S T A T E   O F   N E W   Y O R K
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                                  5271

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            February 15, 2011
                               ___________

Introduced  by  M.  of  A.  GALEF,  CLARK, SCHIMMINGER, PAULIN, LATIMER,
  DINOWITZ, CASTRO, SPANO, SCHROEDER, CALHOUN, GIGLIO, FINCH  --  Multi-
  Sponsored  by  --  M.  of  A. BARCLAY, BURLING, BUTLER, CONTE, CORWIN,
  CROUCH,  DUPREY,  JORDAN,  KOLB,  J. MILLER,  MOLINARO,  OAKS,   RAIA,
  REILICH,  SAYWARD,  TEDISCO, THIELE, TOBACCO -- read once and referred
  to the Committee on Governmental Operations

            CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY

proposing an amendment to article 3 of the constitution, in relation  to
  creating a non-partisan apportionment commission

  Section  1.  Resolved (if the Senate concur), That sections 4 and 5 of
article 3 of the constitution be amended, and a new section 5-b be added
to read as follows:
  S 4. Except as herein otherwise provided, the federal census taken  in
the  year nineteen hundred thirty and each federal census taken decenni-
ally thereafter shall be controlling as to the number of inhabitants  in
the  state  or any part thereof for the purposes of the apportionment of
members of assembly and readjustment or alteration of senate and  assem-
bly  districts  next  occurring,  in so far as such census and the tabu-
lation thereof purport to give the information necessary therefor.  [The
legislature]  AN APPORTIONMENT COMMISSION, by law, shall provide for the
making and tabulation by state authorities  of  an  enumeration  of  the
inhabitants of the entire state to be used for such purposes, instead of
a  federal  census,  if the taking of a federal census in any tenth year
from the year nineteen hundred thirty  be  omitted  or  if  the  federal
census  fails  to  show  the number of aliens or Indians not taxed. If a
federal census, though giving the requisite information as to the  state
at  large,  fails to give the information as to any civil or territorial
divisions which is required to be known for such purposes, the [legisla-
ture] COMMISSION, by law, shall provide for such an enumeration  of  the
inhabitants  of  such parts of the state only as may be necessary, which
shall supersede in part the federal census and  be  used  in  connection
therewith  for such purposes.  The [legislature] COMMISSION, by law, may

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD89007-01-1

A. 5271                             2

provide in its discretion for an enumeration by state authorities of the
inhabitants of the state, to be used for such purposes, in  place  of  a
federal census, when the return of a decennial federal census is delayed
so  that  it is not available at the beginning of the regular session of
the legislature in the second year after the year nineteen hundred thir-
ty or after any tenth year therefrom, or if an apportionment of  members
of  assembly  and  readjustment or alteration of senate districts is not
made at or before such a session. At the regular  session  in  the  year
nineteen  hundred thirty-two, and at the first regular session after the
year nineteen hundred forty and after  each  tenth  year  therefrom  the
senate  districts shall be readjusted or altered, but if, in any decade,
counting from and including that which begins  with  the  year  nineteen
hundred thirty-one, such a readjustment or alteration is not made at the
time  above  prescribed, it shall be made at a subsequent session occur-
ring not later than the sixth year of such  decade,  meaning  not  later
than  nineteen  hundred thirty-six, nineteen hundred forty-six, nineteen
hundred fifty-six, and so on; provided, however, that if such  districts
shall  have  been  readjusted  or  altered by law in either of the years
nineteen hundred thirty  or  nineteen  hundred  thirty-one,  they  shall
remain unaltered until the first regular session after the year nineteen
hundred  forty.  Such  districts  shall be so readjusted or altered that
each senate district shall contain as nearly as may be an  equal  number
of inhabitants, excluding aliens, and IN NO CASE SHALL A DISTRICT HAVE A
POPULATION  WHICH  VARIES  FROM THE AVERAGE POPULATION OF ALL DISTRICTS,
UNLESS A POPULATION VARIANCE IS NECESSARY TO  COMPLY  WITH  ONE  OF  THE
OTHER STANDARDS SET FORTH IN THIS SECTION, AND IN NO CASE SHALL A SINGLE
DISTRICT  HAVE A POPULATION WHICH VARIES MORE THAN FIVE PERCENT FROM THE
AVERAGE POPULATION OF ALL DISTRICTS. CONGRESSIONAL DISTRICTS SHALL  HAVE
POPULATIONS  AS  NEARLY  EQUAL AS IS PRACTICABLE BASED ON THE POPULATION
REPORTED IN THE FEDERAL CENSUS TAKEN IN EACH YEAR  ENDING  IN  ZERO.  NO
DISTRICT FOR ELECTION OF MEMBERS TO THE UNITED STATES HOUSE OF REPRESEN-
TATIVES  SHALL  HAVE  A POPULATION WHICH VARIES BY MORE THAN ONE PERCENT
FROM THE AVERAGE POPULATION OF ALL CONGRESSIONAL DISTRICTS IN THE STATE.
  SUCH DISTRICTS SHALL be in as compact form as practicable,  and  shall
remain  unaltered  until  the  first  year  of  the next decade as above
defined[, and]. THE DISTRICTS OF A HOUSE SHALL BE AS COMPACT  AS  POSSI-
BLE,  CONSISTENT  WITH  THE STANDARDS LISTED ABOVE. IN NO CASE SHALL THE
AGGREGATE LENGTH OF THE BOUNDARIES OF  ALL  THE  DISTRICTS  OF  A  HOUSE
EXCEED  BY MORE THAN FIVE PERCENT THE SHORTEST POSSIBLE AGGREGATE LENGTH
OF ALL THE DISTRICTS UNDER ANY OTHER PLAN FOR THE  SAME  HOUSE  THAT  IS
CONSISTENT  WITH  THE OTHER STANDARDS CONTAINED IN THIS CONSTITUTION. IN
THE CASE OF A LOCAL POLITICAL SUBDIVISION THAT HAS A  POPULATION  SUFFI-
CIENT  TO  ESTABLISH TWO OR MORE DISTRICTS FOR ANY ONE HOUSE, THE AGGRE-
GATE LENGTH OF THE BOUNDARIES OF ALL DISTRICTS FOR THAT  HOUSE  ENTIRELY
WITHIN  THE  POLITICAL  SUBDIVISION  SHALL  NOT EXCEED BY MORE THAN FIVE
PERCENT THE SHORTEST POSSIBLE AGGREGATE LENGTH OF THE  DISTRICTS  WITHIN
THE  POLITICAL  SUBDIVISION UNDER ANY OTHER PLAN THAT IS CONSISTENT WITH
THE OTHER STANDARDS CONTAINED IN THIS CONSTITUTION.
  SUCH DISTRICTS shall at all times consist of contiguous territory, and
no county shall be divided in the formation of a senate district  except
to  make  two  or  more senate districts wholly in such county. No town,
except a town having more than a full ratio  of  apportionment,  and  no
block  in a city inclosed by streets or public ways, shall be divided in
the formation of senate districts; nor  shall  any  district  contain  a
greater  excess  in  population  over  an adjoining district in the same
county, than the population of a town or block  therein  adjoining  such

A. 5271                             3

district.  Counties,  towns or blocks which, from their location, may be
included in either of two districts, shall be so placed as to make  said
districts most nearly equal in number of inhabitants, excluding aliens.
  No county shall have four or more senators unless it shall have a full
ratio  for each senator. No county shall have more than one-third of all
the senators; and no two counties or the territory thereof as now organ-
ized, which are adjoining counties,  or  which  are  separated  only  by
public waters, shall have more than one-half of all the senators.
  The ratio for apportioning senators shall always be obtained by divid-
ing  the  number  of  inhabitants,  excluding  aliens, by fifty, and the
senate shall always be composed of fifty members,  except  that  if  any
county  having  three  or more senators at the time of any apportionment
shall be entitled on such ratio to an additional  senator  or  senators,
such  additional  senator  or  senators shall be given to such county in
addition to the fifty senators, and the whole number of  senators  shall
be increased to that extent.
  SUCH  DISTRICTS  SHALL  NOT  BE  DRAWN FOR THE PURPOSE OF FAVORING ANY
POLITICAL PARTY, INCUMBENT LEGISLATOR OR OTHER  PERSON  OR  GROUP.    IN
PREPARING A PLAN, THE COMMISSION SHALL NOT CONSIDER OR TAKE INTO ACCOUNT
THE  ADDRESS OF INDIVIDUAL PERSONS, INCLUDING INCUMBENT LEGISLATORS. THE
COMMISSION SHALL  NOT  USE  THE  POLITICAL  AFFILIATIONS  OF  REGISTERED
VOTERS,  PREVIOUS  ELECTION RESULTS, ADDRESSES OF INCUMBENT LEGISLATORS,
ADDRESSES OF INDIVIDUAL PERSONS AND DEMOGRAPHIC INFORMATION  OTHER  THAN
POPULATION  HEAD COUNTS FOR THE PURPOSE OF FAVORING ANY POLITICAL PARTY,
INCUMBENT LEGISLATOR OR OTHER PERSON OR GROUP.
  SUCH DISTRICTS SHALL NOT BE DRAWN FOR  THE  PURPOSE  OF  DILUTING  THE
VOTING STRENGTH OF ANY LANGUAGE OR RACIAL MINORITY GROUP.
  The  senate  districts,  including the present ones, as existing imme-
diately before the enactment of a law readjusting or altering the senate
districts, shall continue to be the senate districts of the state  until
the  expirations of the terms of the senators then in office, except for
the purpose of an election of senators for full terms beginning at  such
expirations, and for the formation of assembly districts.
  S  5.  The members of the assembly shall be chosen by single districts
and shall be apportioned by the [legislature]  APPORTIONMENT  COMMISSION
at  each regular session at which the senate districts are readjusted or
altered, and by the same law, among the several counties of  the  state,
as nearly as may be according to the number of their respective inhabit-
ants,  excluding  aliens.  Every county heretofore established and sepa-
rately organized, except the county of Hamilton, shall always  be  enti-
tled to one member of assembly, and no county shall hereafter be erected
unless its population shall entitle it to a member. The county of Hamil-
ton  shall  elect with the county of Fulton, until the population of the
county of Hamilton shall, according  to  the  ratio,  entitle  it  to  a
member.  But the legislature may abolish the said county of Hamilton and
annex the territory thereof to some other county or counties.
  The quotient obtained by dividing the whole number of  inhabitants  of
the state, excluding aliens, by the number of members of assembly, shall
be  the  ratio  for  apportionment,  which shall be made as follows: One
member of assembly shall  be  apportioned  to  every  county,  including
Fulton  and  Hamilton  as one county, containing less than the ratio and
one-half over. Two members shall be apportioned to every  other  county.
The  remaining  members of assembly shall be apportioned to the counties
having more than two ratios according  to  the  number  of  inhabitants,
excluding aliens. Members apportioned on remainders shall be apportioned
to  the  counties  having  the  highest  remainders in the order thereof

A. 5271                             4

respectively. No county shall have more members of assembly than a coun-
ty having a greater number of inhabitants, excluding aliens.
  The  assembly districts, including the present ones, as existing imme-
diately before the enactment of a law making an apportionment of members
of assembly among the  counties,  shall  continue  to  be  the  assembly
districts of the state until the expiration of the terms of members then
in  office, except for the purpose of an election of members of assembly
for full terms beginning at such expirations.
  In any county entitled to more than one member, the board of  supervi-
sors,  and in any city embracing an entire county and having no board of
supervisors, the common council, or if there be none, the body  exercis-
ing  the powers of a common council, shall assemble at such times as the
[legislature] APPORTIONMENT COMMISSION  making  an  apportionment  shall
prescribe[, and].
  THE  APPORTIONMENT COMMISSION SHALL divide such counties into assembly
districts as nearly equal in number of inhabitants, excluding aliens, as
may be, of convenient and contiguous territory in  as  compact  form  as
practicable,  AS REQUIRED UNDER THE PROVISIONS FOR SENATE APPORTIONMENT,
each of which shall be wholly within a senate district formed under  the
same  apportionment, equal to the number of members of assembly to which
such county shall be entitled, and shall cause to be filed in the office
of the secretary of state and of the clerk of such county, a description
of such districts, specifying the number of each  district  and  of  the
inhabitants  thereof,  excluding  aliens,  according  to  the  census or
enumeration used as the population  basis  for  the  formation  of  such
districts;  and  such apportionment and districts shall remain unaltered
until after the next reapportionment of members of assembly, except that
the board of supervisors of any county containing  a  town  having  more
than  a  ratio of apportionment and one-half over may alter the assembly
districts in a senate district containing such town at any  time  on  or
before  March first, nineteen hundred forty-six. In counties having more
than one senate district, the same number of assembly districts shall be
put in each senate district, unless the  assembly  districts  cannot  be
evenly  divided  among the senate districts of any county, in which case
one more assembly district shall be put in the senate district  in  such
county having the largest, or one less assembly district shall be put in
the  senate district in such county having the smallest number of inhab-
itants, excluding aliens, as the case may require.  No  town,  except  a
town having more than a ratio of apportionment and one-half over, and no
block  in a city inclosed by streets or public ways, shall be divided in
the formation of assembly districts, nor shall any districts  contain  a
greater  excess  in  population  over  an adjoining district in the same
senate district, than the population of a town or block therein  adjoin-
ing  such  assembly district. Towns or blocks which, from their location
may be included in either of two districts, shall be  so  placed  as  to
make  said districts most nearly equal in number of inhabitants, exclud-
ing aliens. Nothing in this section shall prevent the division,  at  any
time,  of counties and towns and the erection of new towns by the legis-
lature.
  [An apportionment by the legislature, or other body, shall be  subject
to  review  by the supreme court, at the suit of any citizen, under such
reasonable regulations as the legislature may prescribe; and  any  court
before  which  a  cause may be pending involving an apportionment, shall
give precedence thereto over all other causes and  proceedings,  and  if
said  court be not in session it shall convene promptly for the disposi-
tion of the same.]

A. 5271                             5

  THE STATE SUPREME COURT SHALL  HAVE  ORIGINAL  JURISDICTION  OVER  ANY
APPORTIONMENT  MATTER.  THE  COURT SHALL HAVE JURISDICTION TO COMPEL THE
COMMISSION OR ANY PERSON TO PERFORM DUTIES REQUIRED OF THE COMMISSION OR
THAT PERSON BY THIS SECTION OR ANY LAW ENACTED PURSUANT TO THIS  SECTION
UPON  PETITION  OF ANY REGISTERED VOTER. ANY REGISTERED VOTER MAY FILE A
PETITION WITH THE COURT CHALLENGING A  PLAN  OF  THE  COMMISSION  WITHIN
FORTY-FIVE DAYS OF THE ADOPTION OF A PLAN. THE COURT MAY CONSOLIDATE ANY
OR  ALL  PETITIONS  AND SHALL GIVE ALL PETITIONS REGARDING APPORTIONMENT
PRECEDENCE OVER ALL OTHER MATTERS. THE COURT SHALL RENDER  ITS  DECISION
WITHIN SIXTY DAYS AFTER A PETITION IS FILED. IF THE COURT FINDS THAT THE
PLAN  IS  NOT  CONSISTENT  WITH THE REQUIREMENTS OF ANY FEDERAL OR STATE
CONSTITUTIONAL OR STATUTORY PROVISION, THE COURT SHALL DECLARE THE  PLAN
INVALID  IN WHOLE OR IN PART AND SHALL ORDER THE COMMISSION TO PREPARE A
NEW PLAN WITHIN SIXTY DAYS.
  A REAPPORTIONMENT PLAN SHALL BE IN FORCE UNTIL THE EFFECTIVE DATE OF A
PLAN BASED UPON THE FOLLOWING FEDERAL CENSUS TAKEN IN A YEAR  ENDING  IN
ZERO  UNLESS  MODIFIED  PURSUANT  TO COURT ORDER. A REAPPORTIONMENT PLAN
SHALL NOT BE SUBJECT TO AMENDMENT, APPROVAL  OR  REPEAL  BY  INITIATIVE,
REFERENDUM OR ACT OF THE LEGISLATURE.
  THE  LEGISLATURE  MAY DEFINE BY LAW ANY OF THE STANDARDS ENUMERATED IN
THIS SECTION AND MAY ESTABLISH  BY  LAW  ADDITIONAL  STANDARDS,  NOT  IN
CONFLICT  WITH  THE  CONSTITUTION OF THE UNITED STATES OR THIS CONSTITU-
TION, DESIGNED TO GUARANTEE FAIR AND EFFECTIVE  REPRESENTATION  FOR  ALL
CITIZENS.  NO  LAW  ENACTED  UNDER  THIS  SECTION SHALL MODIFY A PLAN IN
EFFECT AT THE TIME OF THE EFFECTIVE DATE OF THAT LAW.
  S 5-B. IN EACH YEAR ENDING IN ZERO AND AT  ANY  OTHER  TIME  OF  COURT
ORDERED  APPORTIONMENT, AN APPORTIONMENT COMMISSION SHALL BE ESTABLISHED
TO PREPARE A REAPPORTIONMENT PLAN FOR STATE LEGISLATIVE AND CONGRESSION-
AL DISTRICTS. THE COMMISSION SHALL CONSIST OF FIVE MEMBERS, NONE OF WHOM
MAY BE PAST OR CURRENT PUBLIC OFFICIALS,  NOR  PAST  OR  CURRENT  OFFICE
HOLDERS  IN  ANY POLITICAL PARTY. THE TEMPORARY PRESIDENT OF THE SENATE,
THE SPEAKER OF THE ASSEMBLY, THE MINORITY LEADER OF THE SENATE  AND  THE
MINORITY  LEADER  OF THE ASSEMBLY SHALL EACH SELECT ONE MEMBER. THE FOUR
MEMBERS SO SELECTED SHALL SELECT, BY A VOTE OF AT LEAST THREE MEMBERS, A
FIFTH MEMBER WHO SHALL SERVE AS CHAIR. THE LEGISLATURE  SHALL  ESTABLISH
BY   LAW  QUALIFICATIONS  OF  COMMISSIONERS  AND  PROCEDURES  FOR  THEIR
SELECTION AND THE FILLING OF VACANCIES. THE LEGISLATURE SHALL  ESTABLISH
BY  LAW  THE  DUTIES  AND POWERS OF THE COMMISSION AND SHALL APPROPRIATE
FUNDS TO ENABLE THE COMMISSION TO CARRY OUT ITS DUTIES.
  S 2. Resolved (if the Senate concur), That the foregoing amendments be
referred to the first regular legislative session  convening  after  the
next  succeeding  general  election  of members of the assembly, and, in
conformity with  section  1  of  article  19  of  the  constitution,  be
published for 3 months previous to the time of such election.