Proposition One and redistricting: A case for direct democracy

Posted 8/21/12

Good government groups disagree about whether Proposition One, which will appear on the ballot in New York State on Election Day, is a good idea. One side is in favor of the constitutional amendment …

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Proposition One and redistricting: A case for direct democracy

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Good government groups disagree about whether Proposition One, which will appear on the ballot in New York State on Election Day, is a good idea. One side is in favor of the constitutional amendment because creating a commission to engage in the redistricting process, which occurs every 10 years, could, they argue, take some of the politics out of the process. They also advocate that the amendment, along with a related statute that was passed in advance of the vote, includes other safeguards that will make the process fairer.

The other side argues that the commission would not be independent because the plan must be approved by the state legislature. Further, if the commission’s plan is rejected twice, responsibility for drawing new district lines falls back to the legislature.

According to Common Cause NY (CCNY), “Prop One sets up a redistricting process that is worse than the already lousy process we have now. If Prop One passes, political control of redistricting would be mandatory for the first time.” The site also says the amendment mandates that the commission work from the gerrymandered districts already in existence. CCNY is pushing for a “truly independent” commission.

At least a couple of states do have truly independent redistricting commissions, but they did not get them because of the politicians in those states; they got them instead because of voter initiatives, which are not currently allowed in New York State.

Arizona is one example of a state with a truly independent redistricting commission, and elected officials there have gone to court twice to try to get rid of it. In 2000, in a voter-initiated effort called Proposition 106, voters approved a constitutional amendment to create an independent redistricting commission.

Two years later, Democrats in the state challenged the commission in court, but the commission and its work were upheld by a federal court. In the wake of the redistricting prompted by the census in 2010, Republicans took the matter to court and argued that the United States Constitution required that the state legislatures in all states redraw the lines.

The language in the Constitution reads, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

In a two-to-one decision handed down in February of this year by the U.S. District Court for Arizona, the judge ruled that the state’s redistricting commission does not violate the Constitution. On October 2, the U.S. Supreme Court agreed to hear an appeal in the case, and that should be settled by the end of June 2015.

It seems at least possible that had the New York Proposition One come about because of a voter initiative, rather than a legislative initiative, the question being considered by voters this year would have had the support of all good government groups, because the commission in question would have likely been truly independent.

The website ballotpedia.org calls a voter-initiated constitutional amendment a form of “direct democracy,” and it says there are seven “generally accepted” forms of direct democracy, including these four: the initiated state statute, the initiated constitutional amendment, the veto referendum (sometimes called the citizen referendum or the statute referendum) and statewide recall.

Some states—such as Arizona and California, which allow six out of the seven forms—offer a high degree of direct democracy possibilities. Other states—such as New York and Pennsylvania, which offer only one option, the legislatively-referred constitutional amendment procedure—offer little in the way of direct democracy.

In New York State, in order for voter initiatives to become a reality, a state constitutional amendment would be required, and elected officials are not likely to give powers to the voters, which now only lawmakers possess.

So for now, state residents are left with a constitutional amendment generated by the legislature, which has given us Proposition One. On the one hand, it might take a bit of the politics out of the process of redistricting. On the other hand, as Susan Lerner, the executive director of CCNY, pointed out, it would also lock into the state’s constitution, probably for decades to come, that the process is ultimately to be determined by elected officials and the two political parties rather than by a truly independent body.

The next redistricting does not take place until 2022. There is time to reject this constitutional amendment, and find a better fix than the one offered up by the politicians.

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