While New York Sleeps

By Henry J. Stern
February 23, 2005

We recently recounted two sad stories about ethics in Albany. One was about the use of housekeeping accounts to avoid the law prohibiting political contributions by corporations, including underwriters of state bond issues. The other dealt with substantial sums being paid by competing businesses to lobbyists who are closely connected (in one case, a son) to the objects of their persuasion.

These items did not elicit wide public response from our readers, because most of you already have a good idea of the low moral standards of some public and party officials. The prevailing feeling is, "Yes, it's true, but what can anyone do about it?" Look, if you disagree and think that Albany is functioning well, please let us know. We do not want to err by assuming your relative silence is acquiescence to our judgment.

Many people believe that their own state senator or Assembly member is a decent sort, relatively hard-working, and concerned with issues. We know that some members have gone stale during their protracted tenures; some regularly yield to their libido or their thirst, and a very small number see their seats as a license to cheat, steal, or bully people they run into on the streets of New York or Albany. Is that bad? Take any 212 people in New York and you'll probably have a number of people with issues. By the way, 212 does not refer to the Manhattan area code, as Pequod, an intern who works for us, thought, but to the number of state legislators — 150 in the Assembly, 62 in the Senate.

We do not blame our own legislators for the dominant/submissive relationships of Albany, or for the paralysis in the legislative process. After all, if our guys rose up, they would have their heads handed to them. And, if they squawked too loudly, some people could get hurt, like the Little Leaguers who play in our parks and need help to fix the fields, and our local charities that need program support from the state. Member items mean a lot, even when they are vetoed by a stingy governor.

How can we escape the chains that bind us and our legislators, while the gray sea of corruption, favoritism, and allegiance to special interests swarms and swells around us? Let us first ask: What are these chains? There are four principal factors that hold the majority of New York State's 18 million people in a frustrating condition of involuntary political servitude. They are:

(1) Gerrymandering - Unfair, unreasonable, and distended boundaries of legislative districts, designed to assure incumbent protection and one-party domination.

(2) New York State's Election Law - One of the most burdensome in the country, its onerous requirements for ballot access and the disqualification of candidates for technicalities enhance the power of political machines, who are the only ones who fully understand the intricate structure of the law.

(3) Subservience of elected officials to political leaders, whether they are county bosses at home, or the speaker and majority leader in Albany. Most legislators bargain away their rights to dissent for member items in their districts, lulus for themselves, the privilege of placing their people on the public payroll, and the opportunity to express their views for consideration by the leadership.

(4) The powerful influence of lobbyists, from business and labor, particularly public employee unions, whose regular contributions and campaign assistance gain them the privilege of being heard and heeded. They are part and parcel of what is called the permanent government.

As you probably know, gerrymandering is the tailoring of the boundaries of political districts to meet the needs of particular individuals (usually incumbents) or political parties (normally the majority party in the body that does the districting). In recent years, districts have been routinely gerrymandered to produce specific ethnic outcomes, so that the district is most likely to elect a person of whichever race is desired.

Years ago, district lines were drawn to reduce or eliminate representation of racial minorities, as by splitting a minority neighborhood into two or three districts, or by providing for the election of legislators-at-large. The courts held such racial districting invalid for denying minorities equal protection of the laws, as in the case of Gomillion v. Lightfoot (1960).

With the Supreme Court decision in Baker v. Carr (1962), the passage of the Voting Rights Act by Congress in 1965, and subsequent amendments to the law, practices changed sharply. Under the new law, and supporting federal court decisions, districts were to be gerrymandered to maximize the number of elected minority officials. Approval by the Civil Rights Division of the Department of Justice was required in some areas before lines could be certified and elections held.

Whereas in the past, minority voters had been split up by state officials to deny them representation, the same tactic was now applied to white voters. It was roughly determined that a district had to be 60% minority to elect a minority legislator. Districting became a matter of carving out the maximum number of districts that were three-fifths minority. Once that was done, the leftover population would be split up among whatever districts were left. County and borough lines were crossed freely to achieve these results.

Politically, this was the strategy of an alliance between conservative Republicans and minority Democrats. The intent of the Republicans and the effect of the plan was to reduce substantially the number of elected white Democrats. The scheme has succeeded in reshaping Congress, creating a strong white Republican majority, and a Democratic minority that need not appeal across racial lines.

The original gerrymander was drawn in Massachusetts. When it was observed that the district looked like a salamander, the response was said to be, "No, a gerrymander," a reference to Elbridge Gerry, governor of Massachusetts in 1810 and 1811 and vice president of America in 1812. It was in Gerry's fertile mind that the scheme was reportedly hatched.

Another unwholesome result of gerrymandering is it makes it more difficult for insurgents to challenge incumbents. A candidate known favorably in one part of the district may be unknown in other parts that are distant. Districts should be mapped by impartial commissions, as Governor Schwarzenegger has proposed.

To have the legislators draw the lines, as is currently the practice in New York, gives the legislative leaders even more power; if they don't like you, they can simply abolish your district, or put you in with another incumbent. This even applies to members of Congress, since their districts are also drawn in Albany. No prudent member of Congress will take on the speaker or the Senate majority leader.

Only the courts can rescue the states from the artificial barriers created by self-serving legislators who make their own continuance in office with minimal intrusion by elections a far higher priority than meaningful districts with communities of interest for them to represent. Yet our state courts have been consistently feeble in these matters, hanging back in the face of flagrant injustice.

We observe that state courts have appeared willing, almost eager, to intervene in other areas of public policy normally under legislative authority, such as how much money should be appropriated for various agencies, and precisely what level of social services should be provided for the homeless.

Under activist Chief Judge Judith S. Kaye, the venerable Court of Appeals has blazed new trails of jurisprudence, telling the executive how to do its job by leaving a court-appointed monitor in charge of a city agency for decades, and, more recently by taking on the state Legislature in the Campaign for Fiscal Equity school-spending case, arrogating to itself the basic power to determine spending, and therefore require taxation, to support a major state function, public education.

The pretense that the state with the second highest education budget per capita in America spends so little on education that it violates the state constitution and therefore requires judicial intervention is absurd on its face, no matter how many foundation-funded lawyers and sleepy retired judges can be assembled to bang their tin cups in insatiable desire.

Yet when dealing with a pre-eminent and permanent injustice, deprivation of representation for citizens of the state through flagrant gerrymandering — a condition that the members of the Legislature will never remedy because they themselves are the beneficiaries of the injustice — the judicial tiger lies on his paws and falls asleep. Only when the public rises, like a great beast, will it be able to overcome these obstacles to democracy. Sadly, no leaders on these issues have emerged in New York State.

This article appears on the editorial page of today's New York Sun.

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