After delay, state to fund mandated redistricting

Protesters attend a rally for “Fair Maps” on March 26, 2019, in Washington, D.C. New York’s Independent Redistricting Commission is waiting to start remapping elective boundary lines pending the allocation of state funding delayed by budget shortfalls caused by COVID-19 pandemic spending. Tasos Katopodis/Getty Images/TNS

ALBANY — The group redrawing the state’s Senate, Assembly and congressional districts will receive $1 million lawmakers allocated for the work in previous state budgets, officials said, after potentially unconstitutional funding delays set the commission back several months in completing the mandated elective maps.

Reapportionment of the Legislature’s 63 Senate and 150 Assembly districts occurs every decade following the U.S. Census.

The state is expected to pay the 10-member Independent Redistricting Commission after months of delays in funding caused by New York’s mounting $15 billion revenue shortfall due to the coronavirus pandemic.

“We have determined a mechanism for getting the funding to the commission so it can move forward with hiring staff and paying for supplies, and we are implementing it as quickly as possible,” state Division of the Budget spokesman Freeman Klopott said in a statement Thursday.

Klopott would not specify when the commission will receive the $1 million, but reiterated “as quickly as possible.”

The Legislature appropriated a combined $1 million for the commission in the Department of State’s portion of Aid to Localities budget, with $250,000 in the 2019-20 budget and $750,000 in Fiscal Year 2020-21, which ends March 31.

Commission co-executive directors Karen Blatt and Douglas Breakell have asked Budget Division and State Department officials about the stalled funding for months, but officials have provided limited or no answers to their queries.

Budgetary issues have been a focus of redistricting meetings since the group first convened Sept. 30.

“This mechanism is important for our budgeting,” Breakell said Thursday of DOB’s announcement to fund the commission. “It’s good news to hear they’ve identified a mechanism — I’d just like to know what that’s going to be.”

To date, officials have not notified Breakell, Blatt or the 10 commissioners of the decision to release the $1 million.

Blatt did not have an update on the group’s finances during a virtual meeting Tuesday afternoon — the third meeting this month directors noted continued silence from state departments.

Representatives from Gov. Andrew Cuomo’s office did not specify when commissioners will receive an update from officials.

“I know [Division of the Budget] has been working on it and expect a resolution soon,” Rich Azzopardi, the governor’s senior adviser, said in a statement Thursday.

Blatt and Breakell have completed tasks for the commission since late summer without pay.

The co-executive directors are set to each be paid an annual salary of $145,000 for their commission work, and will receive retroactive pay when state finances come through.

Blatt and Breakell each said Thursday they have not calculated the number of hours they’ve worked for the commission to date without receiving a paycheck.

“We have spent significant time in conversations,” Breakell said.

State funding has been withheld from a number of education and health care facilities and programs for much of the year as New York estimates a minimum $15 billion revenue shortfall and $10 billion gap because of unprecedented pandemic spending.

The shortfall is expected to mount to more than $30 billion over two years and more than $62 billion over four years.

Some commissioners suggested Dec. 10 to seek legal action if the state persists in withholding commission funds, questioning the constitutionality of the delay, which has prevented the start of redistricting work mandated in the state constitution.

An independent redistricting commission must be appointed in New York every 10 years to handle redrawing of legislative lines, per Article III, Section 5-b(a) of the state constitution.

A strong legal argument can be made that officials are violating the state constitution by withholding money from a constitutionally obligated entity, said Adam Rosenblum, an attorney with Rosenblum Law, which has offices in Albany, Manhattan and Buffalo.

“By canceling the [$1 million] appropriation ... it does seem like the state budget director would violate the constitution,” Rosenblum said. “Theoretically, the budget director could argue that the budget contains the appropriations, so there’s no constitutional violation even if they’re canceled.

“But this argument seems hypertechnical and weak,” he added. “...does the budget really contain an appropriation if the budget lets the director not deliver the appropriation? Which seems like it would be a violation of the constitution.”

Legal precedent leans in the commission’s favor, according to Rosenblum.

The state Court of Appeals allowed a 1995 complaint in Campaign For Fiscal Equity v. State alleging the state’s insufficient funding for certain New York City schools violated the state constitution that requires them to operate.

“It was too early in the litigation process to definitively say there was a violation,” Rosenblum said. “But the decision did say that it was possible for the state Legislature to violate the constitution by providing insufficient funding to schools. Similar logic could apply to the failure to fund the redistricting commission, which is also guaranteed funding by the state constitution.”

Officials slashed $10 billion from the Aid to Localities budget where the commission’s funding comes from, according to the state’s mid-year financial plan update on budget.ny.gov.

“It seems likely that the Independent Redistricting Commission was one of these cuts, though it’s hard to say for sure; the document doesn’t enumerate every single cut,” Rosenblum said.

Cuts to previously legislated funding are permissible under state law.

On March 2, the Assembly and Senate passed Senate bill S7919, which amended the state’s disaster law to include disease outbreak in response to the COVID-19 pandemic, allowing the governor to “temporarily suspend any statut e, local law or ordinance” to cope with the disaster.

“Gov. Cuomo has used this power to cancel appropriations in the New York state budget,” Rosenblum said.

Commissioners requested the owed $1 million in letters Sept. 8 and Dec. 10 sent to Gov. Andrew Cuomo; Assembly Speaker Carl Heastie, D-Bronx; Senate Majority Leader Andrea Stewart-Cousins, D-Yonkers; Assembly Minority Leader William Barclay, R-Pulaski; and Senate Minority Leader Rob Ortt, R-North Tonawanda. Commissioners copied the letter to Budget Director Robert Mujica and State Secretary Rossana Rosado.

Ortt responded with a Dec. 14 letter to the commission, copying Mujica and Rosado, that the state should immediately release the full appropriated $1 million.

“The governor and legislative majorities should honor the will of the voters and immediately release this long, overdue funding,” according to the Senate minority leader’s letter.

Other legislative leaders did not respond.

The League of Women Voters also sent a letter this month urging officials to fund the commission.

Assembly Leader Barclay agrees with commissioners, he said Wednesday, as the $1 million was previously appropriated and needs to be released to avoid delaying the important redistricting work.

“The unfortunate reality is that the commission can’t proceed without the necessary resources,” Barclay said in a statement. “The Redistricting Commission has a substantial job ahead and a tight time frame in which to complete it. More holdups are just going to make that challenge even greater.”

Democratic representatives in the Senate and Assembly Majority conferences did not return requests for comment about the redistricting commission’s correspondence or the budgetary delay.

Financial issues have stalled commissioners from ironing out logistics, including hiring staff, designating a website, work space and acquiring necessary technological and communications equipment before starting to redraw legislative districts.

The commission does not have a website, phone system or brick-and-mortar location to date. “Are they going to charge us rent or provide a place for us?” Commissioner Charles Nesbitt asked of the state at Tuesday’s meeting. “There are so many questions here because there is no precedent.

“We’ve done nothing because they’ve given us no way to do it in getting ourselves appropriately organized in what the mandate is.”

Maps must be submitted to the Legislature in January 2022 and are supposed to be in place for the 2022 elections.

Breakell anticipates completing the state’s redistricting work within a year will cost more than the Legislature’s appropriated $1 million.

“We feel the additional funding may be needed for our budget and $1 million will not be enough for us to complete our duties,” he said. “Karen and I have been working together to really put us in a position where we’re not behind when we finally start. There’s so much work that needs to get done.”

Time is growing short for commissioners to develop a tentative timeline and complete budget requests for the state’s Fiscal Year 2021-22 spending plan, which deadlines March 31, before Cuomo releases an initial proposal next month.

“We’re going into a really tough budget time,” Breakell said. “We’re going to ask for additional money for us to do our jobs the right way.”

Commissioners plan to negotiate a threshold and itemized request during their next meeting Tuesday and submit it to the Budget Division by Dec. 31 while they continue to wait for initial state payments.

Commissioner George Winner, a Republican and former senator and assemblyman who represented parts of the Finger Lakes region for 30 years, encouraged Blatt and Breakell to be prepared with detailed figures before meeting with Budget Division officials.

“I think we’re going to at least need in the neighborhood of the $5 million range,” Winner said, but added commissioners, like legislators, do not have control over negotiations.

“DOB is not going to say you need $10 for this ... or for that, either way, they want some kind of ballpark,” Winner continued. “I don’t know what DOB will do, but at the same time, it’s clear I am not comfortable leaving my hands in the fate of the Legislature to do the right thing come April 1.”

Ongoing delays in state funding have left the 10-member commission of Democratic, Republican and politically independent appointees months behind schedule.

The commission’s first maps must be publicized by Sept. 15, 2021. The new state legislative and U.S. congressional lines are supposed to be in place for the 2022 elections.

“I think it will be very, very difficult to staff this operation in good faith with people without a better knowledge of affirmation that we will be properly funded,” Winner said.

The state’s redistricting process changed after New York voters overwhelmingly approved a constitutional amendment in 2014 to change the redistricting process beginning with the 2020 census.

“The voters wanted this to happen, and unfortunately, we’re not able to do our jobs without this funding,” Breakell said. “We are an independent commission and we are working to make sure that we do the best to fulfill the state constitution.”

Census Bureau data released this week suggests the state could lose up to two congressional seats of its current 27 seats in the U.S. House of Representatives. New York lost 126,335 people between July 2019 and July 2020.

“These things have to be taken into account when we’re doing our job, and we can’t do our job because we’re not officially there,” Breakell added.

The U.S. Census Bureau anticipates delays in releasing the updated decennial population count because of the coronavirus pandemic, potentially causing further delays for commissioners.

The commission is next scheduled to meet at 2 p.m. Dec. 29.

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