Monday, February 27, 2012

The Real Potential in Albany's Mishap of the Moment

By Associate Professor Justin Levitt

The lines of our election districts lie at the core of our democracy. They decide whose voices are represented, and to what degree. New York's districting process rarely serves as a model of civic virtue. But now, there's an unusual chance for change.

In Albany, legislators choose their voters more than the other way around. It is a Twilight Zone process; incumbents purport "To Serve the Public," and cycle after cycle, we discover it's a cookbook that they're using.

Where legislators are in charge of drawing their own lines, there is a natural tendency to choose private and partisan self-interest over the public interest. If you had the capacity to ensure your own job security, no matter how well you performed ... wouldn't you do the same?

Both Democrats and Republicans have used this process to their advantage, and to the detriment of voters of every stripe, in New York no less than elsewhere. The current process is bogged down as incumbents bicker over who can grab more for themselves. Governor Cuomo has boldly tried to break the cycle, by threatening a veto of the legislature's latest, something predecessors have been unwilling to do.

The veto threat is right. But maybe, just maybe, not the veto itself. A veto would likely throw matters definitively to the courts, which is a slow and expensive route -- and involves a responsibility the courts don't want. Just look at the ongoing mess in Texas.

A veto is also a one-time answer. It is essentially a spanking -- it stings, but it's temporary, and will not ultimately stop the bad behavior when Cuomo is no longer governor.

The meaningful veto threat, however, provides abundant leverage. If Cuomo used that leverage to have the courts draw maps now, it would consign us to repeat the same nonsense in 10 years. Instead, he could look to the future.

The governor should use his leverage to drive an epic compromise fixing the broken system once and for all. One step back, but two steps forward. The step back: allow legislators with a short-term focus on the fall to preserve the status quo for one last gasp of a map. The two steps forward: force those same politicians -- who all think that 10 years from now, they will either be retired or in the White House -- to give up their stranglehold on the redistricting process for the future. It would be a generational trade with a very long trail of dividends.

With this bargain, Cuomo could go a long way toward breaking the cycle of self-interest that prompted his veto threat in the first place. He would have to get the terms right. The deal would have to create an independent body, reflecting the diversity of the state, to have first crack at the lines. It would have to provide transparency and meaningful public input. It would have to ensure protection for minority rights and recognition of the real communities in which New Yorkers live, with a structure designed for bipartisan buy-in. It would have to prevent districts drawn to punish or reward particular parties or politicians, in a way that courts can enforce. And to really safeguard the future, it would have to lock these changes into the state constitution.

These are not pipe dreams. In other states, citizens have driven similar change through popular ballot initiatives. New York forbids such things. So it is only the governor's resolve, and the legislators' increasing unease about the election to come, that creates the possibility for real reform. A modest retreat on this year's lines would be a bargain price for a permanent process change that will long outlive the current officeholders.

Professor Justin Levitt is an election law expert at Loyola Law School, Los Angeles, where he teaches Law of the Political Process and Constitutional Law. He runs All About Redistricting, a comprehensive online guide to drawing electoral lines, at

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