Ballot Measure Must Lose ‘Independent’ Description

ALBANY, N.Y. (CN) - A New York judge ordered the adjective "independent" dropped from the November ballot on a constitutional amendment to establish a new state process for redistricting every 10 years.

Proposal 1, which goes before voters Nov. 4, would amend New York's constitution to make a 10-member commission responsible for drawing state legislative and congressional district lines beginning in 2020.

The amendment, as written by the state Board of Elections, uses the phrase "independent commission," a characterization challenged last month in the state Supreme Court in Albany County.

Four registered voters sued the board, calling the language "materially misleading" and asked the court to bar its use.

On Wednesday, state Supreme Court Justice Patrick McGrath agreed.

"The commission cannot be described as 'independent' when eight of 10 members are the handpicked appointees of the legislative leaders and the two additional members are essentially political appointees by proxy," he wrote.

The amendment dates to the end of the 2012 legislative session and a deal known colloquially as the "Big Ugly," according to the plaintiffs' complaint. The pact horse-traded approval of the redistricting commission for passage of other favored legislation, the plaintiffs say.

Approval in 2012 was important since two consecutive sessions of the Legislature must pass a constitutional amendment before it can go to voters. Subsequent passage in the 2013 session put the amendment on the ballot this fall.

The redistricting commission is seen as an answer to the every-decade problem of gerrymandering - drawing district lines to favor incumbents.

As envisioned, the minority and majority conferences in the Senate and the Assembly would choose eight members of the commission; the eight then would jointly choose the final two members. The panel would recommend changes to district lines to the Legislature and the governor, who both would have give approval.

McGrath's ruling points to the complicated voting mechanisms outlined for the commission.

If both houses are controlled by one party, seven of 10 members have to support a redistricting plan, including four named to the panel by the majority and minority leaders of the Senate and Assembly, he noted. If control of the Legislature is split between the two major parties, the seven votes have to include two members named by the leader of each house.

And once a redistricting plan is sent to the Legislature, he said, the margin for approval is determined by party rule: a majority vote if the Senate and Assembly are led by different parties and a two-thirds supermajority if the same party controls both houses.

"The court is not aware of any other law in New York State that has ever required a commission or any other legislative body's vote approval to be dependent on the political make-up of the Legislature," McGrath wrote.

Election law requires that ballot language be "clear and coherent" and use words "with common and everyday meanings," according to the judge.

"The 'common and everyday meaning' of the word 'independent' implies a commission that has the freedom to make decisions, which are not subject to the influence of another," McGrath wrote. "... [T]his court finds that the term 'independent' is misleading because creation of the commission, its procedures and its ultimate outcome are all 'subject to control by others.'"

McGrath, who heard oral arguments Sept. 12, rejected the plaintiffs' other request for a language change to the amendment, in the description of what happens if the Legislature rejects a redistricting plan.

The plaintiffs wanted a phrase that identified the Legislature as the "default redistricting body" if the commission's plan is not approved.

"The court does not find anything incomplete, inaccurate or even misleading about the text in its current form, which in no uncertain terms informs the voter that the commission's plan is subject to legislative enactment," McGrath wrote.

Kathleen O'Keefe of the Board of Elections argued for the state and the individual elections commissioners named in the complaint.

A board spokesman said Wednesday there would be no appeal of McGrath's decision. "We will follow the court order and change the wording of the abstract and the ballot," said John Conklin, director of public information.

Neil Steiner of Dechert LLP in Manhattan represented the plaintiffs.

The four - Howard Leib, Eric Walker, Eleanor Moretta and Susan Lerner - brought the complaint as individuals. Lerner is executive director of Common Cause New York, a good-government group lobbying against the amendment. Leib is an attorney in Ithaca; Walker and Moretta are community activists in Buffalo and Brooklyn, respectively.

The good-government group Citizens Union of the City of New York filed an amicus curiae brief in support of the amendment.

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