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State's highest court considers the constitutionality of new Senate seat


By Adam Shanks
Staff writer

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Judges of the Court of Appeals, the state’s highest court, heard arguments last Thursday over the legitimacy of a Republican-backed addition of a 63rd Senate Seat. The Senate Democrats who sued over the extra seat, say Republicans improperly mixed methodologies to come to their conclusion. Photo by Sean Ewart.
April 30, 2012
The state's highest court heard arguments last Thursday between Senate Democrats and Republicans over the constitutionality of a Republican-backed addition of a 63rd Senate seat as a part of this year's redistricting legislation. The new lines passed earlier this year.

Senate Democrats contend that the Senate Republicans, in manipulating the constitutional formula for counting the necessary number of seats in the Senate, broke and combined constitutionally accepted methods for political purposes.

Democrats believe Republicans want an additional seat because it would help secure their fragile majority in the chamber. The additional Senate district was situated in upstate New York - typically a Republican stronghold - which mathematically speaking is already overrepresented in the New York State Senate.

However, the placement of the district, and possible political implications of the 63rd were deemed irrelevant by the judges. The case heard last week will only confront the constitutionality of applied district-counting methodology.

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Michael Carvin, the lawyer representing Senate Majority Leader Dean Skelos, R-Rockville Centre, conceded that ultimately, the reasons behind a chosen method can be political, as long as they fall within constitutional bounds.

Senate Republicans contend the additional district was mandated by the state Constitution, in which redistricting was last adjusted in 1894.

A state Supreme Court judge had already ruled against the petitioners earlier this month, although he noted that the addition of the 63rd seat was "disturbing."

Ultimately it appears the case hinges on whether or not different methodologies are being applied differently than in the redistricting process of 2002 - and whether or not consistency actually matters at all.

Judge Robert Smith questioned the role of the court in the whole process, asking at what point "do you say 'you're both idiots, figure it out yourselves?'"

The contention comes over the methods Republican lawyer Carvin used to propose the additional 63rd seat. The 1894 formulas are based on a New York with 50 counties, not the 62 the state has today.

Therefore, for the purposes of redistricting, two sets of counties are combined. Traditionally, these have been Nassau and Queens counties and Suffolk and Richmond counties.

Once counties are grouped together constitutional formulas determine the necessary number of Senate seats, based on population.

"The process involves determining the ratio of the populations of the state's most populous counties to one-fiftieth of the state's total population, dropping any remainder, and comparing that number to the number of state Senate seats in those counties in 1894," explains Supreme Court Justice Richard Braun.

That remainder is then rounded down. However, when it comes to the county pairs, there are two court-accepted methods - rounding down the remainder for each county, then adding them together to see if any new seats are required, or adding remainders of the counties together then rounding down. The difference between the two methods can have significant results, such as in this year, 62, 63 or even 64 senate seats.

Braun wrote in his decision that Senate Republicans were indeed using two different methods to determine the necessary number of Senate seats as required by the state Constitution, as Democrats had contended. However, he wrote that the additional seat, which was passed by the Legislature weeks ago, was not a blatant enough violation of the constitution to mandate the new districts be overturned.

Republicans claim the same method was applied to Richmond and Suffolk counties in 2012 as in 2002. Democrats claim that since whether it was method A or method B wouldn't have affected the total number of seats in 2002, Republicans never specified which method they were using.

Democratic lawyer Eric Hecker argued that consistency is justiciable and must be upheld by the courts.

Carvin disagreed, saying the Constitution doesn't require consistency. He even went so far as to argue the Constitution mandates the two sets of counties be treated differently, in part because a Queens and Nassau combination was unforeseeable when legislators amended the state Constitution in 1894.

Since Queens and Nassau were one county in 1894, they were treated as such. Richmond and Suffolk counties were separate that year, but combined for redistricting. Therefore, Carvin reasons, different methodologies should apply to the different units.

The court's decision could have broad implications. With primary races already well underway, and a general election in November, a court-ordered redrawing of the lines could throw the election cycle into chaos.

If the court does throw out the lines, it would set a clear precedent that only one counting method be used consistently when determining the necessary number of Senate seats.

Gov. Andrew Cuomo and Assembly Speaker Sheldon Silver, D-Lower East Side, are both technically defendants in the case, as they had a role in the passage of the legislation including a 63rd seat. Cuomo said last Thursday during a cabinet meeting, however, that his lawyers weren't working on it.

Cuomo, who said if the 63rd seat is overturned, "it would complicate things," won't take a stance because he doesn't want to "politicize the issue."

Elaine Reich, a lawyer for Silver, noted in her brief remarks there was a separability clause in the redistricting legislation. She asked that if the court does throw out the Senate lines the Assembly districts be spared.

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    "Wholly within" in 20 locations in NYS Const means "nesting"
    May 01, 2012 | 02:10 PM

    The term of art "wholly within" is used twenty (20) times in the State Constitution as it is interrelated to redistricting as applies to local government sovereign home rule in the configuration of representation in the State legislature at: Article 1 Section 7 (d); Article 2 Section 4; 2 times in Article 3 in section 4 and section 5; Article 6 Section 5(a); as for Local Finances effected by the State Legislature at Article 8 Section 1, Section 3 for indebtedness, Section 4 (h) on limitation of indebtedness, Section 9 when debt incurring power of certain counties shall cease, Section 11 (b) as to Taxes for certain expenditures to be excluded from tax limitations; Article 9 Section l(a)(h)(1), 3(d)(l )(4); Article 11 Section 3; Article 13
    Section 8; Article 18 Section 8…

    Who among you can argue that the absolute relationship between the Senate and Assembly seats set up on the Article 3 provisions is not an in individual voter and home rule sovereign right to have an expectation of consistency and control over their representative be paramount. WE are a State of Laws not men and that needs to be readjusted!! They represent us we do n ot serve them!

    Chris Strunk
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