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NYS Assembly Standing Committee On Governmental Operations, Task Force On Demographic Research and Reapportionment

Testimony Of Arthur Eisenberg On Behalf Of The New York Civil Liberties Union Presented To The New York State Assembly Standing Committee On Governmental Operations, Assembly Legislative Task Force On Demographic Research And Reapportionment

My name is Arthur Eisenberg. I am the Legal Director of the New York Civil Liberties Union (NYCLU) on whose behalf I submit this testimony today. It is the position of the NYCLU that the practice of political gerrymandering violates important constitutional norms obligating government to remain neutral in administering elections.

In Williams v. Rhodes, 393 U.S. 23 (1968), the Supreme Court reviewed Ohio’s ballot access statutes, which had rendered it extraordinarily difficult for any political party other than the Republican and Democratic parties to appear on the ballot. In defense of its laws, the State of Ohio maintained that its statutory provisions advanced the governmental interest of promoting the two-party system. The Court, however, rejected this defense. It noted that “the Ohio system does not merely favor a ‘two-party system’; it favors two particular parties – the Republicans and the Democrats – and in effect tends to give them a complete monopoly on the right to have people vote for or against them. Competition in ideas and governmental policies is at the core of our electoral process and of First Amendment freedoms.” Id. at 32. Thus, the Court concluded that Ohio’s attempt to protect the political status quo was impermissible and unjustified. The common practice of political gerrymandering involves a similar effort to protect the political status quo.

We generally understand that our system of free expression depends upon a marketplace of ideas, an environment in which policies and programs complete for acceptance by the American people. Fundamental to that understanding is the notion that a fair ideological competition is most successfully assured if we require that, in regulating the political or ideological activities of its citizens, government remain a neutral referee. It cannot favor one speechmaker over another. Nor can it favor one ideological association or political party over others. This command of governmental neutrality represents a prominent constitutional principle under both the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.

In a real sense, our electoral system is simply a more formalized and structured marketplace of expression. It is an organized competition of ideas presented by opposing candidates and political parties. Accordingly, for this electoral competition to operate fairly government must remain neutral. It cannot intentionally structure the rules so as to fix the result or foreordain the outcome. It cannot enact laws designed to petrify the political process or skew the fairness of the electoral competition. In the purposeful attempt to skew electoral outcomes, political gerrymandering conflicts with a fundamental obligation of governmental neutrality – an obligation that has its source in the First and Fourteenth Amendments.

Notwithstanding this strong constitutional obligation of neutrality, the Supreme Court has expressed institutional reservations about entering the “political ticket” of political gerrymandering. In doing so, it has repeatedly recognized that constitutional principles are at stake whenever the state seeks to manipulate electoral outcomes. Nevertheless, to date, it has not found a judicially manageable solution to the problem of political gerrymanders. We must acknowledge, therefore, that – at least in the context of political gerrymandering – the neutrality principle remains in the terminology of a noted legal scholar, an “under-enforced constitutional norm.” See, Sager “Fair Measure: The Legal Status of Underenforced Constitutional Norms” 91 Harv. L. Rev. 1212 (1978). See also, Fallon, “Judicially Manageable Standards and Constitutional Meaning,” 119 Harv. L. Rev. 1275 (2006). But, its under-enforcement by the judiciary does not eliminate its importance as a principle of democratic governance. Indeed, such under-enforcement by the judiciary simply transfers the burden to our legislative bodies to effectuate and implement the terms of that constitutional commitment.

In my testimony today, I will first and foremost set forth the constitutional precedent that supports a commitment to neutrality in the administration of elections. I will then briefly discuss the concept of “under-enforced constitutional norms” and the legislative responsibility to acknowledge and implement under-enforced norms when the judiciary chooses not to do so.

The three legislative proposals under consideration, at this hearing, rest upon an implicit recognition in the “neutrality principle” as they seek to solve the problem of political gerrymandering. They do so, appropriately, by proposing the creation of commissions that are intended to function and to develop fair districting plans and do so without inappropriate influence by the political branches of government. All of the proposals are to be commended in their recognition of the need to for independence from the political process. Yet, each of them fails fully and adequately to address the problem. At this juncture, therefore, the NYCLU does not endorse one legislative proposal over the others. Rather, we offer a variety of additional suggested mechanisms for promoting the independence of the commissions called upon to draw the legislative districts. This will be the final matter in my testimony this morning.


When a state enacts laws that define the structure and operation of its political institutions it must do so with “the aim of providing a just framework within which diverse political groups in our society may fairly compete….” Hunter v. Erickson, 393 U.S. 385, 393 (1969) (Justice Harlan concurring). This obligation of governmental fairness and neutrality originates, as a matter of judicial precedent, in a line of cases involving state regulation of First Amendment access to public facilities. This requirement of neutrality extends however, with compelling logic and precedent whenever a state is regulating its electoral process.

A. General Neutrality Principles

Basic to our system of free expression is the proposition that government must remain neutral with respect to the ideological or associational activity of its citizens. This Court has repeatedly insisted that “above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Department v. Mosley, 408 U.S. 92, 95 (1972).

The First Amendment’s prohibition against governmental favoritism regarding the content of speech extends to a prohibition against the state favoring or disfavoring certain citizens because of their political affiliation or associations. This basic theme has been consistently articulated by the Court. In NAACP v. Button, 371 U.S. 415, 445 (1963), the Court observed:

“The Constitution protects expression and association without regard to the race, creed or political or religious affiliation of the members of the group which invokes its shield, or to the truth, popularity or social utility of the ideas and beliefs which are offered.”

This theme, commonly described as the “neutrality” principle, has been most frequently invoked where the state has either created a public forum or where a governmental entity is supervising First Amendment access to a public facility. For example, when a municipality regulates speech-making access to the streets, sidewalks or parks it cannot make judgments about who may or may not speak based upon what might be said or the associational affiliation of the speaker. Niemotko v. Maryland, 340 U.S. 268 (1950); Fowler v. Rhode Island, 345 U.S. 67 (1953). In this regard, this proposition was advanced most forcefully in Police Department v. Mosley, supra. Mosley invalidated a Chicago ordinance which selectively granted the right to picket based upon the content of the speech and the labor union affiliation of the speakers. The Supreme Court declared

“[U]nder the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views its finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an ‘equality of status in the field of ideas,’ and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say.” Mosley, 408 U.S. at 96.

As the preceding discussion from the Mosley opinion suggests, there may be some disagreement as to whether the neutrality principle derives its doctrinal source from the First Amendment or the Equal Protection Clause. (See, e.g., Justice Frankfurter’s concurring opinion in Fowler v. Rhode Island, 345 U.S. at 70). But whatever the source, the “neutrality” principle is firmly established within our constitutional jurisprudence.

The constitutional neutrality principle applies in contexts far beyond the mere regulation of access to parks and sidewalks. See, e.g., Elrod v. Burns, 427 U.S. 347 (1976) (the practice of patronage dismissals is unconstitutional under the First and Fourteenth Amendments); Widmar v. Vincent, 454 U.S. 263 (1981) (university violated neutrality principles in refusing to permit a religious group to meet on campus in a classroom when other groups were granted access to the campus); Epperson v. Arkansas, 393 U.S. 97, 104 (1968) (“The First Amendment mandates governmental neutrality between religion and religion and between religion and non-religion.”); Board of Education v. Pico, 457 U.S. 853, 870-71, 907 (at least six justices of the Supreme Court agreed that “[i]f a Democratic school board, motivated by party affiliation, ordered the removal of all books written by or in favor of Republicans, few would doubt that the order violated the constitutional rights of the students”).

To say that, in each of the above-described situations, there existed a constitutionally mandated obligation of neutrality is not to say that the government is, in all instances, disabled from adopting ideological positions. Clearly there are many situations where government communicates ideas and policy positions. It does so “through the manipulation of symbols and images, ceremonies, written words, laws, speeches, meetings, debates, and in a myriad of other ways.” Yudof, When Government Speaks 5 (1983). And clearly, there are instances in which the policy statements of government correspond almost precisely with ideological positions adopted by a particular political group or party. Thus, the neutrality principle does not apply when government is itself enacting or articulating substantive policy.

But, when the state is regulating or administering the essential mechanisms of democratic self-government, the principle of government neutrality applies with compelling vigor. The neutrality principle is the normative doctrine that guarantees democratic self-government through a marketplace of ideas. This marketplace concept, described by Professor Thomas Emerson, holds that, “[t]hrough the acquisition of new knowledge, the toleration of new ideas, the testing of opinion in open competition, the discipline of rethinking its assumptions, a society will be better able to reach common decisions that will meet the needs and aspirations of its members.” Emerson, Toward a General Theory of the First Amendment, (Vintage, 1967) at 8. So understood, government neutrality is seen as a necessary condition to permit the ideological competition to proceed fairly and without inhibition.

B. The Neutrality Principle in the Regulation of Electoral Processes.

The neutrality principle acquires a special force in cases involving the regulation of our electoral system. In a very real sense, our electoral system is simply a more formalized and structured expressive enterprise. It is an organized competition of ideas presented by opposing candidates and political parties. As such, the obligation of governmental neutrality takes on heightened importance. For unless government remains neutral in fashioning and administering the rules of the contest, the electoral competition cannot operate fairly.

If a state were to rig voting machines so that they could only register the votes cast for Democratic candidates, no one would doubt that the state was not playing fairly, in a clear violation of neutrality principles. Although acts of favoritism by the state will rarely, if ever, be that transparent, courts have carefully scrutinized and where appropriate invalidated, legislative enactments obviously designed to favor particular political parties or groups.

As noted, in Williams v. Rhodes, 393 U.S. 23 (1968), the Supreme Court examined Ohio’s ballot access statutes, and noted that “the Ohio laws … give the two established parties a decided advantage over any new parties struggling for existence and thus place substantially unequal burdens upon both the right to vote and the right to associate.” Id. at 31. Upon finding that the Ohio statutes were designed merely to favor the Republican and Democratic parties, the Court invalidated Ohio’s electoral scheme.

In Carrington v. Rash, 380 U.S. 89 (1965), the Court struck down a Texas constitutional provision that prohibited members of the armed forces who moved to Texas during their military duty from voting in that state so long as they remained in the military service. The state argued that the provision was necessary to prevent military personnel from “taking over” civilian communities near military bases. The Supreme Court stated that, “‘Fencing out’ from the franchise a sector of the population because of the way they vote” is constitutionally impermissible. Id. at 94.

In First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), the Court invalidated a statute that prohibited banks and business corporations from engaging in certain campaign expenditures in connection with referendum elections. The Court regarded this attempt to prevent corporations from participating in the campaigns surrounding referendum elections as “an impermissible legislative prohibition of [electoral] speech based on the identity of the interests that spokesman may represent in public debate over controversial issues….” Id. at 784.

In Greenberg v. Bolger, 497 F. Supp. 756 (E.D.N.Y. 1980), a federal district court struck down the provision of the Postal Service Appropriation Act of 1980 which conferred reduced third-class mailing rates upon the Democratic and Republican parties but excluded other political parties competing for federal office in that presidential election year. According to the district court: “Congressional debate demonstrates – what is clear from the provision itself – that the 1980 limitation was adopted to reserve the special rate for the two dominant political parties while denying it to others.” Id. at 765. The Greenberg Court held such favoritism to be invidiously discriminatory and constitutionally impermissible.

Purposeful invidious discrimination has also been found where districting plans were employed “to minimize or cancel out the voting strength of racial or political elements of the voting population.” Fortson v. Dorsey, 379 U.S. 433 (1965). Such purposeful discrimination has been identified in a long-line of vote dilution cases stretching from Gomillion v. Lightfoot, 364 U.S. 339 (1960) to Rogers v. Lodge, 458 U.S. 613 (1982). See also, White v. Regester, 412 U.S. 755 (1973); Abate v. Mundt, 403 U.S. 182, 184 n.2 (1971).

These vote dilution and reapportionment cases implicitly recognize that when a state regulates its election machinery and when it defines electoral boundaries, it must do so in a neutral and even-handed way. See, e.g., Reynolds v. Sims, 377 U.S. 533, 565-566 (1964). In this regard, Gaffney v. Cummings, 412 U.S. 735 (1973), is particularly instructive.

At issue in Gaffney was whether Connecticut violated the Fourteenth Amendment by taking partisan politics into account when it fashioned its reapportionment plan. Specifically, a redistricting plan, drawn up by a bipartisan commission of four Republicans and four Democrats, “adopted and followed a policy of ‘political fairness’, which aimed at a rough scheme of proportional representation of the two major political parties.” Id. at 738. Recognizing that there might be some instances where a legislature might invidiously attempt “to minimize or eliminate the political strength of a group or party” (Id. at 754), the Court found no such impermissible purpose at work in Gaffney. On the contrary, the Court found the Connecticut legislature to have been motivated by principles of fairness and neutrality. Accordingly, the statute was upheld. 1

In Karcher v. Daggett, 462 U.S. 725 (1983), the Court invalidated New Jersey’s congressional districting plan. The Court’s opinion rested upon the conclusion that the New Jersey plan was mathematically neither equal nor the product of a good-faith effort to achieve population equality among districts. Again, the Court implicitly found that those engaged in designing the districts had not fulfilled their constitutional obligation to act in a fair and even-handed manner. In a concurring opinion, Justice Stevens reached this conclusion explicitly. Justice Stevens observed:

“The Equal Protection Clause requires every State to govern impartially. When a State adopts rules governing its election machinery or defining electoral boundaries, those rules must serve the interests of the entire community …. If they serve no purpose other than to favor one segment – whether racial, ethnic, religious, economic, or political – that may occupy a position of strength at a particular point in time, or to disadvantage a politically weak segment of the community, they violate the constitutional guarantee of equal protection.” Id. 77 L.Ed.2d at 153.

In sum, there is a common thread that runs through this Court’s voting rights cases. It holds that government has a general obligation to act in a fair and neutral manner when it regulates the electoral system. To be sure, states will be given wide latitude in their discharge of this obligation. But when a state exercises its regulatory authority over the electoral system for the clear purpose of fencing some voters out of the political process or skewing electoral outcomes such purposeful discrimination will be found violative of important constitutional norms.


In Davis v. Bandemar, 478 U.S. 109 (1985); the Supreme Court held that a constitutional challenge to a political gerrymander could present a justiciable case or controversy but the Court could not agree upon the substantive standard to be applied in evaluating when or whether a constitutional violation occurred. And, as Justice Kennedy recently observed: “That disagreement persists.” League of United Latin American Citizens v. Perry, 126 S.Ct. 2594, 2607 (2006).

In Vieth v. Jubelirer, 541 U.S. 267 (2004), a plurality on the court would have held such challenge to raise “non-justiciable political questions.” But a majority of the Court declined to adopt this position. And last term, in League of United Latin American Citizens v. Perry, 126 S.Ct. 2594 (2006), Justice Kennedy, writing for the Court, specifically announced that the Court was not revisiting the issue of “justiciability”; and that it was not, therefore, reaching any ultimate conclusion as to whether challenges to political gerrymandering would be regarded, in all instances, as “non-justiciable,” even as it concluded that the parties challenging Texas’ political gerrymander had not offered manageable and reliable measures of fairness for determining whether the partisan gerrymandering before the Court was unconstitutional. Id.

As matters now stand, a majority of the Court recognizes the potential application of constitutional “neutrality” principles to the circumstance of political gerrymandering. Even Justice Scalia’s plurality opinion in Vieth acknowledged that “an excessive injection of politics [into the design of electoral districts] is unlawful” under our Constitution. Vieth, 124 S.Ct. 1785. But the Court has not yet adequately defined the scope of a judicially enforceable constitutional doctrine to address this issue. The “neutrality” principle, thus, remains an under-enforced constitutional norm. As Professor Lawrence Sager has observed, there are circumstances where the federal judiciary “declines to uphold constitutionally based claims,” not because the claim is unsupported by constitutional text or precedent logically extended but because of “institutional” concerns about judicial competence or judicial manageability or principles of federalism. In these circumstances, constitutional norms remain “valid to their full conceptual limits” and are enforceable, indeed, should be enforced to their full limits by the legislative branches of government. Sager, 91 Harv. L.Rev. at 1212. At the very least, the neutrality principle, as articulated above, should be treated as an aspirational constitutional principle. To their credit, the three legislative proposals under consideration this morning seek to accommodate that aspirational principle.


All three of the legislative proposals focus on the need to create a districting commission that will produce a districting plan that is independent of partisan and political influence. The NYCLU takes no position, at his juncture, as to which of the legislative approaches should be preferred.

The NYCLU does, however, assert that a commission created to draw the district lines must, to the maximum degree feasible, be immunized from partisan and political influence. In this regard, the NYCLU supports the idea, set forth in the Gianaris bill (A. 6287-a), which would create an Apportionment Nominations Committee with the responsibility of creating a pool of qualified individuals from which a smaller number of individuals would be chosen to serve on the Apportionment Commission. As we understand the Gianaris proposal, it would require the creation of an Apportionment Nominations Committee of eight members: one member appointed by the Chief Judge of the Court of Appeals; one member appointed by the Attorney General; one by the State Comptroller; one by the Governor; one by the President pro tem of the Senate; one by the Speaker of the Assembly; one by the minority leader of the Senate; and one by the minority leader of the Assembly. The Apportionment Nominations Committee would then be charged with the responsibility of selecting a pool of 40 persons who are qualified to serve on an Apportionment Commission and it establishes a set of criteria for evaluating qualifications for service on the Commission that are calculated to create a pool of individuals that are independent of partisan and political influence. It further seeks to impose a geographic, racial, ethnic and gender balance within the pool as well as a balance of enrolled Republicans, Democrats and Independents. The Gianaris bill goes on to provide that from the pool of 40 qualified persons, the legislative leaders of the Senate and Assembly would choose a total of eight individuals who would serve on the Apportionment Commission and those eight individuals would choose three others from the qualified pool to create an Apportionment Commission of eleven persons.

The Gianaris two-step process for the appointment of members to the Apportionment Commission represents a useful mechanism for achieving independence among those who are called upon to draw the district lines. We urge, however, that consideration be given to a slight modification of the Gianaris proposal. In this regard, the NYCLU suggests – rather than having the leaders of the Senate and Assembly choose eight members of the Apportionment Commission – that the entire composition of the Apportionment Commission be chosen by lottery from among the 40 qualified persons in the Gianaris eligibility pool.

The Gianaris bill also properly sets forth the criteria for drawing congressional and state legislative districts lines which includes, inter alia, adherence to both the federal Voting Rights Act of 1965 and constitutional standards respecting one person, one vote. And we support those provisions. But we commend, only in part, the Gianaris bill for its procedures governing legislative consideration and approval of the Commission’s redistricting plans. Based upon the approach successfully used in Iowa, the Gianaris bill would require the Legislature to vote up or down on the Commission’s first plan and would not permit the Legislature to amend the first plan; And, if the first plan is rejected by the Legislature, it would require the Commission to submit a second plan which must also be voted upon by the Legislature without amendment. But, the Gianaris approach deviates from the Iowa scheme in the circumstance where two plans are submitted by the Commission and rejected by the Legislature. In that circumstance the Commission must submit a third plan but the Legislature, in voting on the plan, is permitted to amend the Commission’s submission. Such a mechanism weakens dramatically the force of the Gianaris proposal. The requirement that the Legislature vote on the Commission’s plans without amendment is an important proposal for it reduces the capacity of the Legislature to re-introduce politics into the redistricting process. But, for such a requirement to be effective, it must apply — as in Iowa — to every circumstance in which the Commission submits a plan to the Legislature for approval.

The Gianaris proposal is problematic in another respect. It would allow the Legislature to reject all the plans submitted by the Commission but if it were to do so, the matter would be referred to the New York Court of Appeals which would determine which plan should be enacted into law. Such a referral might raise concerns respecting separation of powers and justiciability. It might be seen as requiring the Court to perform a legislative function or to render an advisory opinion. The NYCLU has not concluded definitively that such a provision is constitutionally impermissible. We simply raise this concern for further consideration. Finally, we support the Gianaris bill insofar as it calls upon the Apportionment Commission to hold public hearings and otherwise provide for public access to the process. We suggest, however, one additional set of requirements relating to the procedures employed by the Apportionment Commission in the interest of immunizing Commission members from undue political influence and preserving the integrity of the process. We urge that Commission members be held to an ethic similar to that imposed upon judges, namely, that they not communicate about the substance of any matter relating to redistricting outside the formal processes of the Commission and, particularly, that they not communicate ex parte or unilaterally about the substance of any redistricting matter with sitting legislators or party officials, except through the formal Commission processes.

Thank you for the opportunity to raise these issues. We look forward to working with the Task Force as it further considers this matter.

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