(photo: Mike Groll/Office of Governor Andrew M. Cuomo)

As focus on the 2020 Census intensifies, one key aspect of the discussion is how the population count will impact legislative representation and redistricting. Along with new congressional districts -- New York stands to lose at least one if not two seats in the House of Representatives -- the state will also redraw its legislative districts for the State Senate and State Assembly, along with local legislative bodies.

One important and controversial element in both the population count and the subsequent redistricting in the 2010-2012 cycle was the location of state prisons and how prisoners were counted in the Census; specifically, whether prisoners are counted as residents of the location of the prison they are held in or of their prior home address.

Prison populations had significant impact on local counts and therefore district lines, particularly in some of the more rural areas where most state prisons are located. At the same time, state prison population in New York has been on the decline since 1999, when it was at a peak of 71,649 prisoners. Now, that number has fallen to 46,973 prisoners, according to a press release from Governor Andrew Cuomo.

Up until 2010, the Census counted prisoners in the districts they were incarcerated in, despite most of them coming from New York City and Long Island, according to data from the New York State Legislative Task Force on Demographic Research on Reapportionment (LATFOR), which has oversight of the redistricting process.

The prison count has had a significant impact on redistricting within New York, adding to the population of certain regions of particular importance for State Senate seats. While the Assembly has been dominated by Democrats for decades now, the Senate has largely seen a very close split between Republicans and Democrats. Republicans controlled the Senate for most of the past decade, including during the 2012 redistricting, until this year -- Democrats won a fairly large majority in last year’s elections.

When Democrats last had control of the Senate, briefly in 2009-2010, a controversial bill was passed amid the 2010 Census mandating that prisoners are counted based on their last known home addresses.

While counting prisoners at their prior addresses is likely to remain the case going forward, some redistricting experts are concerned that this method of counting prisoners may not be deployed because newer legislation does not address it. In 2014 and after much criticism of the 2012 redistricting process as overly political, New York voters approved a ballot measure creating a new, more independent redistricting process for 2022 and beyond.

The 2020 Census count will begin in April of next year, without full clarity on the prison count question. Prison populations can have significant impacts on how district lines are drawn, and those lines can greatly influence legislative balances of power.

How did prisons impact redistricting?
For State Senate and Assembly redistricting, the Census is taken, then the total number of people in the state is divided by the total number of districts -- 150 Assembly districts and 63 Senate districts. District lines are then drawn necessitating that a similar number of people are counted within each district.

In 2010, many State Senate districts in upstate New York were underpopulated relative to other districts, giving upstate voters more influence over their representatives than voters in overpopulated districts downstate, including in New York City, where voter power was deflated. When taking away the prison population of seven of those upstate districts, they became severely underpopulated, further inflating upstate voters’ power, according to the Prison Policy Initiative.

Senate District 45, which includes Clinton, Essex, Franklin, Hamilton, Warren and Washington Counties, had one of the highest prison populations, 14,161, as of 2007, according to the Prison Policy Initiative. Taking away that prison population, the district had almost 30,000 fewer residents than the 2010 average population per district of 312,550, according to the Center for Urban Research at the CUNY Graduate Center.

Prison population counting also affected redistricting on a local level in places like Rome, New York. According to information from the Prison Policy Initiative, in Rome’s second ward, half the population counted in the census was incarcerated, inflating the local non-incarcerated population to double its actual size. Thus voters in Rome’s second ward had roughly twice the influence they would otherwise demand; prisoners are not allowed to vote in New York.

Some upstate populations inflated by prisoners meant that more funding and political attention was allocated to predominantly Republican communities, in part through districting, helping the party hold a firmer grasp over the State Senate.

New York changes how the census counts prisoners
In 2010, several non-profit groups including The Brennan Center, The Prison Policy Initiative, and Demos rallied against the way prisoners were being counted, calling it “prison-based gerrymandering.”

They strongly advocated for a bill (S6725A) sponsored by then-State Senator Eric Schneiderman, a Manhattan Democrat (who went on to become New York Attorney General, a position he resigned from in 2018 amid a domestic abuse scandal). The bill required incarcerated people to be counted based on their home residence and not based on the address of the prison where they are incarcerated.

This legislation was passed, along with a provision postponing the deadline for prisons to report inmates’ home addresses from July 1 to September 1. It was introduced as an amendment to the New York State revenue budget bill in August 2010 -- four months after the 2010 Census count had begun in April.

Almost 80 percent of the state’s prison population was then successfully recounted based on inmates’ last known addresses. The state prisoners whose addresses were not identifiable, as well as all federal prisoners, were not taken into account when determining legislative districts.

The legislation mostly stopped upstate communities from gaining additional political influence and resources based on housing prisons. At the time, the move was hotly contested, but it has not been discussed much since.

Justin Levitt, currently a law professor at Loyola Law School, who then served as counsel at The Brennan Center for Justice, believes redistricting was made fairer as a result of the legislation. “In the districts where there are prisons, the surrounding communities are represented by their representatives, but the people who are artificially stuck in that neighborhood are represented by legislators in the areas where they are from,” he said in a phone interview.  

Opponents of the change
The legislation faced fierce opponents, many of whom were legislators in districts home to prisons. Senator Betty Little, a Republican representing counties including as Clinton, Franklin, Essex and Washington Counties in Northern New York, was one of the senators most strongly against the legislation.

Senator Little’s district housed 13 state and federal prisons in 2009, although three of those have now been shut down based on New York Department of Corrections’ prison maps. The new method of counting prisoners meant that her district would have to be redrawn to accommodate more people so that it was not severely underpopulated.

Little filed a lawsuit in April 2011 against the Legislative Task Force for Research and Reapportionment (LATFOR), a task force set up by minority and majority leaders of the Senate and Assembly to determine district lines. The lawsuit aimed to strike down the prisoner counting legislation. She lost in Little vs LATFOR.

The plaintiffs argued that the legislation was unconstitutional, did not correctly count inhabitants, and that the method of counting inmates did not line up with what was recommended by the U.S. Census Bureau. The New York Supreme Court ruled that the legislation did not obstruct the constitution beyond a reasonable doubt. It also determined that prisoners’ addresses at the prisons should not be viewed as permanent. The ruling also quoted Census Bureau Director Robert M. Groves, who said that states may count prisoners however they please.

Today, Senator Little still argues her case. “My contention has been that incarcerated individuals should be counted where they are serving their sentence, their 'usual residence,' not where they are from and may or may never return," Little told Gotham Gazette via email. "Where they utilize services is where they should be counted because the allocation of resources for these services is often apportioned based on representation and population."

Efforts Since 2012 Redistricting
Jeffrey Wice, who has served as counsel to Democrats during state legislative redistricting, and is currently a fellow at SUNY Rockefeller School of Government, is concerned that New York may go back to counting prisoners in the districts where they are incarcerated as 2022’s redistricting process approaches.

Wice points to the redistricting amendment made to the New York State constitution in 2014, based on popular vote after passage by the Legislature. It stated that a ten-person redistricting commission would be appointed to determine district lines in the redistricting cycle of 2020-2022, and refined the criteria for commissioners and that the commission would take into account when determining district lines.

“The constitutional amendment is silent on that,” Wice said of how prisoners are counted. “And several of the commissioners could question whether the state is still required to reallocate prisoners because the constitutional amendment is silent.”

However, a spokesperson from Governor Andrew Cuomo's office sounded definitive, saying of prisoners: “They will be counted as part of their home districts.”

What next?
The impact of counting prisoners in the census, wherever they are located or tallied, is decreasing as the prison population is decreasing.  In the new state budget, the Legislature agreed to allow Cuomo to shutter up to three more prisons, the number will depend on which prison beds are identified for elimination given the declining inmate populations. It’s unclear how the closure of two or three prisons may impact the populations in other prisons, where some inmates may be transferred.

Meanwhile, the budget also included new criminal justice reforms that promise to significantly reduce jail and prison populations, including bail, speedy trial, and discovery reforms.

The likely continuing reduction in prison population across the state, plus the prison population-counting legislation passed to apply to the 2010 Census and beyond, and the new redistricting process set to take hold based on the constitutional amendment that was passed in 2014, may ultimately ensure counting of prison populations will play less of a role in determining legislative district lines in the 2020-2022 redistricting cycle.

[READ: New York's New, Untested Redistricting Process Set to Unfold After 2020 Census]

New York City Hall

What to watch for this week in New York politics:

We may get the answer this week as to whether Mayor Bill de Blasio is indeed running for the Democratic nomination for President of the United States. The mayor has been visiting early primary/caucus states and saying for weeks that a decision will be coming "sooner rather than later." He stayed in the city this weekend, perhaps preparing for an announcement one way or the other. Stay tuned. De Blasio begins his week with events related to NYCHA and the city's jails plan, as well as his usual NY1 Monday evening appearance (see below for details).

While the state Legislature is now on its usual mid-April break, the City Council will be very busy this week with committee hearings and a full-body Stated Meeting, at which new bills are introduced and bills that have passed committee are voted on by the full Council. This week's passed bills are expected to include a major package of environmental policy including mandates for many large buildings to become more eco-friendly. Some of the committee hearings this week will also consider new or updated legislation for the first time, with no vote expected, but signifying possible movement toward eventual passage.

It's the first week since the Council released its response to de Blasio's preliminary budget plan. Public and private negotiations over the city budget will continue this week as the mayor is set to release his executive budget proposal later this month, leading to another round of Council hearings and an evenutal budget agreement by the July 1 start of the next fiscal year.

[READ: City Council Response to De Blasio Budget Includes Investment in Workers, Cut to ThriveNYC, & Ferry Spending Transparency]

[LISTEN: Max & Murphy Podcast with City Council Speaker Corey Johnson]

This week will also feature an MTA Board meeting, a meeting of the city's Panel for Educational Policy, a speech by Port Authority Executive Director Rick Cotton, two debates among candidates vying in the special City Council election to replace Public Advocate Jumaane Williams, and more. As always, there's a lot happening - see our day-by-day rundown below.

And, perhaps this will be the week that the mayor, City Council speaker, and borough presidents name the inaugural members of the new New York City Civic Engagement Commission, which was supposed to be named for April 1.

***Do you have events or topics for us to include in an upcoming Week Ahead in New York Politics?
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The run of the week in detail:

Monday
On Monday at noon at the Williamsburg Community Center in Brooklyn, "Mayor de Blasio will make an announcement regarding NYCHA’s lead prevention efforts. This event is open press. There will be Q-and-A. Later, the Mayor and Council Member Levin will meet with community leaders to discuss the City’s borough-based jail plan. This meeting is closed press. In the evening, the Mayor will appear live on NY1’s Inside City Hall with Errol Louis."

At the City Council on Monday:
--The Committee on Environmental Protection will meet at 10 a.m. for an oversight hearing regarding “the environmental impacts of the proposed Williams Pipeline.” City Council Speaker Corey Johnson will deliver remarks.
--The Committee on Public Housing will meet at 10 a.m. for an oversight hearing regarding “NYCHA management of Tenant Participation Activity funds.”
--The Committee on Governmental Operations will meet at 1 p.m. to discuss a proposed law to increase the cap on public funds available to participants in the city’s public financing system, and to implement the charter revisions approved by city voters in November.
--The Committee on Fire and Emergency Management will meet at 1 p.m. for an oversight hearing regarding “FDNY ambulance costs,” as well as to discuss a proposed law requiring the FDNY to report on the cost of ambulance transport.
--The Subcommittee on Landmarks, Public Siting, and Maritime Uses will meet at 1 p.m.

Monday is MTA Board committee meeting day for April.

On Monday at 10 a.m. on the Lower East Side, "the NY Renews coalition and member organizations including the New York City Environmental Justice Alliance, Demos, and Make the Road NY will release a new report: Justicia Climática: How the Climate & Community Protection Act will Increase Resiliency for New York's Latinx Communities. The report details the ways in which Latinx communities are both disproportionately impacted by both the toxic effects of extracting and burning fossil fuels, and more likely to suffer damage to homes, person, and property from severe weather caused by climate change."

On Monday at noon in Chinatown, the city's Small Business Services department "will announce that registration is now open for new business courses in multiple languages, available to over 5,000 entrepreneurs. The courses will offer new culturally-competent curricula tailored to the needs of immigrant communities. The first new courses will be available in Spanish, Mandarin, and Russian."

Tuesday
At the City Council on Tuesday:
--The Subcommittee on Zoning and Franchises will meet at 9:30 a.m.
--The Committee on Sanitation will meet at 1 p.m. to discuss the implementation of a 5 cent fee on paper bags, opting the city into a new law passed in the adopted state budget alongside the near-ban on plastic bags.
--The Committee on Parks and Recreation will meet at 1 p.m. for an oversight hearing “examining water quality at the Parks Department’s beaches.”
--The Committee on Contracts will meet at 1 p.m. to discuss proposed laws related to increased reporting requirements for contract modifications and to city contracts with non-profits.

At 8:30 a.m. Tuesday, City Council Member Ben Kallos will speak to the Manhattan Chamber of Commerce at Fortis Lux Financial in East Midtown.

At 6:30 p.m. Tuesday, Brooklyn College’s CLAS Student Government and the Young Progressives of America will host a forum for candidates for the 45th Council District seat at the Brooklyn College Student Center. The participating candidates will include Farah Louis, Anthony Beckford, Jovia Radix, Monique Waterman, Hercules Reid, and Xamayla Rose.

Wednesday
At the City Council on Wednesday:
--The Committee on Land Use will meet at 11 a.m.
--The Committee on Juvenile Justice will tour the Crossroads Juvenile Detention Center in Brownsville at 1 p.m.
--The Committees on Transportation, Economic Development and Governmental Operations will meet jointly at 1 p.m. to discuss the potential creation of an “Office of the Waterfront,” which would coordinate among agencies on waterfront-related issues and would be tasked with “implementing the New York City Comprehensive Waterfront Plan,” as well as the potential creation of a “Director of Ferry Operations” within DOT.

At 9 a.m. Wednesday, the MTA will hold a board meeting.

At noon Wednesday, State Comptroller Tom DiNapoli will speak at the Monsignor Hartman Memorial Luncheon at Crest Hollow Country Club in Woodbury.

At 5 p.m. Wednesday on WBAI radio, this week’s Max & Murphy show will air. Tune in at 99.5FM or wbai.org. This week’s show will focus on the latest out of state government in Albany.

At 6 p.m. Wednesday, the Panel for Educational Policy will meet at Murry Bergtraum High School in Chinatown.

At 6 p.m. Wednesday, LatinoJustice PRLDEF Lideres will host “Latinx: Political Power Rising” at the Black Gotham studio in the Financial District. Panelists will discuss the ascension of Latinx politicians and candidates and issues facing the community. Panelists will include Assemblymember Catalina Cruz, Senior Political Strategist for the Center for Popular Democracy Natalia Salgado, and Associate Counsel for LatinoJustice PRLDEF Jorge Vasquez.

At 6:30 p.m. Wednesday, City & State will unveil its debut “Higher Education Power 50” list at the Battery Gardens restaurant in Battery Park City. Maya Wiley, Senior Vice President for Social Justice at the New School and former counsel to Mayor de Blasio, will give keynote remarks.

At 7 p.m. Wednesday, City Comptroller Scott Stringer will hold a town hall meeting at the Elmhurst Hospital in Queens. The town hall is being organized in partnership with U.S. Reps Alexandria Ocasio-Cortez and Grace Meng, Queens Borough President Melinda Katz, State Senators Jessica Ramos and Toby Ann Stavisky, Assemblymembers Catalina Cruz and Michael DenDekker, and City Council Member Danny Dromm.

At 7 p.m. Wednesday at Brooklyn Law School, "Brooklyn Voters Alliance and Brooklyn Law School, along with local partners, will host an educational forum on the restoration of voting rights for people on parole and universal voting. We will hear from legal experts, advocates, and most importantly, New Yorkers who have felt the impact of our arcane and discriminatory voting laws as we engage in a dynamic, educational, and emotional discussion concerning the history of felony disenfranchisement...Speakers from the ACLU, Parole Preparation Project, National Action Network, the Brennan Center, Hour Working Women, and more."

Thursday
The City Council will hold a stated meeting at 1:30 p.m. Thursday. It will be prefaced by the usual pre-stated press conference hosted by Speaker Corey Johnson.

Also at the City Council on Thursday: the Committee on Finance will meet at 10 a.m.

At 8 a.m. Thursday, the Association for a Better New York will host Port Authority Executive Director Rick Cotton at the Mezzanine in the Financial District, discussing an “updated progress report on the redevelopment projects at the region's airports in a presentation titled "From Vision to Reality: Rebuilding New York's Airports for the 21st Century".”

At 9:30 a.m. Thursday, the Rent Guidelines Board will meet at the Landmarks Preservation Commission offices in the Manhattan Municipal Building.

At 10 a.m. Thursday, the Campaign Finance Board will hold a board meeting at 100 Church Street.

At 1:30 p.m. Thursday, U.S. Rep Alexandria Ocasio-Cortez will speak at the John Jay College of Criminal Justice’s Gerald Lynch Theater.

At 5:30 p.m. Thursday, activists will rally and march from City Hall across the Brooklyn Bridge to protest the proposed Williams Pipeline.

At 6 p.m. Thursday, candidates for City Council in District 45 will participate in a debate at the Pakistani American Youth Society in Kensington. Bklyner's Kadia Goba will moderate. Participating candidates include Victor Jordan, Anthony Beckford, Monique Waterman, Farah Louis, Jovia Radix, Xamayla Rose, Adina Sash, Jean Similien, Rickie Tulloch, and Hercules Reid.

Friday and the weekend
Beginning at 8 a.m. Friday, the Regional Plan Association will host its 2019 Assembly at the Grand Hyatt New York in Midtown. Speakers “will address ways to promote both prosperity and community health—and how to put those policies and projects into action.” The keynote speakers will be Los Angeles Mayor Eric Garcetti, JPMorgan Chase CEO Jamie Dimon, and Connecticut Governor Ned Lamont. A variety of local officials will also participate.

Mayor Bill de Blasio may make his weekly appearance on WNYC’s The Brian Lehrer Show on Friday at 10 a.m.

Friday is Good Friday and the first night of Passover, and Sunday is Easter.

***
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NY State Senate Districts (image via Google Maps)

Following the 2020 Census, New York will kick off the decennial redrawing of its state legislative and congressional districts to ensure equitable representation based on population. But the next redistricting process is untested so far, having been approved after the 2010 Census when New York saw a severe undercount, contributing to the loss of one congressional seat, followed by a redistricting that many observers and elected officials criticized for creating overly complicated state legislative districts on partisan lines.

Looking ahead to the upcoming process, experts are hopeful, though uncertain, that the new redistricting method -- approved by voters via 2014 ballot referendum -- will lead to cleaner, more representative districts that improve the state’s democratic process once they take effect in 2022.

New York currently has 150 Assembly districts, 63 Senate districts, and 27 for the U.S. House of Representatives, all of which could change with the next redistricting when a new advisory commission of mostly legislative appointees will recommend the new boundaries for districts. That commission is meant to reduce political influence, though its proposed maps will not be binding.

Democrats now control the entire state Legislature, though they will have to keep control, especially of the Senate, through the 2020 elections. Republicans held the state Senate when the last round of redistricting took place, with a split Legislature in part leading to heavily gerrymandered district lines. At least in theory, legislative leaders will be less able, and therefore likely less inclined, to manipulate the next redistricting process, which offers a degree of parity and safeguards against partisan politics.

The census is the first big next step, and with the subsequent redistricting it determines representation of a state’s population in Congress and, for New York, the state Senate and Assembly. Besides the threat of billions in lost federal funding, an inaccurate census count can set the stage for a skewed drawing of legislative and congressional districts. New York has seen a net out-migration of more than a million residents since 2010 and stands to lose at least one seat in Congress, if not two, if the state’s population is not adequately counted.  

Following the last census, in 2010, the state’s redistricting process came under heavy scrutiny for lacking transparency and for creating state Senate districts that seemed designed to advantage Republicans and upstate and suburban districts, diluting the power of New York City residents who tend to lean Democratic. The process also strengthened Democrats’ control over the Assembly, though that chamber has traditionally been dominated by the party.

Governor Andrew Cuomo approved of the redistricting plan, which was put forward by the state’s Legislative Task Force on Demographic Research and Reapportionment (LATFOR) after 23 hearings across the state. At the last LATFOR hearing, one member, then-state Senator Martin Dilan, a Democrat, said he had considered boycotting the meeting because “the entire process has been a farce, a sham, has been a waste of money, and I believe that we have not listened to the citizens of the state of New York, and the plan that's being presented today to the Legislature is something that's putting the cart before the horse.” The redistricting plan, he said, was presented to the public and to the Legislature without LATFOR voting on it first.

But as the Legislature adopted the redistricting plan, it moved forward with an amendment to the state constitution, approved through voter referendum, which mandated the creation of a new “independent redistricting commission” to redraw district lines.

In 2021, that commission will be created for the first time, composed of ten members -- two each appointed by the Assembly Speaker, Senate majority leader, and minority leaders in both houses; and two chosen by a majority of those eight appointed members. The legislation set restrictions on who can be members, prohibiting anyone who has been in the previous three years a state legislator, congressional representative, statewide elected official, legislative or state employee, lobbyist, or political party chair. It also restricts the spouses of legislators, representatives, and statewide officials from serving. The commission will have two co-executive directors, representing the Democratic and Republican parties. LATFOR, chaired by Assemblymember Marcos Crespo, a Bronx Democrat, is meant to provide assistance to the commission. Crespo’s office did not respond to repeated requests for comment for this story.

The new commission will be guided by clearer safeguards and criteria than its predecessor as it spends months holding public hearings across the state. The authorizing legislation requires the commission to hold at least one hearing in the cities of Albany, Buffalo, Syracuse, Rochester, and White Plains, and in counties including the Bronx, Brooklyn, Queens, Staten Island, Manhattan, Nassau, and Suffolk.

The law mandates that districts should not be drawn in a way that could lead to “the denial or abridgement of racial or language minority voting rights.” It requires the commission to create equally populated districts as far as possible and to provide explanations in case of deviations.

The law also protects against the party in power from exploiting its position. If the leaders of the two legislative chambers represent different parties, the newly drawn maps recommended by the commission must be approved by a majority vote of each house. But, if both chambers are controlled by the same party, approval would require a two-thirds majority vote.  

“What we have this time around is the largest amount of uncertainty that we’ve ever had in redistricting in the last 40 years,” said Esmeralda Simmons, founder and executive director of the Center for Law and Social Justice, at Medgar Evers College, CUNY. “There’s a big question mark about what exactly is going to happen and how in this precedent-setting year, how this commission and the state Legislature will actually behave under these circumstances. It’s a test of whether or not elected officials, when their self interest collides with democracy, will choose democracy.”

Experts agree that an effective redistricting can only take place if the state carries out a thorough census effort and counts each and every resident of New York, and that the process is as free of politics as possible.

The 2020 Census is expected to be particularly challenging for several reasons -- the federal government is underfunding the Census Bureau; the count will be carried out largely through digital methodology for the first time; the Trump administration is attempting to add a citizenship question (which is being challenged in court) amid already rising concerns among immigrant communities, particularly undocumented immigrants, that they could fall under the federal government’s scrutiny; and the state has only allocated $20 million for community outreach though advocates called for twice that amount.

“Right now, the focus has got to be on the census because a bad census is going to result in a lack of fair representation,” said Jeff Wice, Fellow at the SUNY Rockefeller Institute of Government, who is a veteran of four cycles of legislative redistricting in New York City and State. “The state commission won’t be created until 2021 so it is not going to be a frontburner issue now, but people do need to learn about the process.”

As Wice and the others noted, an inadequate census would raise questions about the equitable reapportionment of districts. Undercounts, particularly of hard-to-count communities, can lead to redrawing district boundaries in ways that would create overpopulated districts, effectively watering down their representation, while over-representing others.

“Given there are communities that tend to not appear on the population count combined with the fact that there are districts that are disappearing, is potentially worrisome in terms of the reality of representation on the congressional level,” said Yurij Rudensky, counsel with the Democracy Program at the Brennan Center for Justice, “particularly for parts of the city like Queens and Brooklyn and the Bronx where lower-income communities, communities of color tend to live.”

There also remain several other open questions about the process, including how independent the redistricting commission will really be and whether the districts it draws will ultimately be approved by the Legislature and Governor. In the last round of redistricting, the Legislature deadlocked on congressional maps and a judicially appointed special master ended up drawing the maps that were later adopted. 

“Maps that are drawn by courts perform well from a partisan fairness standpoint,” said Rudensky, “and of course courts are also sensitive to racial implications and have for a long time considered Voting Rights Act challenges.”

The independent commission’s recommendations will not be binding and the Legislature can, after rejecting the commission’s plans twice, adopt its own plan. “There’s no guarantee that this is how things will play out but it is possible as the proposal is written right now,” Rudensky said. “That is a reality, that is a shortcoming. It doesn’t mean it will happen, it doesn’t even mean that it’s likely because I think the way that it was designed, it will make it harder. Because the public has this increased role, it would look bad at the very least. That’s not to say that that will stop any sort of funny business.”

The 2021 redistricting process will be the first to be carried out without certain protections of the Voting Rights Act, which were struck down by the United States Supreme Court in 2013. Those protections required certain states and counties -- including the Bronx, Brooklyn and Manhattan -- to get approval from the federal Department of Justice to make changes to election laws, including the drawing of districts. Without those protections, “the only way to challenge something that hurts racial minority voters would be to go to court after the fact, not stop it before it goes into effect, and that’s a real major difference,” Simmons said, “the fact that they don’t have the hammer of the Justice Department hanging over their heads to reject racially discriminatory voting lines.”

Simmons is eagerly awaiting the Supreme Court’s decision, expected this summer, in a separate case that could bring an end to extreme partisan gerrymandering, which she is hoping will strengthen the state redistricting process as well.

The state Legislature passed a law in 2010 requiring that prison populations be counted based on inmates’ previous residence, but the constitutional amendment creating the redistricting commission does not address the issue. Prison populations can especially bolster upstate area population counts if prisoners are counted based on their prison location.

“The commissioners could question whether the state is still required to reallocate prisoners because the constitutional amendment is silent on that,” Wice said. “It is an open question because they could argue that the constitutional amendment preempts a chapter law that was enacted prior to the constitutional amendment...That could be a major debate.”

Nonetheless, there’s hope that the state can set a better standard with the new process. “I believe that elected officials can redistrict responsibly if they have a fair, transparent, objective process, and that’s very doable,” Wice said. “You don’t want to have plans…that are enacted through backroom machinations….[The commission’s] got to do things more in the open that will lend itself to more credibility and trust.”

Simmons admits that she has a “deep-seated fear” that the Legislature could exploit the loophole in the law that allows it to draw districts and reject the commission’s proposal. But, she said, “I do have hope that this process will be real and not just subterfuge, wasting taxpayer dollars by giving some people some busy work while the Legislature draws its own districts and simply rejects out of hand anything suggested by the commission.”

Rudensky said the public eye will keep the Legislature honest. “There’s gonna be a lot of attention on it, focus on it and hopefully that will help make sure that the reform is a success,” he said.

Note - this article has been updated to clarify that congressional maps were drawn by a court-appointed special master in only the previous round of redistricting, not the previous two rounds. 

Gov. Cuomo, middle, and Comptroller DiNapoli, right (photo: Governor's office)

In the last few months, Governor Andrew Cuomo and State Comptroller Tom DiNapoli have raised red flags about the impact of the 2017 federal tax overhaul ushered through by President Trump and Republicans in Congress. Chiefly, they said that a new $10,000 cap on the State and Local Tax (SALT) deduction has led to a massive drop in revenue and is likely being accompanied by increased outmigration of high-earning New Yorkers to states with lower taxes.

But Cuomo and DiNapoli never provided concrete proof of the alleged trend and a new report undercuts their claim, to an extent, showing that New Yorkers have not been leaving the state because of the SALT cap but rather as part of continuing demographic trends and shifts in job markets.

Moody’s Investors Service, a leading ratings agency, released a report on Monday that said there are “no discernible signs” that the change in the SALT deduction is leading to people moving out of high-tax states, and notes that the impact of the new cap “will be felt widely for the first time this tax season and possibly spur some out-migration, but jobs and demographic trends will continue to influence relocation patterns more than tax burdens.”

The initial findings, based on 2017 data, fly in the face of the governor’s more definitive claims that the federal tax reforms -- which largely benefited corporations and wealthy individuals -- were leading to outmigration from high-tax Democratic states like New York, Connecticut, and New Jersey, where high-income earners make up a large part of the revenue base.

“We hope Moody’s is right, but with the first filing deadline post-SALT still upcoming, we are in the first inning of a long game,” said Freeman Klopott, a spokesperson for the state Division of the Budget, which is under Cuomo. “By the federal government’s own calculation, the cap on SALT is a more than $600 billion tax hike that will be borne overwhelmingly by New York and similarly situated states, making it an attack on the work we have done to strengthen New York State’ economy with a 2 percent limit on annual State spending growth, a cap on local property taxes, and a tax cut for every New Yorker.”

Brian Butry, a spokesperson for DiNapoli, said in an email, “As New Yorkers finalize their taxes, some are learning for the first time the impact of the SALT cap. The jury remains out on what the long-term effect will be.”

At a February 4 news conference, Cuomo and DiNapoli made a dire announcement that personal income taxes had come in $2.3 billion lower in December and January than the prior year, warning that even a small amount of outmigration of high-income residents would have a significant impact on state revenue. The SALT cap, they said, cost the state $14.3 billion in total.  

“SALT encourages high-income New Yorkers to move to other states,” Cuomo said, using his typical and misleading shorthand of “SALT” to mean the new cap on SALT deductions (the governor also regularly says that SALT was ended, when it has been capped). “And what you have to remember is even if a small number of high-income taxpayers leave, it has a dramatic effect on this tax space.”

He continued, “Taxpayers are adjusting in response to SALT....We have been hearing all along from the major accounting firms, to major individuals, that this is going to be the tipping point and that people now will be making a decision to make a geographic location change. And the SALT provision, remember, did not go into effect yesterday. It had over one year to adjust, so you didn't have to move on 24 hours' notice. You had one year to start to plan a move. And it goes into effect this April, so if you had to move or decided to move, now is the time that you would do it.”

DiNapoli was less forceful in making that argument that day. “We certainly have all heard anecdotally, as the Governor pointed out, people who say they're going to change their legal address, and I think these numbers show that in fact that is probably a big part of the picture,” he said, while acknowledging that several other factors, including volatility in the financial markets were to blame for the recent revenue decrease.

In a March 13 interview on WBAI radio with Gotham Gazette’s Ben Max and City Limits’ Jarrett Murphy, DiNapoli continued that line of reasoning while maintaining that he would need to examine months of data from the Department of Taxation and Finance before coming to a firm conclusion. “I do think that is a piece and probably a very significant piece, of what’s happening,” he said of the alleged SALT cap impact on taxpayer behavior and state revenue. “We’re gonna need more months of data....My instinct tells me the governor was on the right track, that the biggest piece of the shortfall was the response to the adjustment in federal tax reform.”

[LISTEN: Max & Murphy Podcast: Comptroller Tom DiNapoli (March 2019)]

The Moody’s report, however, points out using Census Bureau data that migration rates between 2012 and 2017 in the five states where “the SALT deduction represents the largest share of total federal adjusted gross income” -- California, Connecticut, Maryland, New Jersey and New York -- “are below pre-recession levels and generally follow the US as a whole.” The report notes that it is too early to gauge if the federal tax law has affected migration, contrary to what Cuomo and, to a lesser degree, DiNapoli have said. The report also said that people are generally moving from one high-tax state to another.

“In 2017, 25%-30% of people who moved out of New York, Connecticut and New Jersey moved to another one of the five high-tax states,” the report reads. “The most popular destination for people moving out of New Jersey and Connecticut was New York.”

The report does confirm long-running concerns from Cuomo and others about migration of New Yorkers to Florida, a state with far lower taxes. Moody’s noted that 14% of people who moved out of New York in 2017 went to the Sunshine State. But, those who moved were not primarily driven by lower taxes but rather by job opportunities, climate, and housing costs, the report said. The trend of New Yorkers moving to Florida is nothing new, however. Overall, New Yorkers have consistently been leaving the state since at least 1961, according to the Empire Center, a think tank, and the state saw a net loss of more than 1 million people between 2010 and July 2017.

New York City Hall

What to watch for this week in New York politics:

Mayor Bill de Blasio is back from Nevada and the state Legislature is back in session post-budget. Melissa DeRosa, secretary to Governor Andrew Cuomo, will speak about the administration's accomplishments and priorities and the City Council will pass bills. The first state Senate hearing on the city's specialized high schools and the MTA's last public hearing on the new L-train plans are both scheduled.

There's a lot to watch for this week -- see our day-by-day rundown below.

[READ: 10 Issues to Watch in Albany's Post-Budget Legislative Session]

***Do you have events or topics for us to include in an upcoming Week Ahead in New York Politics?
e-mail Gotham Gazette editor Ben Max: This email address is being protected from spambots. You need JavaScript enabled to view it.***

The run of the week in detail:

Monday
The New York State Legislature will be in session on Monday in Albany.

The New York State Board of Regents will meet on Monday and Tuesday in Albany.

At the City Council on Monday:
--The Committees on Mental Health and Aging will meet jointly at 10 a.m. for an oversight hearing regarding “qualifications, training, and protocol” for home health care aides.
--The Committee on Youth Services will meet at 10 a.m. for an oversight hearing regarding Neighborhood Advisory Boards.
--The Committee on Public Safety will meet at 11 a.m. to discuss a proposed law that would ban the Department of Probation from conducting drug tests in search of marijuana for prospective employees.
--The Committee on Health will meet at 11:30 a.m. to discuss several proposed laws related to water tanks, including several new regulations and reporting requirements regarding inspections and imposing civil penalties for building owners who fail to repair water tanks.
--The Committee on Civil and Human Rights will meet at 2 p.m. to discuss a proposed law which would ban employers from drug testing prospective hires for THC, with the exception of “safety and security sensitive jobs” or jobs tied to federal or state contracts.

On Mondayschools "Chancellor Carranza will kick off Civics for All Week with Chief Democracy Officer Ayirini Fonesca-Sabune. They will participate in student voter registration and a government class at High School for Environmental Studies. Later, he will participate in a panel discussion on the Wallace Foundation Principal Pipeline Initiative. In the afternoon, he will attend the School Diversity Advisory Group youth symposium and deliver brief remarks."

At 1 p.m. Monday, Lieutenant Governor Kathy Hochul will deliver remarks at a Women's Agenda event at Hamilton College.

At 6 p.m. Monday, the MTA will host the fourth and final open house for community members regarding the “revised” L-train project. This hearing will take place at the 14th Street YMCA in the East Village.

Mayor Bill de Blasio will appear on NY1’s Inside City Hall on Monday evening in the 7 and 11 p.m. hours.

Tuesday
The New York State Legislature will be in session on Tuesday in Albany.

The City Council will hold a stated meeting at 1:30 p.m. Tuesday. It will be preceded by the typical pre-stated press conference led by Speaker Corey Johnson.

Just before the state meeting, there will be a noon rally at City Hall where “elected officials, activists and organizational leaders, including members of the Climate Works for All coalition, will call for the  passing of Intro 1253, the most comprehensive climate legislation that slashes climate and air pollution from the city’s top source of pollution: large, dirty buildings, before Earth Day...Intro 1253, prime sponsored by Councilmember Constantinides and Speaker Johnson, is a world-first law to set specific, comprehensive standards on buildings to cut pollution by 40% by 2030 and over 80% by 2050. It would be the single largest cut to climate pollution by any city ever. The rally will push for passage of this legislation, which is opposed by the deep-pocketed real estate industry, before Earth Day.” Participants: “Councilmember Costa Constantinides and other elected leaders and activists plus leaders from 350.org, AFSCME DC37, ALIGN-NY, American Institute of Architects - NY, DSA-NYC, People’s Climate Mobilization - NY, NYC-EJA, New York Communities for Change, Sunrise Movement - NYC, WE ACT for Environmental Justice, and Working Families.”

Also at the City Council on Tuesday: The Committee on Criminal Justice will meet at 10 a.m. to discuss proposed laws requiring the Department of Correction to notify defendants when bail is set below $10, and to remove added fees associated with making bail payments via credit card.

At 8:30 a.m. Tuesday, Bronx Borough President Ruben Diaz Jr, Brooklyn Borough President Eric Adams, Manhattan Borough President Gale Brewer, and Staten Island Borough President Jimmy Oddo will join the Hunter College New York City Food Policy Center for a discussion on food policy in the city.

At 11:15 a.m. Tuesday in Albany, "three hundred activists from across New York State will rally and lobby for the passage of the Climate & Community Protection Act (CCPA) in 2019. Now that the state budget has passed, both the Assembly and Senate are poised to vote on the CCPA, which would set an enforceable mandate to ensure New York achieves a 100% reduction in greenhouse gas emissions by 2050, while investing funds in low-income communities and communities of color and creating good, green jobs."

At noon Tuesday, the Brennan Center will host “Prosecution in the 21st Century: Transforming the Criminal Justice System” at the NYU Law School, discussing the power wielded by prosecutors and how the job is changing in the 21st century. Panelists will include Brooklyn District Attorney Eric Gonzalez, Cook County, IL State’s Attorney Kim Foxx, author and journalist Emily Bazelon, and Fair and Just Prosecution Executive Director Miriam Krinsky.

On Tuesday at 12:30 p.m. in Albany, Senator Brad Hoylman, legislative colleagues, and coalition members of the New York Transgender Advocacy Group will host a press conference "to urge action on critical LGBTQ-specific issues this legislative session."

At 7 p.m. Tuesday, Attorney General Tish James will be honored with a “Public Service Award” by the Jewish Community Relations Council of New York at their annual gala at the Pierre Hotel.

Wednesday
The New York State Legislature will be in session on Wednesday in Albany.

At the City Council on Wednesday:
--The Committee on Health will meet at 10 a.m. for an oversight hearing regarding “the state’s medical marijuana program and its intersection with a recreational marijuana program,” as well as to discuss resolutions calling on the state to expand its medical marijuana laws and to patch any conflicts between medical and potential recreational marijuana regulations.
--The Committees on Justice System and Immigration will meet jointly at 1 p.m. for an oversight hearing regarding ICE in New York City courts, as well as to discuss a resolution calling on the state to pass the Protect Our Courts Act, which would prohibit ICE raids at courthouses.
--The Committees on Hospitals and General Welfare will meet jointly at 1 p.m. for an oversight hearing regarding the “impact of marijuana policies on child welfare,” as well as to discuss proposed laws requiring ACS to report on the allegations leading to investigations of child abuse and on the number of patients referred as a result of a positive drug test performed in a public hospital. The committees will also discuss resolutions calling on ACS to recognize that marijuana use alone doesn’t constitute child abuse, and for the state health department to create “clear and fair regulations” for hospitals drug testing pregnant women.

At 10 a.m. Wednesday, the Senate Standing Committee on Higher Education will meet in Albany for a public oversight hearing regarding for-profit schools.

At 10 a.m. Wednesday, the City Planning Commission will hold a public meeting at 120 Broadway.

At 4 p.m. Wednesday, the Civilian Complaint Review Board will hold a board meeting at 100 Church Street.

At 5 p.m. Wednesday, this week’s Max & Murphy program will air on WBAI radio, 99.5FM and wbai.org, and feature an in-depth interview with City Council Speaker Corey Johnson.

Thursday
At 8 a.m. Thursday, Crain’s will host Melissa DeRosa, Secretary to Governor Cuomo, for a “Business Breakfast” at the New York Athletic Club, discussing “the Cuomo administration’s agenda, the new political dynamic in Albany and her experience as the governor’s top aide.”

At the City Council on Thursday:
--The Committee on Housing and Buildings will meet at 10 a.m. to discuss proposed laws related to elevator safety. These include requiring landlords to post signs in elevators on safety protocol in the event of stoppages and requiring residential landlords to provide “reasonable accommodations” to any resident with disabilities in the event of a stoppage lasting longer than a day.
--The Committee on Consumer Affairs will meet at 10 a.m. to discuss several proposed laws related to food vending, including laws increasing the number of street food vending permits, creating a dedicated law enforcement unit for enforcing vending laws, and creating a “street vendor advisory board” to examine existing statutes and regulations for “duplicative, unclear, or unnecessary provisions.”

At 5:30 p.m. Thursday, the Housing Justice for All coalition will lead a “Moral March for Housing”: “Join community, faith, & labor leaders to fight evictions. We'll have a rally at Abyssinian Baptist Church, followed by a march to the State Office Building to hold a vigil for those who have been evicted thanks to weak tenants' rights and unaffordable rent. 100 New Yorkers are evicted every day. It's now or never for housing justice— We need Universal Rent Control!” Participating groups include New York Communities for Change, Met Council on Housing, VOCAL-NY, and others.

At 10:45 a.m. Thursday in Manhattan, Comptroller Tom DiNapoli will join “Cardinal Timothy Dolan, Monsignor Kevin Sullivan and RWDSU President Stuart Appelbaum at a media availability to discuss a mission trip they are taking to the Northern Triangle countries of El Salvador, Guatemala and Honduras, Catholic Charities Immigration Services, 80 Maiden Lane, New York, N.Y.”

At 6:30 p.m. Thursday, State Senator John Liu and colleagues will hold a “community forum” on school diversity and specialized high school admissions at Queens Borough Hall.

Friday and the weekend
Mayor de Blasio may make his weekly appearance on WNYC’s The Brian Lehrer Show on Friday at 10 a.m.

***
Have events or topics for us to include in an upcoming Week Ahead in New York Politics? E-mail Gotham Gazette executive editor Ben Max any time: This email address is being protected from spambots. You need JavaScript enabled to view it. (please use "For Week Ahead" as email subject).

***
by Ben Brachfeld and Ben Max
@GothamGazette

Gov. Cuomo outlines his agenda (photo: governor's office)

Governor Andrew Cuomo made a triumphant appearance at a Manhattan luncheon hosted by the Association for a Better New York on Thursday, celebrating a raft of accomplishments achieved in partnership with the Democrat-controlled state Legislature over the last three months and in the recently approved state budget.

“Understanding the forces that we were dealing with, we laid out a very robust agenda last December,” he said, referring to a large budget gap that he blamed on federal policies hostile to New York, “a 100-day agenda that took the bull by the horns and addressed the issues and we said we would get it done in 100 days. We got it done and I again want to applaud the Legislature for making some of the toughest, most meaningful reforms that this state has ever made.”

But did they ‘get it done’? Was Cuomo’s entire “first 100 days” agenda for the first year of his third term -- and the first legislative session of his gubernatorial tenure with Democrats in control of both houses of the Legislature -- accomplished? Not quite. Just a few days earlier, with a budget deal reached and bills being voted through by the Assembly and Senate, Cuomo held a press conference in Albany and used slightly more nuanced language about the degree to which he had moved that ambitious agenda, though even then he exaggerated.

In December, five weeks after Cuomo was comfortably reelected for a third term, he released a list of priorities that he said that he would focus on in the first 100 days of 2019. It was an agenda dealing with taxes, affordability, reproductive rights, gender equality, gun control, immigrant rights, environmental protections, good government policies, criminal justice reform, and more. Many aspects were long-held progressive priorities blocked by Republicans who had controlled the state Senate for Cuomo’s first two terms. Some items mentioned specific legislation while others included only broader goals.

The new Democratic dominance in Albany appeared to make virtually any progressive goal possible, depending in large part on the governor’s willingness to continue his move leftward, but also how much agreement on the particulars was achievable among a wide array of legislators from throughout the state, even if they espoused similar values.

Though there has been infighting and hand-wringing, and perhaps more moderate compromise than some Democratic activists and officials expected, it has been a successful and uncharacteristically productive legislative session, both before and during the budget, for Democrats so far this year in Albany, and as Cuomo’s 100th day hits on Wednesday, he’ll have checked most of the boxes in his 20-point agenda, though he is mischaracterizing the extent to which they’ve been successful given several bigger issues remain unresolved.

Cuomo began his victory lap on the 100 days agenda before the ink on the 2020 state budget was even dry. “[W]e we got every element accomplished, virtually,” he said at a March 31 news conference, announcing the budget agreement reached with the state Legislature, members of which were debating and voting through budget bills all the way through the morning of April 1.

“We have not legalized cannabis, adult use cannabis. The political desire is there, I believe we will get it done,” he said, acknowledging perhaps the biggest policy goal he had set that was not achieved in the first 100 days of his term -- though there are several others.

It was undoubtedly a productive three months. Several major voting and campaign finance reforms were approved early on, followed by protections for the LGBTQ community, women’s reproductive rights legislation, new gun control laws, and broad criminal justice reforms.

A closer look at what parts of his agenda Cuomo did and did not get done in his first 100 days of term three, including through the budget:

“Ensure a Progressive Tax System”
Cuomo pledged to protect New Yorkers from the effects of the recent federal tax code overhaul, which gave large tax cuts to the wealthy and to corporations but spelled serious complications for New York and other high-tax states (and is the subject of litigation brought by New York and others).

Following through on the promise of a “progressive tax system,” the state budget agreement included a five-year extension of the state’s millionaire’s tax though not an expansion of it as the state Assembly majority had sought. Cuomo was also successful in making the state’s 2% cap on annual property tax increases (outside New York City) permanent even though it was not due to expire until next year.

Though it wasn’t part of Cuomo’s agenda, the governor and the Legislature also wound up passing a “mansion tax” that adds a surcharge on sales of homes valued over $2 million in New York City, the revenue for which will go toward the MTA.

“Cut Middle Class Taxes while Fighting to repeal SALT”
The governor has been particularly critical of the Trump tax cuts for reducing the State and Local Tax (SALT) deduction to $10,000, which disproportionately hurt high-tax, Democrat-heavy states like New York, Connecticut, and California. He’s promised to tour the country to rally against the policy and has attempted to create workarounds in state law to help New Yorkers reduce their tax burden, though those have failed. Litigation is ongoing, however.

After the new state budget was approved, Cuomo took credit for not only pushing the property tax cap but also for continuing the phase-in of a middle-class tax cut that was previously approved (though Cuomo has presented it as a new cut).

“We lowered the middle-class tax rates again up to $300,000 which is an expansive view of the middle class,” he said. “We said that we had to combat SALT. I am doing everything I can to combat SALT. I've met with the President, I'm working on organizing governors across the country. We came up with a number of alternatives to SALT through the tax code which the federal government rejected. I've been speaking with Speaker Pelosi and I will continue this fight, which I believe is the most important fight for the state of New York until we get it done.”

Prospects for the repeal of the SALT cap are grim, at least while Republicans control the presidency and Senate.

“Protect Quality, Affordable Health Care”
The state Legislature and governor took several actions over the last few months to, they say, strengthen the state’s health care system, as Trump and some Republicans in Congress have continued to threaten to repeal and replace the Affordable Care Act.

“New York State has significant legal power because we regulate the insurance industry. And we have codified many of the protections of Obamacare, so regardless of what President Trump does, we know that we have a healthcare program in New York that will protect New Yorkers,” Cuomo said on March 31. As he noted, the budget agreement put ACA protections, including the state insurance marketplace and coverage of pre-existing conditions, into state law.

The agreement also included $550 million in increased Medicaid funding, which Cuomo had earlier proposed cutting back as the state faced a $2.3 billion revenue shortfall.

“Codify Reproductive Rights”
Among the bills that the Democratic Legislature quickly advanced in the first month of the legislative session were protections of women’s reproductive rights, which Republicans had blocked for years. For Democrats, passing those laws was particularly pressing after the balance of the Supreme Court tilted in favor of conservatives with the confirmation of Brett Kavanaugh last year.

On January 23, the 46th anniversary of the Supreme Court’s Roe v. Wade decision, which grants the federal right to abortion, the state Legislature passed the Reproductive Health Act, which codified Roe abortion protections into state law, and the Comprehensive Contraception Care Act, which requires health care insurers to cover the cost of contraception.

The Legislature also approved the “boss bill,” which prohibits employers from discriminating against employees based on reproductive health decisions. Cuomo quickly signed all three into law.

“Combat Gun Violence”
Strengthening the state’s gun laws has been a signature issue for Cuomo, who worked with Democrats and Republicans to enact an assault rifle ban and other regulations shortly after the Sandy Hook mass shooting of 2012. In January, the state Legislature passed and the governor signed several more gun control measures including banning bump stocks, extending the background check waiting period for buying a gun from three days to ten days, and the Red Flag Law, which allows a judge to order the seizure of firearms from individuals (and their households) deemed a threat to public safety and prohibits those individuals from purchasing a weapon.

“Launch a $150 Billion Infrastructure Plan”
Cuomo expanded the state’s massive infrastructure program with several new investments in the 2020 fiscal year budget. The $150 billion capital investment program is expected to create 675,000 jobs over the next five years, Cuomo has said, by renovating and building new airports, bus and train stations, highways, tunnels, bridges, housing, and other facilities across the state.

At the ABNY speech, Cuomo called it the “the largest building program in the United States of America.” He showed a powerpoint slide with a long list of projects that will either be completed or started during his third term, and added, “We get this done, we will have transformed New York. Think about all those projects and think about how comprehensive they are. New airports, new rail, new bridges, new power systems. It will be a new New York.”

“Fund and Restructure the MTA While Easing Traffic in New York City's Business District”
After years of being rejected by both Democrats and Republicans, congestion pricing was embraced this year by the state Legislature and Cuomo as a way to create a sustainable revenue source for the MTA and to cut down on Manhattan gridlock. The details of the plan have yet to be worked out, however, and it will only go into effect after December 2020, but the program is expected to raise as much as a $1 billion annually, which the MTA will be able to leverage to raise another $10 billion by issuing bonds, for an expected total of $15 over five years.

Additionally, Cuomo and the Legislature decided to dedicate taxes from the new “mansion tax” as well as portions of expected proceeds to New York City and State from an expansion of the internet sales tax. There will still be some portion of the coming MTA capital plan for 2020-2024 that must be covered, and the MTA’s annual operating budget is in a tenuous position.

Although Cuomo had also promised to reform the MTA’s management structure (mostly to give him greater control even though he already effectively controls its every move) there were few immediate changes to the agency included in the budget. There are prospective ones, though: MTA has been mandated to issue a reorganization plan by June, will be required to undergo an “independent forensic audit and efficiency review,” will have to implement a 20-year capital needs assessment starting in 2023 and publicly report metrics on performance, among other reforms.

“Ensure Education Equity”
The final budget agreement included about $27.9 billion in education funding, marking a $1 billion increase in aid to school districts, far lower than what the state Board of Regents and some legislators had advocated for. It was slightly more than Cuomo had proposed himself, but given the state’s fiscal picture Cuomo appeared set against a larger increase, arguing that the state is already providing excessive education aid to localities and that the real need is more funding to the poorest schools.

Cuomo put forward a new “Education Equity” formula through which he said 70% of new aid would go to poorer schools, not just districts. “This says in the budget poor schools must be prioritized from a funding point of view by the district. And they must publish the numbers of how much they have funded the schools within their district,” Cuomo said of the deal that was reached, which fell short of what he had outlined initially but appears may help further the goals he laid out.

“Pass the Dream Act”
The DREAM Act is meant to provide tuition assistance to “Dreamers,” undocumented immigrants who came to the United States as children, and it was passed by the state Assembly and Senate in January. The bill has yet to be sent to the governor for his signature, even though he has said he will sign it, because of concerns about the broad language included in it, according to the Albany Times Union, but the state budget provides $27 million in funding to implement it.

“Ensure Clean, Safe Drinking Water for All”
The state budget added $500 million in additional funding for clean water infrastructure, bringing the state’s total investment to $3 billion.

“Improve Our Democracy”
The state Legislature passed several voting and elections reforms this year that are meant to improve voter turnout, including approving ten days of early voting (which was funded at $10 million in the budget), consolidating the state and federal primary elections in June, allowing pre-registration of 16- and 17-year-olds, universal transfer of voting registration, and beginning the process of amending the state constitution to allow no-excuse absentee ballots by mail and same day voter registration.

Cuomo had also pushed for automatic voter registration and making Election Day a state holiday but was unsuccessful. The budget agreement did however provide three hours (up from two) of paid leave on election day to allow people to vote, expanded voting hours in upstate New York, and also included $14 million in funding for electronic pollbooks, which were approved by the Legislature and are said to be essential to carrying out early voting.

“Protect Public Sector Unions”
Following the Supreme Court’s decision in Janus v. ACFME, which overruled compulsory union fees for non-union workers on First Amendment grounds, Cuomo promised to protect New York’s labor unions from its adverse effects. The state budget extended Janus protections approved by the state -- including protecting personal contact information of public employees from being disclosed -- to all local governments.

“Pass the Child Victims Act”
After more than 15 years of repeated failure, the Legislature finally passed with near unanimous support and Cuomo signed the Child Victims Act, which extends the statute of limitations on child sexual abuse and gives victims the ability to seek justice as adults, while also including a one-year “look back window” that briefly suspends the statute of limitations.

“Protect LGBTQ Rights”
The Gender Expression Non-Discrimination Act (GENDA) was another bill stonewalled by Republicans for years that Democrats approved this year. The bill prohibits discrimination based on gender identity and was a top priority for LGBTQ activists. The state Legislature also banned the controversial and discredited practice of “conversion therapy” for minors.

“Ensure Fairness in the Criminal Justice System”
In budget negotiations, Cuomo repeatedly said he would not sign a budget that did not include several key criminal justice reforms including ending cash bail, and enacting speedy trial and open discovery reform. The final agreement did not completely do away with cash bail but did significantly curtail it, while implementing the other reforms as well.

There are parts of the 100 days agenda that haven’t been accomplished yet and are expected to be on the docket over the next three months as the legislative session continues.

More on what Cuomo did not get done:

“Legalize Adult Use of Recreational Marijuana”
Cuomo’s embrace of recreational marijuana legalization, which could raise an estimated $300 million in revenue annually, was unsuccessful as the state Legislature could not come to an agreement with him over how to implement it and how much of the revenue raised should go to mass transit (as Cuomo intended) or to communities hurt by marijuana enforcement.

”It is complicated to come up with a program that does it and protects public safety, and does economic empowerment for communities that have paid the price,” Cuomo said. “And the best way to do it was not in the race of the budget. And that is nothing new, we've been talking about it for weeks. But that's the one item on the list that we did not get to yet.”

“Keep Housing Affordable for New Yorkers”
Cuomo has touted a $20 billion affordable housing plan though it’s hard to gauge its results. But the more pressing issue for Democrats this year is the effort to reform rent regulation laws that expire in July. Cuomo has supported ending vacancy decontrol, eliminating preferential rent rules, and also modifying rent increases from Major Capital Improvements (MCI). Faced with a somewhat diminished but nonetheless powerful real estate lobby, rent regulations will likely be a controversial subject for the Legislature and governor. Cuomo included reforming rent regulations in his 100 days agenda, but neither he nor the Legislature ever appeared set on dealing with them before the budget -- the regulations expire in June, and always appeared as if they would be one of, if not the most controversial issues in the post-budget session.

“Enshrine Gender Equality into Law”
Cuomo promised to push for the passage of the Equal Rights Amendment, which would prohibit discrimination based on sex. Placing it in the state constitution would require the current Legislature to pass a resolution, which would then have to be passed by the next Legislature seated in 2021 and subsequently approved by voters. Though the amendment has passed in the Assembly previously, and State Senator Julia Salazar has introduced a resolution in the Senate, it has not moved through the Legislature.

“Increase Trust in the Democratic System”
The governor pledged to end the so-called LLC loophole in state campaign finance law, which allows limited liability companies to make donations without disclosing their donors. Though the state Legislature did significantly curb LLC donations, limiting them to a maximum of $5,000, and added new disclosure requirements, the loophole remains open to an extent. Cuomo has dubiously claimed otherwise.

Cuomo also pushed to ban corporate contributions, which did not pass. He also advocated for ending outside income for lawmakers, which was not done directly by the Legislature but was effectively accomplished by a state commission that recommended pay increases for legislators while restricting outside income (those outcomes are the subject of litigation).

On creating a system of public financing of elections, the Legislature and governor passed a broad agreement to move ahead but punted, charging a commission to come up with a program by December with no specific mandates for how a public financing system would be structured. Advocates have called for a system modelled on the one currently in place in New York City.

“Launch the Green New Deal”
Cuomo has also claimed to have launched a Green New Deal for New York but even his version that was included in his executive budget proposal, which falls far short of what advocates and some state legislators have pushed for, was not accomplished in the budget.

Cuomo’s bill would have set the state’s energy sector on a path to becoming carbon neutral by 2040, while environmental activists are pursuing the Climate and Community Protection Act, which mandates that the entire state economy be carbon neutral by 2050. Cuomo did celebrate certain environmental and clean energy investments as well as a “ban” (with carve-outs) on single-use plastic bags, a major victory for supporters of the measure to help reduce New York’s plastic bag use and waste.

[READ: 10 Issues to Watch in Albany's Post-Budget Legislative Session]

Note: this article has been corrected to note that Cuomo's 100th day of his new term is Wednesday April 10, not Monday as originally stated.

(photo: @zellnor4ny)

At a Sunday press conference, following his overnight announcement of a $175.5 billion budget deal, Governor Andrew Cuomo heralded a criminal justice reform agreement with the Legislature, and thanked one member of the Assembly in particular. “I want to applaud Assemblymember Latrice Walker who really was very helpful and very constructive, and understood the tensions,” he said of the Brooklyn representative.

Cuomo was referring to the especially contentious issue of bail reform. For weeks he and legislators had debated how far to go in amending a system intended to secure defendants return to court, but which in reality has catalyzed the disproportionate pretrial incarceration of poor black and Hispanic New Yorkers.

Queens Senator and Majority Leader Michael Gianaris managed to collect 25 co-sponsors for his advocate-backed bill to eliminate cash bail entirely, with the option of pretrial detention only for certain violent felonies. Governor Cuomo and Assembly Speaker Carl Heastie also previously pledged to eliminate cash bail this session.

But prosecutors and a faction of Democrats insisted that judges would still need discretion to remand defendants deemed dangerous. What they viewed as crucial for public safety was, to Gianaris and his allies, tantamount to replacing cash bail with a system just as susceptible to racial bias.  

The ultimate compromise -- accompanying reforms intended to speed up trials and boost early defendant access to evidence -- resembles a Walker bill that passed the Assembly last session. It eliminates cash bail for most misdemeanors and nonviolent felonies, ensuring pretrial freedom for what amounted to about 90 percent of 2018 arrests statewide. Conditions on that freedom could include mandatory check-ins or electronic monitoring.

“The consensus among people who care about reform,” Gianaris told Gotham Gazette, “was, let’s take a solution that covers the vast majority of people, rather than risk making it worse for the remainder.”

‘Challenging’ Process
Recent pressure from Cuomo, Long Island Senate Democrats, and the District Attorneys Association of New York (DAASNY) ultimately shifted negotiations towards the Assembly framework, according to legislators and advocates who observed these developments. All three parties -- with Democratic Senator Todd Kaminsky negotiating on behalf of the so-called “Long Island Six” -- called for some amount of judicial discretion to remand people deemed dangerous to a specific person or persons (language that appeared in Cuomo’s original budget proposal).

Fearful that this discretion would encourage more pretrial incarceration -- not less -- Gianaris says that he and Senate co-sponsors began discussing alternatives with Assembly Democrats, led by Walker. Her 2017 legislation had appeased Assembly Democrats who saw bail as an important tool to separate defendants from survivors of domestic violence. At least with bail, she’s argued, defendants still have an avenue -- if they can afford it -- to pretrial release.

“It was challenging,” Walker said in a phone interview, of the negotiations. “Because it has a wonderful ring to be able to say, ‘We eliminated cash bail in NYC.’ And that’s the ultimate goal, but at what price would we have claimed that accomplishment?”

Kaminsky’s office did not respond to multiple requests for comment, but the senator and former federal prosecutor told the New York Law Journal in the midst of negotiations last month that he was “trying to make sure we’re reforming the system while keeping the public safe.”

Cuomo Counsel Alphonso David did not elaborate on the governor’s role in negotiations, telling Gotham Gazette that, ultimately, the dangerousness question “did not have to be addressed at this time.”

“The perfect would've been the whole elimination of bail, but I don't believe in making the perfect the enemy of the good,” Cuomo told WNYC’s Brian Lehrer on Monday, calling the final agreement, “the most historic criminal justice reform in modern history in the state."

Mayor Bill de Blasio, who has endorsed dangerousness considerations in the past, told anchor Errol Louis on Monday’s “Inside City Hall” that he is “obviously thrilled” about the bail agreement, which he predicts will “supercharge” efforts to decrease New York City’s jail population. Numbers have been dropping precipitously for decades -- essential to a city plan to close the Rikers Island jail complex.

Advocates with the FREEnewyork campaign, a coalition of more than 150 grassroots groups that backed the Gianaris bill (carried by Danny O’Donnell in the Assembly), say they are very pleased that this compromise will greatly decrease pre-trial detention. As of September, more than a third of the 8,200 people in New York City jails were held pre-trial on misdemeanors or nonviolent felonies.

The state budget outcome “dodged a lot of bullets,” said JustLeadershipUSA organizer Katie Schaffer, because “there is not any sort of generalized consideration of dangerousness or risk to public safety that could exacerbate racial disparities.”

But there is lingering frustration. With Democratic control in both houses of the Legislature, advocates had been hopeful criminal justice reform would be handled outside of the harried budget process where horse-trading often happens. “It seems obvious that passing significant policy at 3 a.m. on a Sunday morning is not good process,” said VOCAL-NY organizer Nick Encalada-Malinowski.

Lingering Concerns
For defendants charged with sexual assault misdemeanors and most violent felonies, judges will still have the option to set bail, putting poor defendants at a disadvantage. Certain felonies in this category will also be eligible for remand, including witness intimidation and terrorism-related charges.

Last year’s Walker bill would have required an evidentiary hearing for anyone eligible for pretrial detention. Judges would have had to review evidence within days of arrest and “explain themselves a bit” before sending defendants to jail pre-trial, Schaffer explained. Advocates saw this as a useful check, considering many convictions stemming from violent felony arrests -- 31% statewide in 2017 -- are misdemeanors. But these hearings were negotiated out of the budget agreement.

“Given the history of criminal justice reform, it is not a surprise that they chose this middle path that greatly benefits some and excludes others,” said Nicole Triplett, policy counsel at the New York Civil Liberties Union. This split, she said, fails to “fully realize the constitutional promise that every person be treated as innocent until proven guilty.”

The budget bill also requires desk appearance tickets for most misdemeanors and Class E felonies -- including promoting gambling and criminal contempt -- a measure Gianaris says he is proud of (though advocates say they’ll be watching how police officers use their discretion to arrest in some cases).

Gianaris’ bill did not address the question of electronic monitoring, while the adopted budget states that only certain defendants are eligible -- those charged with a felony, domestic violence or sexual assault misdemeanor, or with a recent violent felony conviction. Anyone ordered to wear an ankle monitor cannot bear the cost of that device.

These guidelines, which extend to charges that are not eligible for pretrial detention, are concerning for JoAnne Page, president of the Fortune Society, a nonprofit that offers reentry services. “The fear is electronic monitoring will be utilized excessively and indiscriminately on people – mostly people of color who come from the same low-income neighborhoods in New York City that are disproportionately impacted by the criminal justice system – who never would have been held on bail in the first place,” she warned.

The budget reforms drew sharp criticism from DAASNY President David Soares. “The New York State Legislature, along with Governor Cuomo, has passed the most reckless bail reform statute in the country,” Soares told Gotham Gazette, arguing that prosecutors have lost a key mechanism for removing dangerous defendants from the general public. “Our greatest concern first and foremost is for victims of crime.”

Cuomo, who ultimately insisted that criminal justice reform be addressed in the budget, told reporters this weekend that he plans to return to the bail question -- and outcomes for people charged with violent felonies, specifically. “That's something we're going to continue to work on,” he said Sunday.

Assembly Speaker Carl Heastie also told the New York Law Journal Monday that “we are going to get to the finish line to make it a completely cashless bail system.” Gianaris says that he is still committed to this outcome, as well.

“I think advocates will have to keep these issues very present,” Schaffer predicted. “Because it is very easy for legislators to feel done with an issue, to move on to other issues.”

Ben Max, left, of Gotham Gazette, and Jarrett Murphy, right, of City Limits

April 3, 2019 - Max & Murphy Podcast: 10 State Budget Takeaways

There's a new state budget, with $175.5 billion in spending and a lot of policy included. We break down some of the key takeaways.

Listen to the conversation and let us know what you think -- we're on Twitter @TweetBenMax and @JarrettMurphy. You can listen to the show through the embedded audio below or download the episode wherever you get your podcasts, under "Max & Murphy," and listen to Max & Murphy live on Wednesdays at 5 p.m. on WBAI radio, 99.5FM or wbai.org

(photo: Benjamin Kanter/Mayor's Office)

April 3, 2019 - Max & Murphy Podcast: The Debate Over Rent Regulations

Perhaps the most contentious post-budget issue in Albany's state legislative session that will extend from April through much of June will be rent regulations. Those regulations apply to roughly 1 million New York City apartments home to roughly 2 million people, and include things like the "vacancy bonus," vacancy decontrol, and major capital improvements. But advocates and some legislators are pushing for not just slight modifications and extension of the regulations that are set to expire this year, but sweeping tenant-friendly changes. Some are also calling for the extension of rent regulation statewide, which would apply to newly-constructed affordable housing for the future. One on side of the issue is the landlord lobby, on the other side, the tenant lobby. We were joined by a leading representative of each: first, Frank Ricci, Director of Government Affairs for the Rent Stabilization Association, then Michael McKee, treasurer of TenantsPAC.

Listen to the conversation and let us know what you think -- we're on Twitter @TweetBenMax and @JarrettMurphy. You can listen to the show through the embedded audio below or download the episode wherever you get your podcasts, under "Max & Murphy," and listen to Max & Murphy live on Wednesdays at 5 p.m. on WBAI radio, 99.5FM or wbai.org

What's The [Data] Point? Episode 70 -- $175.5 billion, Breaking Down the New State Budget, with Dave Friedfel and Patrick Orecki of CBC [You can download What's The [Data] Point? wherever you get your podcasts, including on iTunes]

New York State has a brand new $175.5 billion budget for the fiscal year that began April 1. Citizens Budget Commission experts Dave Friedfel and Patrick Orecki joined the podcast to break down the new spending plan and what it means, from congestion pricing to new taxes to education aid and more.

Listen to the conversation and let us know what you think: Ben Max of GG (@TweetBenMax), Maria Doulis of CBC (@MariaDoulis). Listen below or download wherever you get your podcasts!