nypirg population deviation

8/4/2019 NYPIRG Population Deviation

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For immediate release: For more information:

October 7, 2011 Bill Mahoney (518) 817-3738

NEW STUDY: STRINGENT POPULATION DEVIATION PROPOSED IN GOVERNOR CUOMOS

REDISTRICTING REFORM BILL IS ACHIEVABLE

ANALYSIS DISPUTES CLAIMS MADE BY MEMBERS OF LATFOR

NYPIRG has long called for reforming the states broken redistricting process. We heartily support

Governor Cuomos proposal to fix the current system by abolishing the hyperpartisan LATFOR to create

an independent commission and making structural changes such as limiting population deviation

between the largest and smallest districts to 2%. Keeping deviation this low will bring New York closer

to the principles of one person, one vote.

Although 184 legislators either promised voters last year that they supported redistricting reform or

have co-sponsored reform legislation in 2011, several have since abandoned that position. Notably,

they claim that requirements in the New York Constitution and the federal Voting Rights Act mean that

map drawers must be able to vary population differences by up to 10%.

A detailed examination of these claims reveals that the 2% maximum population deviation proposed by

Governor Cuomo is not only desirable, but feasible and doable. The only factors that have resulted in

New Yorks district lines having high population deviations appear to be political in nature.

Supporters of the redistricting status quo confuse what the courts say they may do, with what they

can, should and must do to draw lines that are less partisan, unite communities of interest, protect

minority voting rights and equalize the voting power of voters across the state.

The districts drawn in earlier decades were significantly closer in size than those drawn in themost recent redistricting. Average population deviation in the Senate tripled between 1984 and

2002. In 2002, 19 districts differed from the ideal by more than 3%. In 1984 and 1992 zero

districts exceeded the ideal district population by this margin. In the three redistrictings

between 1984 and 2002, for the Assembly the percentage of districts close to the ideal (less

than 1% different) plummeted from 61% to 12% in that 18-year span. These modern precedents

indicate that a deviation close to zero is practicable. Adding tight numerical criterion for

drawing district lines would add a clear objective standard to what has devolved into a decennial

exercise in political creativity.

Legislators who support the status quo have argued that the need to adhere to the civil rightsprotections guaranteed by the federal Voting Rights Act necessarily results in a large number of

districts having wildly divergent populations. A comparison between majority-minority and

white-majority districts shows that there is absolutely no correlation between these protected


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communities of interest and total district population. The factors that have had an impact on

district population totals appear to be driven by partisan enrollment data and a desire to protect

legislative incumbents.

Some legislators have also argued that requirements imposed by the New York StateConstitution prevent them from equalizing districts. In reality, the courts have thrown out most

of these constitutional mandates and have given cartographers freedom from other constraints

to more closely achieve the state and federal constitutional goal of equalizing voting power

under the one person, one vote principles. In 2002, for example, legislators acknowledged

this by splitting up towns in the Assembly and counties in the Senate. We do not believe that

fidelity to the one person, one vote principle attempts to keep municipalities together are

mutually exclusive, and we believe that cartographers can draw lines that honors both of these

criteria.

The partisan concerns that drive the redistricting process, including calculations about districtpopulation size, are illuminated by internal LATFOR memos from 2001. These memos, written

by LATFOR staff to then LATFOR Co-Chair Senator Skelos, detail plans for manipulating

populations in an attempt to retain the majority. In one, they described how increasing the

Senate to 63 members and adding a tenth seat to Long Island would dramatically skew

population totals, but could help protect the nine Republican incumbents. In another, they

discuss protecting incumbents by making two districts population totals a little bit lite.1

Recent redistricting data shows that population discrepancies have been smaller

As legislators and staff have gotten more skilled at using modern mapping technology to protect their

conferences, they have learned how to manipulate population totals to better advance their self-

interest. Over the past three redistricting processes, the average deviation2

from an ideal population

(the size that each district would be if they were all equal, as is required of Congressional districts) has

increased dramatically in each house:

Redistricting Year Senate Assembly

19843

0.74% 1.17%

1992 0.90% 2.14%

2002 2.23% 2.67%

1These memos also highlight why a panel independent of legislators and their proxies must perform the task of

redistricting.2Average deviation means the average absolute distance from an ideal population, which would be the size of

each district if they were all equal. A district 2% larger than the ideal and one 2% smaller would both be 2% away

from the ideal, and would thus have an average deviation of 2%.3

Throughout this study, data for the 1982 redistricting comes from the New York State Statistical Yearbook,

published by the Nelson A. Rockefeller Institute of Government. Totals for 1992 and 2002 were obtained from the

website of the New York State Legislative Task Force on Demographic Research and Reapportionment.


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The total number of Assembly districts with a population deviation close to the ideal defined here as

less than one percentage point from the ideal has plummeted. In 1984, 92 Assembly districts (61.3%)

fell within this range. By 2002, only 18 of them (12%) meet this criterion. At the same time, the number

of districts on the fringes of federal acceptability4

has more than quadrupled. Seventy districts now

have populations falling between 3% and 5% away from the ideal, resulting in a nearly 10% population

deviation from the least to most populous districts in each house.5

Redistricting Year Total Districts Less than

1% from Ideal

Total Districts Less than

3% from Ideal

Total Districts 3% or

More from Ideal

1984 92 (61.33% of total) 135 (90.00%) 15 (10.00%)

1992 46 (30.67%) 101 (67.33%) 49 (32.67%)

2002 18 (12.00%) 80 (53.33%) 70 (46.67%)

This trend is even sharper in the Senate. In 1984 and 1992, approximately 75% of districts had less than

1% deviation from the ideal population. By 2002, the number had plummeted to 18%. Before 2002, nodistricts had more than 3% variance from the ideal; by 2002, 19 districts were drawn with populations

deviating from the ideal by more than 3%.

Redistricting YearTotal Districts Less than 1%

from Ideal

Total Districts Less than

3% from Ideal

Total Districts 3% or

More from Ideal

1984 44 (61 seats total) (72.13%) 61 (100.00%) 0 (0.00%)

1992 47 (61) (77.05%) 61 (100.00%) 0 (0.00%)

2002 11 (62) (17.74%) 41 (66.13%) 19 (30.65%)

Does the Voting Rights Act force some districts to be larger or smaller?

Supporters of the redistricting status quo have claimed that one of the factors tying their hands are the

mandates imposed by the Voting Rights Act. They argue that it is impossible to properly represent

minority populations unless some districts are made substantially smaller than others (so that a

community of interest is not diluted), or in some cases, made substantially larger (so communities of

interest spread throughout a region can be linked in a unified district). This claim does not withstand

scrutiny. First, the charts appearing above illustrate that the 1984 and 1992 lines were drawn with

minimum deviation while complying with the Voting Rights Act. Further, in the 2002 lines, there is no

correlation between district size and demographic makeup.

4Federal courts have established a light, deferential standard of review for state legislative districts with a

population variance of up to 10% (meaning that in most cases, the largest district can only be 5% larger than the

ideal, and the smallest district only 5% smaller). FOOTNOTES 4 AND 5 MAKE THE SAME POINT.5

Ten percent population deviation has been established as the outer limits by federal and state courts before

closer scrutiny is triggered.


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Assembly District Demographic Breakdown

In the Assembly, the population difference between majority-minority and white-majority districts on

Long Island is nonexistent. Both demographic types of districts average 3.66% larger than the ideal. In

New York City, there is a fractional difference: Minority districts are 2.81% smaller than the ideal; those

with a white majority are 2.30% smaller than ideal. When these numbers are examined by borough, thedifference dissipates even more.

Region Demographic Type6

Variance from the

ideal

Number of

Districts

Long Island Majority-Minority +3.66% 2

White-Majority +3.66% 19

New York City Majority-Minority -2.81% 40

White-Majority -2.30% 25

Upstate Majority-Minority +2.66% 3

White-Majority +1.39% 61

The population difference between majority-minority and white-majority districts upstate is slightly

larger than elsewhere. While at first glance, this may appear to result from a desire to follow the Voting

Rights Act, a closer look reveals that these discrepancies go well beyond thresholds for the creation of

majority-minority districts.

Adjusting these districts populations so that they are closer to the ideal would not have an impact on

their demographic breakdown. Assembly District 141, the one with the widest deviation, would have

lost 5,353 voters if it were drawn to reach the statewide average of 126,510. Even if every single one of

these individual voters were black, the percentage of district residents who are black would have been

68%, and 6% of the population would have been members of other minority groups. These numbers

would have placed a district drawn to adhere to the ideal of one person, one vote still well above the

generally accepted 65% threshold that the NAACP has advanced as needed to enhance the likelihood of

minority representation.7 Even if this districts population did need a population total slightly larger

than the ideal, the federal Voting Rights Acts requirements would have allowed mapmakers to draw a

small deviation for this district if doing so was the only way to secure minority voting rights. Permitting

every district in the state to have wild population deviations is not a necessary requirement.

Senate District Demographic Breakdown

In the Senate, upstate and Long Island lines were drawn so that there were no majority-minority

districts. Two districts are split between New York City and Westchester: a majority-minority district,

which is 1.69% larger than ideal, and a white-majority district, which is 1.70% larger.

6Demographic totals were reported by LATFOR using data obtained from the United Census Bureau.

7Mark Monmonier, Bushmanders & Bulllwinkes. (Chicago: The University of Chicago Press, 2001), 34-35.

Monmonier mentions that most political scientist believe that trends in voting patterns over the past three

decades believe that a percentage as high as 65% is no longer necessary to ensure a minority advantage.


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The 24 districts entirely in New York City are very close in population: 18 majority-minority districts are

on average 2.48% larger than the ideal; six white majority districts are 2.09% larger.

However, focusing on this small population difference may obscure the real factors at play. The three

smallest senate districts in New York City were all widely believed to have been drawn in an attempt by

Senate Republicans to win seats in a region dominated by Democrats: SD22 was drawn to help MartinGolden win a seat held by a Democrat, Seymour Lachman; SD24 was designed to reelect Republican

John Marchi; and SD26 was an unsuccessful attempt to help Roy Goodman retain his seat despite a

growing Democratic majority.

When these three districts are removed from the equation, the 18 majority-minority and three

remaining white-majority districts have the exact same population deviation: 2.48% above the ideal.

Clearly, population totals did not vary between majority-white districts and those designed to protect

the voting rights of minority residents. In fact, a case could be made that the disproportionately larger

districts in New York City led to one less majority-minority district than would have otherwise been

created. Thus, population disparities in the Senate arguably served to decrease minority influence.

The State of Constitutional Language on Redistricting

Sections three through five of Article III of the New York State Constitution contain detailed formulas for

drawing Senate and Assembly districts, including requiring districts that are nearly equal as may be in

inhabitants.8 In recent decades, most of the language in these sections has been thrown out by federal

courts. In cases such as WMCA Inc. v. Lomenzo (1964), In Re Orans (1965), and Schneider v. Rockefeller

(1973), maps were found to be in violation of one person, one vote prote ctions. As a result, these

sections of the state Constitution contain discarded provisions, such as a guarantee that sixty of the

states counties have at least one Assemblymember entirely in their district and the absolute bar on

dividing counties among Senate districts.

Language in Article III Section 5 prohibits the division of towns when drawing Assembly districts. In

cases such as Schneider v. Rockefeller (1972) and Wolpoff v. Cuomo (1992), the courts have ruled that

this language may be superceded by close adherence to the one person, one vote principles. In the

Wolpoff case, for example, the Court of Appeals, the states highest court, found that such

[constitutional] violations were inevitable if the Legislature was to comply with Federal constitutional

requirements.9 Since that time, legislators have chosen to use the leeway afforded by the federal

courts deference to state lawmakers when it suits their attempts to gerrymander a map for partisan

purposes.

NYPIRG holds that mapmakers should, when possible, attempt to keep towns united and limit the

splitting of counties. However, we strongly believe that the state can be more faithful to maintaining

one person, one vote while also keeping demographically united communities together.

9The New York State Court of Appeals is the states highest court and the ultimate authority in interpreting the

states laws and constitution.


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As recently as 2002, the Legislature has chosen to take advantage of the leeway offered by the courts

and subordinated the constitutional mandate that towns not be split. In the Assembly, for example, the

town of Ramapo had a population of 108,905 in the 2000 census. This certainly places it well below a

ratio of apportionment and one-half over the average district size (a number that was then 189,765),

which is the minimum size of a town which the constitution requires before it is divided. However,

mapmakers ignored this language, and put pieces of the town of Ramapo in three districts.

The Senate has also split counties when it suits their needs. Niagara County, whose population is

approximately two-thirds of an ideal Senate district, is primarily in Senate District 62, represented by

Senator Maziarz, a Republican incumbent. The City of Niagara Falls is in Senate District 60, which, with

the exception of the 2010 election, has historically been dominated by Democrats. If this city replaced

some of the eastern fringes of district 62, the county boundaries would have been preserved. However,

doing so would have turned a 12,607 voter Republican advantage into a Democratic enrollment

advantage of a few thousand voters.

Examples such as this expose a harsh reality of the redistricting process: Legislators use the Constitution

as a pretext to ignore the principle of one person, one vote. They are, however, willing to circumvent

constitutional language they claim obeisance to if doing so better lets them gerrymander.

The Division of Ramapo:

Assembly District 94 Assembly District 95


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Assembly District 97

Niagara County in the Senate

Senate District 62 Senate District 60

LATFOR memos shed light on mapmakers real thinking

Reformers have long asserted that the real reason for substantial population deviations in legislative

districts is due to cartographical manipulation for political purposes. Two internal LATFOR memos

addressed to Senator Skelos in 2001 appear to support these claims.

The first of these memos, titled Size of the Senate, discussed a number of proposals under

consideration, including the political ramifications of increasing the chambers seats from 61 to 63. This

memo does not focus on how such a change would allow districts to be more compact or contiguous,


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how it would increase the representation of minorities, or how it would allow LATFOR to draw lines that

would do a better job of keeping municipalities in one district. Nearly every factor addressed in the

memo is political in nature.

While the entire memo can be found in the appendix, some highlights warrant mentioning. The memos

author believes that adding a tenth seat to Long Island would be undesirable for Republicans because italmost certainly would not be a republican pickup. While carving out politically undesirable areas

from incumbents districts would help guarantee them reelection, the majority-minority district that

would be created would need to include the house of then incumbent Republican Senator Trunzo.

Finally, the ten Long Island districts populations would be compressed, so drafters would have

precious little room to maneuver elsewhere in the state and not run afoul of the 10% population

variance that triggers increased judicial scrutiny.

The concept of expanding an existing Nassau district into Suffolk is praised for providing better minority

representation in Hempstead, but is harshly criticized because of the political reality that it would

mean the loss of an incumbent. Finally, a third proposal takes care to point out that it is unlikely that

the additional district would be a republican *sic+ pickup.

Two of the three proposals discussed above are additionally criticized because they would lead to a

decrease in the Nassau County Republican Partys influence relative to the county committees in

Queens and Suffolk. This is notable, since then LATFOR Co-Chair Senator Skelos, represents a Nassau

district and is closely tied to the once vaunted Nassau County Republican Party.

The second memo discusses how a set of proposed districts maximizes the Westchester portion

attached to the Bronx in a district seemingly drawn to make Senator Guy Velellas district as

Republican-friendly as possible. Taking advantage of constitutional language, the cartographer was

able to draw the Saland and Leibell districts a bit lite [sic]. This manipulation leaves a large piece ofWestchester that can be added to the Bronx portion of the Velella district.

Both of these memos, drafted by staff for the LATFOR Co-Chair, like the analyses found above, clearly

illustrate that political considerations not minority representation, constitutional language, or compact

districts are uppermost in the minds of the staffwho perform the actual task of drawing districts lines

for their LATFOR bosses. These memos help explain how New York ends up with disproportionate and

topographically irregular districts.

NYPIRG believes that the state can create redistricting maps that follow the Voting Rights Act; create

districts with only minor population deviationswith such variances justified by serving a fundamental

principle, such as the Voting Rights Act; unite communities of interest; substantially respect municipal

boundaries be compact and contiguous; and be done through a transparent and inclusive process.

These principles are laid out in the Governors redistricting program bill (S.3419/A.5388). We believe

there is still time to accomplish these goals for the 2012 elections and lay the groundwork for long-

lasting changes in the way legislative and congressional lines are drawn.


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