into law, and may change that criteria as it wishes consistent with federal law and the state constitution.
ReShapeNY’s data on support for redistricting reform in the Assembly indicated, in addition to majority support from both parties for the Cuomo bill, that nearly two-thirds or 98 members support either the Cuomo or Jeffries bill, the major reform bills in that house. Sixty-eight members have co-sponsored both bills in a strong statement of the need for redistricting reform. Eight of 11 members in the Assembly Governmental Operations committee where the Cuomo bill now resides have co-sponsored the bill (including one still in processing), while the Chair RoAnn Destito also supports the legislation.
The ReShapeNY coalition is led by Citizens Union, the League of Women Voters New York State, and New York Public Interest Research Group (NYPIRG) with support from over 30 organizations including steering committee members the Association for a Better New York (ABNY), Bedford Mosholu Community Association, Common Cause/NY, Citizen Action of New York, Citizens Committee for NYC, Citizens for a Better New York, National Organization for Women (NOW) NYC, Natural Resources Defense Council (NRDC), New York Civic, New York Uprising, Public Employees Federation, Regional Plan Association, Queens Civic Congress, Reinvent Albany, and the Women’s City Club of New York (WCC). For more information about ReShapeNY or redistricting, visit our website at www.reshapeny.org.