Laws & Regulations

Relevant State and Federal Statutory Provisions

The Independent Redistricting Commission was created through an amendment to the New York State Constitution^[1] which went into effect on January 1, 2015^[2]. This amendment made changes to Sections 4 and 5 and added a new Section 5-b to Article III of the New York State Constitution^[3], creating the Commission and setting forth its composition and overall mission.The amendment was approved by the voters of New York State in November 2014.^[4]

Every decade beginning in 2020, a 10-member bipartisan commission shall be established, with eight members appointed by New York's legislative leaders (two appointments per leader), and the remaining two members appointed jointly by the first eight members. The Commission is required to create a plan for the re-drawing of the State legislative and congressional districts, and must take into account various State and federal constitutional and statutory requirements, including:

• Whether the new district lines would result in the prohibited denial or abridgment of racial or language minority voting rights;
• To the extent practicable, districts containing as nearly as may be an equal number of inhabitants;
• Districts must consist of contiguous territory and shall be as compact in form as practicable;
• Districts cannot be drawn to discourage competition, or for the purpose of favoring or disfavoring incumbents; and
• The maintenance of existing districts, pre-existing political subdivisions, including counties, cities, towns, and communities of interest.

Approval of a redistricting plan by the Commission shall require a vote in support by at least seven members, including at least one appointed by each of the legislative leaders^[5]. If no plan is able to garner seven votes prior to the submission deadline, the Commission shall submit the plan that received the most votes to the Legislature, along with a record of the votes taken.

In the process of preparing the new redistricting plan, the Commission shall hold no less than 12 public hearings across the State, with the public allowed to review any draft plans, data, and related information in order to provide input and feedback. The Commission shall submit its redistricting plan to the Legislature on or before January 1, 2022, or as soon as practicable thereafter, but no later than January 15, 2022. Legislative approval of the redistricting plan shall require a vote of at least two-thirds of the members of both the Senate and the Assembly^[6].

If the Legislature fails to approve the plan, or the Governor vetoes the plan and an override by the Legislature fails, the Commission shall be notified and within 15 days of the notification (but no later than February 28, 2022), a second plan shall be submitted to the Legislature for approval. Should the Legislature fail to approve a redistricting plan as submitted by the Commission, the Legislature shall provide amendments deemed necessary and, if approved, submit such legislation to the Governor for action on the measure.

Proposed 2020 Constitutional Amendment

A second amendment to the New York State Constitution^[7] is going before the voters on Election Day 2021. If approved, the following changes would be made to the Constitution itself:

• The number of State Senators would be permanently set at 63;
• In the event that the federal census does not provide sufficient information, the State shall provide the information necessary so incarcerated individuals shall be counted as residing in their last place of residence for the purposes of the drawing of new legislative districts;
• It is explicitly enumerated that all inhabitants of the State are included in the calculation of legislative districts, regardless of immigration status or incarceration.

The amendment would also make a number of changes to the activities of the Independent Redistricting Commission, including:

• For the year 2022, the Commission shall submit its redistricting plan to the Legislature no later than January 1, 2022. Should the plan fail to pass, or a veto fail to be overridden, the second redistricting plan shall be submitted no later than January 15, 2022.
• Beginning in 2031 (and decennially thereafter), the Commission shall submit its redistricting plan to the Legislature on November 1 of that year, and no later than November 15 of that year. Should the plan fail to pass, or a veto fail to be overridden, the second redistricting plan shall be submitted no later than January 1 of the following year.
• Approval of a redistricting plan by the Commission shall require a vote in support by at least seven members, but this vote shall not require a vote in support from each of the legislative leaders' appointments.
• Legislative approval of the redistricting plan shall require a simple majority vote in both the Senate and the Assembly^[8]. Should the Commission fail to approve a plan for submission, the plan that received the most votes will be submitted and shall require a 60% vote from both the Senate and the Assembly.
• Should the Commission fail to vote on a redistricting plan prior to the January 1 deadline, the Legislature is provided with all draft plans and may draft legislation accordingly.
• The appointment of Co-Executive Directors of the Commission shall only require a majority vote by the Commission, and shall not require the appointments to be enrolled members of a particular political party.

Legislative Law Sections 93 and 94

Chapter 17 of the Laws of 2012 (A.9557/S.6736) effectively codified the creation of the Independent Redistricting Commission into New York State statute^[9]. However, the legislation adds a provision which states that any amendments by the Senate or Assembly to a redistricting plan submitted by the Commission shall not affect more than two percent of the population of any district contained in such plan^[10].

Federal Constitutional and Statutory Provisions

The Commission's work, under both current law and the proposed constitutional amendment, continues to be guided by both the United States Constitution and federal law; namely, the Voting Rights Act of 1965 (as amended).

The United States Constitution

The U.S. Constitution^[11], ratified in 1788 and in operation since 1789, is the nation's official charter and the supreme law of the land. It establishes our three branches of government, the principle of separation of powers, and delineates the rights and responsibilities of state governments, both independently and in relation to the federal government. It has been amended twenty-seven times, with many of these amendments directly relating to expanding the right to vote. Constitutional provisions relating to voting include the following:

Article I, Section 2: States Determine Qualifications to Vote

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

Article I, Section 4: States Conduct Congressional Elections

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by law make or alter such Regulations, except as to the Places of choosing Senators^[12].

Article II, Section 1: States Conduct Presidential Elections

Each State shall appoint, in such Manner as the Legislature thereof may direct, a number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

and later^[13]:

The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

The 14^th Amendment (1868): Citizenship for Former Slaves; Equal Protection Clause

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age^[14], and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

The 15th Amendment (1870): Eliminating Racial Barriers

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

The 19th Amendment (1920): Eliminating Sexual Barriers

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

The 24th Amendment (1964): Eliminating Poll Taxes^[15]

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

The 26th Amendment (1971): Voting Age Lowered to Eighteen

The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

The Voting Rights Act of 1965

The Voting Rights Act of 1965^[16] (as currently amended) prohibits racial discrimination in voting. The enacted law, as amended and held within Title 52 of the United States Code, is designed to enforce the voting rights guaranteed by the 14^th and 15^th Amendments, but broadly regulates elections across the nation.

Beyond the general provisions providing that "race, color, or previous condition of servitude" shall not impact a citizen's right to vote^[17], the law also contains specific provisions barring:

• Intimidation, threats, or coercion that interferes with a person's right to vote^[18];
• Literacy tests and other similar devices as prerequisites for voting^[19]; and
• The use of poll taxes^[20] (see footnote 14).

The law also provides some requirements to provide assistance to voters whose primary language is one other than English^[21], as well as blind, disabled, and illiterate voters^[22].

The Voting Rights Act in Redistricting

Section 2 of the Voting Rights Act states that a Court may find a violation of the Act if "[B]ased on the totality of circumstances, it is shown that a political process leading to nomination or election in the State or political subdivision are not equally open to participation by members of … [a racial, color, or language minority class] . . . in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice."^[23]

In the context of redistricting, the Supreme Court has found that a redistricting plan violates the Voting Rights Act if a group "do[es] not have an equal opportunity to participate in the political processes and to elect candidates of their choice."^[24]The Supreme Court has identified three factors that, if met, demonstrate such a violation;

1. The racial or language minority group "is sufficiently numerous and compact to form a majority in a single-member district."
2. The minority group is "politically cohesive," meaning its members tend to vote similarly.
3. The "majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority's preferred candidate."^[25]