Leading Voice on Redistricting Senate Size
THE LAW: NEW YORK'S CONSTITUTION AND THE STATE SENATE
Statement from Senate Democratic Conference Spokesman Mike Murphy,
"What the Senate Republicans are doing is illegal and no reading of the State Constitution would allow a new seat to be created. We are witnessing the depths that the Republicans will go to hold onto power. They are playing a dangerous game with the State Constitution and the redistricting process. Unfortunately, the Senate GOP has made it clear that they care more about protecting their partisan interests than the people of New York State."
THE LAW AND THE NUMBER OF NEW YORK STATE SENATE DISTRICTS
· The number of Senate districts is determined by a rule, dating from 1894, in Article III, §4, of the NY State Constitution. The rule applies to counties that contain more than 6% of the total state population.
o Whenever the population of such a county rises to a larger proportion of the statewide total than in 1894 – counting by increments of 1/50th (2%) of the state total, after dropping the remainders – then a district is added to the total of 50 districts that were created in 1894.
o The Court of Appeals has ruled that some pairs of counties must be combined in making the comparison with 1894. Nassau was separated from Queens in 1899, and Bronx County was created out of parts of New York and Westchester in 1914.
o The counties that have grown enough to matter are Bronx, Nassau, Queens, Richmond, Suffolk, and Westchester. (A decline in a county’s share of the state population, as compared with 1894, has no effect on the number of districts.)
· There have been two different methods of combining the counties for this comparison.
o It happens that, given the state and county population totals of the 2010 census, both formulas would produce 62 districts in 2012. Any number other than 62 would mean a departure from all constitutional precedents (and also a repudiation of the legal opinion produced by Republican Counsel Mr. Carvin in 2002).
o It would obviously be a repeat of the partisan manipulation of 2002, with new political calculations for the new decade.
o One method was used in the reapportionment law of 1972, upheld by the Court of Appeals in Schneider v. Rockefeller (1972), and used again without question in 1982 and 1992. That formula produced 60 districts in 1972 (up from the previous 58), and 61 districts in 1982 and 1992. If the same formula had been applied in 2002, there would again have been 61 districts.
o The Senate Majority decided, however, that their political calculations would be best served by creating 62 districts in 2002. The Senate Majority’s outside counsel, Mr. Michael Carvin, then produced an opinion justifying the new formula. It is still available (as of September 15, 2011) at the LATFOR website.
This is a constitutional rule. There is no constitutional basis for choosing another number of districts because it seems convenient, for whatever reason. The ambiguity of the formula, arising from changes in county boundaries, and the past exploitation of that ambiguity to serve partisan purposes, provide no license to ignore the New York State Constitution.
 The appendix applies the two versions of the formula to the census counts from the 1970’s to the present.
An internal Senate Majority memorandum, dated July 20, 2001, and divulged during the document discovery phase of Rodriguez v. Pataki (2004), states: “We have had numerous discussions regarding the possibility of the Senate increasing in size to 63. While the ultimate decision will be made with political numbers for proposed districts at each size in hand, I believe that the decision basically comes down to the raw census numbers.” There is no discussion of what the NYS Constitution might require.