On Nov. 2, voters in California and Florida approved measures on the ballot to take the politics out of drawing legislative district lines.
In New York, the voters do not have the power to go to the ballot to change the redistricting process. That leaves it up to Gov.-elect Andrew Cuomo and the State Legislature to decide whether to keep redistricting in the hands of legislators or enact reforms to create a more independent process. With the state receiving census data from the federal government by April 1, 2011, and new districts needing to be drawn before the 2012 legislative elections, the clock is ticking on this important issue.
Cuomo and a majority of members of the legislature have expressed their support for change. But whether that will become a reality in time for the upcoming redistricting remains to be seen, along with how the governor, legislators and advocates will draw independent lines.
Line drawing, known as redistricting, occurs every 10 years after the completion of the U.S. Census to ensure that the all citizens are equally represented across congressional, state legislative and local council districts. The next round is slated to begin in 2011.
When legislators draw their own lines -- as is the case in New York -- it often becomes inherently political. Known as "gerrymandering," lines are configured in the best interests of the elected officials who draw them. (The term "gerrymander" was from a district formed in Massachusetts under Gov. Elbridge Gerry, which resembled a salamander, hence "gerry-mander.")
To avoid this, California recently formed a citizen redistricting commission, made up entirely of members of the public. In New York, the majority party in each house of the state legislature appoints the members of the Legislative Task Force on Demographic Research and Reapportionment or "LATFOR," which draws the maps. In addition to drawing their own lines through LATFOR, the leadership also draws lines for New York's congressional districts. The political decisions made by line-drawers can split natural communities, create oddly shaped districts and reconfigure lines to put potential challengers out of districts, sometimes by only a block or two.
The task force's maps must be approved by the legislature and the governor, although the last two governors signed the plan into law with little input.
In 2011-2012, , the Democrats will draw lines for the Assembly, and the Republicans will draw lines for the Senate as was the case in the last three redistricting cycles. From 1975 to 2008, Republicans controlled the Senate and Democrats controlled the Assembly in what was the longest standing partisan split in state legislatures across the country.
This in no small part was due to the way district lines are drawn. Some also blame the state's redistricting process for the dysfunction in Albany. Though it has been criticized for decades by good government groups, editorial boards and those elected officials or challengers who have been disadvantaged by gerrymandering, New York has kept its redistricting process.
Now observers think the time could be ripe for change, with public confidence in state government at an all-time low. Many candidates promised redistricting reform during their campaigns for office this year -- including Andrew Cuomo.
Cuomo's campaign policy book, the New NY Agenda, prominently featured redistricting reform. Its three-page entry (as long as the entry for education) favors the creation of an independent commission. Cuomo cites growing support for reform proposals, including legislation sponsored by Assemblymember Michael Gianaris and Sen. David Valesky that creates an independent commission.
As far as the specifics, Cuomo states that an independent commission must be "diverse in every sense of that word," and not motivated by self-interest, as is the case when legislators draw their own district maps. Cuomo alludes to criteria for drawing the lines, stating that the commission would be driven by the values of population equality, contiguity, compactness, minority representation, and preservation of communities of interest and pre-existing administrative boundaries.
For redistricting reform to become a reality, it must have support from members of the legislature -- the very people who have benefited from the current configuration of lines. In the last year, however, the legislature has begun to take steps in support of redistricting reform and the creation of an independent commission. In 2010, two Senate committees -- elections and government operation -- passed the Valesky/Gianaris legislation. The Assembly Governmental Operations Committee passed the bill as well. The Senate is set to hold hearings on redistricting, at which Democratic Sen. Martin Dilan, the current Senate co-chair of LATFOR, will preside. These will focus primarily on the criteria used for drawing the lines (of course Dilan will not hold this post next year, when Senate Republicans take back the majority).
During the campaign season, NY Uprising, a group formed by former Mayor Ed Koch in conjunction with Citizens Union (the sister arm of Citizens Union Foundation, which publishes Gotham Gazette), asked candidates to pledge their support for an independent redistricting commission. A majority of the incoming legislators signed on, backing strict criteria for drawing lines like those in the Valesky/Gianaris legislation. NY Uprising has secured the pledges of over three-quarters of senators, including 31 of the 32 incoming Republican senators with Dean Skelos, the Republican leader, among them. In addition, incoming Republican Sen. Mark Grisanti from Buffalo, who did not sign the pledge, states on his campaign website that he aims to "establish a nonpartisan citizens apportionment commission."
NY Uprising also has secured the pledges of 22 of 30 incoming Democrats in the Senate, and two additional Democratic senators are already co-sponsors of the Valesky legislation, yet did not sign the pledge.
The Assembly also appears to have a majority in support of an independent commission, including a majority of the Democratic conference. Though Assembly Speaker Sheldon Silver has not signed the pledge, he has indicated publicly a willingness to consider a change to the process. While most Assembly Democrats did not sign the NY Uprising pledge, many of those members are co-sponsors of the Valesky/Gianaris legislation. Taken together, those who support the bill or signed the pledge make up a firm majority of the Democratic conference. When adding the Republican support in the Assembly, over two-thirds of members support the creation of an independent redistricting commission.
Silver stated in September that he will not "stand in the way of redistricting reform." Koch has subsequently met with Silver and said he believes Silver is moving closer to supporting reform.
Democratic Assemblymember Hakeem Jeffries, who has been a strong supporter of an independent redistricting commission (and was infamously drawn out of the district held by then-incumbent Assemblymember Roger Green in 2002 by a couple blocks), believes that Cuomo will have the speaker's ear on reform.
"Speaker Silver has expressed openness to considering the issue of redistricting reform, which should permit Gov.-elect Cuomo to jumpstart a meaningful dialogue with the Democratic conference in the Assembly on this issue," said Jeffries. "It will be important for him to approach reform with a firm but sensitive hand, understanding that this is an issue that some members view as a matter of political life or death."
Others, including NY Uprising, are also confident that there will be sufficient support from the legislature. "Gov. Cuomo will certainly have opposers to reform, but we are confident that he will mount an effective campaign to pass redistricting reform. … It is no easy fight, but it will succeed," said Mark Botnick, a spokesperson for NY Uprising.
Pledges, of course, are not action. Koch has said he will use a <a-href="http://nymag.com/news/intelligencer/encounter/66467/">strategy of shamingmembers who do not keep their promises by going into their districts and letting their constituents know they are "liars." Cuomo seems likely to a take a softer approach, given the pushback that former Gov. Eliot Spitzer received when he threatened to go into the home districts of legislators. Cuomo, after all, will need to work with the legislature on a number of issues if he hopes to fulfill his campaign promise to turn the state around.
Given that many feel there will be change of some kind in the redistricting process, it remains to be seen how independent a new commission will be and how strict the guidelines will be for drawing districts. Should the legislature create a commission not seen as independent enough, members of the Senate and Assembly risk criticism from those who have long opposed the current process, and potentially the governor.
Cuomo has stated that he would veto any redistricting plan that "reflects partisan gerrymandering." Some feel that will serve as a kind of insurance policy to push the legislature to act in 2011.
"There will be legislation calling for an independent commission, because Cuomo has stated that he will veto the lines if there is not. The state must face these issues with the 2012 election approaching," said Botnick. "Albany is looked down upon by governments across the country. Legislators want to change that perception and become leaders."
Given the enormous budget challenges facing Cuomo as he enters office on January 1, 2011, there has been some <http://nymag.com/news/intelligencer/69382/>speculationthat redistricting reform could be used as a bargaining chip in the fight to change the state's costly pension system.
Jeffries, however, does not believe that redistricting reform will be sacrificed for the budget. "Once the budget is complete, the legislature should turn to redistricting reform as a matter of priority. I don’t think the issue should be linked to the budget and don't expect that it will," he said.
Should the budget be passed on time, the legislature will have the remaining months of the session to deliberate on redistricting reform. They then could enact a bill before they go home for the summer.
Rachael Fauss is research and policy manager for Citizens Union Foundation, which publishes Gotham Gazette.
For better, for worse, richer, or poorer, New York has joined the other 49 states in enacting no-fault divorce, effective last month. The only basis for divorce now is "irretrievable breakdown of the marriage" for at least six months.
While the new Domestic Relations law provides no definition of "irretrievable breakdown," in the Uniform Marriage & Divorce Act, it meant "No reasonable prospect of reconciliation." To avoid the possibility of one spouse obtaining a divorce -- or even remarrying -- before the couple's economic relationship is determined, the new law says, "No judgment of divorce shall be granted ... unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce."
As contemporary realities have increasingly made fault obsolete, most divorce cases have come to be about money, property and children and not about who is legally at fault. It is uncommon for one spouse to attempt to hold the other hostage in a failed marriage, though it sometimes happens. New York State had already taken fault out of the equationin determining monetary and property issues. Other than in a few exceptional cases, there was little harm to a defendant who was accused of, say, adultery or abandonment.
Under the old divorce law, fault was often fabricated and testimony perjured, usually with the knowledge of all concerned. Either the husband or the wife would take the witness stand and swear that the other party wrongfully refused to have "marital relations," left the marital home, or acted in a cruel manner, which constituted unhealthy and unsafe behavior when described in some detail. The defendant would have an opportunity to contest the charges, but typically did not because he or she also wanted the divorce, or at least did not want to contest it. Occasionally one spouse resisted divorce and might even be successful in showing that the fault allegations were untrue, or couldn't be proved, and the marriage would go on.
Until the 1970s, the only basis for divorce in New York was adultery. Then came fault grounds that included adultery, but also cruelty, abandonment, a separation agreement (filed with the county clerk, initially for two years and later reduced to one year), court ordered separation and, finally, imprisonment of one spouse for three years or more. One of those had to be proved. When adultery was the only possibility, one spouse might leave the state, relocate to Nevada for six weeks to establish residence and obtain a divorce there. Others went to Mexico, Haiti or the Dominican Republic for "quickie divorces," which New York had to recognize. Or private investigators, armed with cameras, would catch the unfaithful partner in a hotel room with someone other than the spouse. Now, it's goodbye to all that.
As the issue has been debated in the legislature and elsewhere over the past several years, many women and women's organizations opposed no fault divorce. They theorized that if a husband could get an immediate divorce and even remarry, the wife would lose out financially. To prevent that under the old system, judges had generally preferred not to sign off on the divorce until support and equitable distribution were decided. Those opposed to no-fault were successful until this year.
Many lawyers and judges agree that, since the decision to award the divorce is such a small part of the overall proceedings compared to the economic issues, taking the grounds for fault out of the picture will not significantly affect legal billing and other costs of divorce. Other divorce lawyers, however, supported the change in law even though they said it would reduce their income.
One major change, though, could allow lawyers' fees to rise. There is now a presumption, though it can be contested, that fees for lawyers and experts shall be paid by the richer spouse in order to insure that the parties are adequately represented. This is expected to be of great help to wives who do not have the money to pay retainer fees and on-going legal bills.
Lawyers and judges who have studied the new laws, which apply only in Supreme Court, which has exclusive jurisdiction over divorce, and not in Family Court, all seem to agree that the legislature will have to revisit the new statutes.
To take another example, what if one party wants to avoid divorce because selling the marital home in the current economy would be unwise? There does not appear to be a way to prevent the divorce.
Problems are anticipated in the new laws surrounding spousal maintenance. As to provisions regarding the support of the non-monied spouse and dependent children, specific formulas have been enacted for spousal support (still often referred to by some as alimony). Previously a judge determined these amounts. Now, the statute distinguishes between a payor (the monied spouse) earning less than $500,000 a year, and those above "the cap." In New York City, particularly in Manhattan, that is not so unusual an income.
Where the payor's income is under $500,000, the mathematical formula for temporary support at the commencement of an action is the lesser of 30 percent of the payor's income minus 20% of the payee's income, or 40 percent of the sum of the two incomes minus the payee's income.
While everybody is subject to the same formulas, any amounts over $500,000 are distributed by the judge applying more subjective factors. They could include transference of property to keep it out of eequitable distribution, future earning capacity of the parties, need for further education and access to health insurance. Also, the judge may consider the existence and duration of a pre-marital joint household -- a factor that will be interesting because it gives weight to the idea that there is life before marriage, when the issue being dealt with is about life after marriage.
The factors for the court to consider in deviating from the mathematical formula are slightly different in cases involving less than $500,000 and those going above the cap. But among the nearly 20 factors are present and future earning capacity, need for education or training, standard of living, wasteful dissipation of marital assets, medical insurance, tax consequences.
If the income of the payor (usually the high-income husband) is based on salary, documented by a W-2 form, then the number is a known factor. Under both the old and new law the problem arises when income and assets can be easily hidden by the spouse who is self-employed or in a cash business. The court may consider factors outside the mathematics of the formula, for example, imputed income, where the monied spouse says he earns X, but the court concludes that with two Escalades in the driveway, he is clearly earning more than he is disclosing.
The statute calls for a worksheet to calculate the percentage of income the more affluent spouse will pay to the other. No one knows, in figuring the percentage of income to be paid, whether the spousal maintenance should be subtracted from gross income first or the child support. The law offers no guidance as to whether subtractions are to be made from gross income to child support first, off the top, to arrive at the amount of support to the spouse or if is it the other way around.
Another problem the lawyers see is that the formulas are used to set temporary award, not in calculating "final" or so-called permanent awards, which are not really permanent. Yet at the initial stage -- before discovery -- the judge will not know the couples true income and other circumstances. The temporary awards could become permanent even though they were based on inadequate information.
"It won't work. Most decisions are not going to apply the formula; in practice it will rarely be applied" for higher income people, said Anne Peyton Bryant, an attorney in the office of Raoul Felder and Partners, P.C./ "Motions for temporary maintenance for high income people will be decided more on the basis of exceptions than the rules or the mathematical formulas If income is below the cap, the formula will work for them."
As for child support, the court can review the amount previously ordered when there has been a change in either parent's income of 15 income up or down, or support was last reviewed three or more years before. It would appear that other significant changes in circumstances could be brought before a judge. Custody remains unchanged and is still governed by the best interests of the child.
There is much disagreement about how much will actually change under the new divorce law and how it will all work, but that won't be known until decisions start coming out of the courts.
Emily Jane Goodman is a New York State Supreme Court justice
After 38 years in the State Assembly, Joseph Lentol is running for the office once again. And his only challenger in the Democratic primary, Pentecostal minister and attorney Andre Soleil, believes it is time for a change. Voters in the district "haven't had a choice since 1985," said Soleil, who faces the slim odds of beating a long-time incumbent in this year's race.
Lentol, though, believes he has earned the chance to remain in Albany and represent the 50th Assembly district. Throughout the years, he said, he has worked to improve Brooklyn's waterfront, advocated for tenants' rights and sought to pass legislation addressing environmental issues in the district, such as the bill to close RADIAC, a radioactive waste site located next to a public school.
In Brooklyn's 50th Assembly district, the issues are as varied as the population. To the north, the candidates have weighed in on key issues in Williamsburg and Greenpoint such as the newly passed extension of the 1982 Loft Law and the planned Domino housing project along the waterfront.
Soleil has accused the Assembly member of neglecting social issues in the southern part of the district, which includes Fort Greene and Clinton Hill. Soleil claims that Lentol has not paid sufficient attention to the city police department's stop-and-frisk policy and that the high rate of HIV/AIDS cases in those areas has not been properly dealt with.
Lentol disputes Soleil's claims and said he remains confident of his relationship with his constituents.
Whichever man wins will face Republican/Conservative Jacqueline Haro in November.
Lentol and Soleil differ over the plans to convert the abandoned Domino Sugar refinery on Kent Avenue in Williamsburg to a residential development.
The Assembly member opposes the project, arguing it will overtax essential neighborhood services including schools, public transportation, the local police precinct and the fire department. "What many don't know," Lentol said, "is that the city already closed "The People's Firehouse" serving the area, although the population has increased in recent years.
Lentol agrees with the developer, Community Preservation Corp.'s setting aside of 30 percent of the apartments as affordable housing. "We like the affordable housing. I like the fact that they did some sort of compromise, but I would like to see the project scaled down" more than it already has been, he said.
Soleil supports the project as it is. "For these development projects, I would certainly support developers who make agreements with the surrounding community," he said. "That's exactly the kind of housing project that I think needs to be encouraged throughout the city."
Soleil does not believe that the project will put too much stress on the waterfront area. If it does, for example, strain the transit system, he said, the community should "lean on the MTA to increase the frequency of trains. It would be incumbent upon the state to use the additional property taxes to make that possible."
On June 21, Gov. David Paterson signed an extension to the 1982 Loft Law, which protects residents of illegally converted loft apartments by requiring landlords to modify the buildings to meet safety standards. Loft tenants, many of whom live in Williamsburg and the surrounding neighborhoods, will have the same rent stabilization protections that other residents of the city currently enjoy.
Those who oppose the law have charged that landlords will pass the cost of increasing safety standards onto the tenants. The Bloomberg administration has criticized the law, saying that it will hurt manufacturing.
Lentol, who sponsored the bill, believes that an increase in rent would be worth it. "In the long run, it would be beneficial to somebody who's renting their apartment. We want the building to be brought up to code, even if it's a struggle," he said.
Soleil also supports the measure. Responding to the mayor's concerns for industry, he said, "The residential use is something that is better for us at this time. Our city needs to be able to adapt to the changing economy." He added, "the manufacturing systems have gone to New Jersey."
In his campaign, Soleil has focused on the southern part of the district, including Fort Greene, The candidate, who is black, accuses Lentol, who is white, of "largely ignoring the black and Latino population" in the area. He has criticized the Assembly member for not having an office in the southern part of the district and claims that he rarely sees him at community events.
"That's not surprising to me," retorted Lentol, "because I've never seen him in Fort Greene or Clinton Hill." Lentol asserted that over the years he has been to many community meetings. "Ask the people of the district if I'm in touch with the community. I'm confident in my relationship with my constituents, he said.
To bolster his argument, Soleil pointed to the police department's use of the stop-and-frisk, particularly in Fort Greene's Walt Whitman and Ingersoll housing projects. "Stop-and-frisk is a way of life" in Fort Greene, the candidate said, much as it in Bronwnsville. As a lawyer, Soleil said, he has defended a number of people who have never been arrested and who have been brutalized for "looking suspicious."
Lentol has not done enough to address the issue, Soleil claims. "Developments for low-income tenants should not be treated as concentration camps."
On July 16 Paterson signed into law the bill limiting the records the police could keep on such stops. Lentol says that he "has been a passionate supporter of that bill and was a key player in passing it and getting it through the committee," although he is not officially listed as a sponsor. Using stop-and-frisk, he said "to keep lists on people that haven't done anything is just insane."
Soleil also charged that Lentol has neglected the health needs of some in the district. "Fort Greene is a hotbed of HIV infection," said Soleil. He attributes this in part to the many Fort Greene residents who, he said, end up in the in the criminal justice system.
According to government sources, the state of New York has the most HIV-positive inmates in the country. About 97 percent of incarcerated individuals will be released and once again live in their communities.
Hepatitis C infection rates have become problematic in recent years as well. In 2007, for instance, 16 percent of incoming female inmates and 11 percent of new male inmates tested positive for the disease. Lentol's office has funded needle exchange program in an effort to fight this problem in the area.
Soleil recalls defending a man who contracted Hepatitis C and B after going to prison in 1976 and was neither told of nor treated for the diseases. If elected, Soleil said, he would hope to craft legislation requiring the Department of Corrections to test inmates for such diseases and then treat them if necessary.
Lentol says he "helped shepherd out of committee and voted for a bill that gave the Department of Health oversight in matters related to healthcare in the state's Department of Corrections. According to a press release, the legislation "authorizes [the health department] to conduct annual reviews of HIV and hepatitis C care in state and local correctional facilities, to mandate necessary changes, and to publicly release annual reports on correctional care."
By many accounts, Lentol's office has worked with various AIDS organizations including the Brooklyn AIDS Task Force and NYC AIDS Housing Network, and has supported a needle-exchange program with V.O.C.A.L.
Lentol said he has yet to ask for endorsements in his campaign. He currently has $273,322 on hand.
For his part, Soleil said, "We have not received endorsements and nor are we seeking them. We will be making 80,000 contacts in our district over the summer, and we're looking to win."