By: Stephanie Perry
State of Elections blog posts are written by William & Mary law students who have opted into studying election law in all its nuances. We sweat the difference between a racial gerrymander and a political gerrymander, the distinction between an expenditure and a campaign contribution. That said, this blog writer was genuinely confused on the first (and second and third) read by the language and content of Ballot Proposal 1 that appeared on ballots across New York state on November 2, 2021. “Amending the Apportionment and Redistricting Process” is the title of Proposal 1. There are tough topics in an Election Law class, but I had hoped the framers of the ballot question would boil it down to its simplest terms for an audience with lesser election law literacy than a second-year law student.
This was not the case. Instead, the ballot question reads: “This proposed constitutional amendment would freeze the number of state senators at 63, amend the process for the counting of the state’s population, delete certain provisions that violate the United States Constitution, repeal, and amend certain requirements for the appointment of the co-executive directors of the redistricting commission and amend the manner of drawing district lines for congressional and state legislative offices. Shall the proposed amendment be approved?”
The amendment would amend, but to what? As a former New Yorker now outside of its political advertising ecosystem, maybe I was missing something. I reached out to a friend who votes in every election to ask what she thought of the proposals. “To be honest, I felt like I didn’t do my homework on them,” she said, and singled out the first proposal for its complexity and “confusing” language.
She’s hardly alone. As of mid-November, Proposal 1 had been voted down with 48.5% of voters choosing “no,” 38.4% choosing “yes,” and 13.1% leaving the question blank. Every ballot proposal saw at least 10% of voters abstain from voting, with the highest rates of non-voting for Proposal 1 and Proposal 5 (to increase the “jurisdictional limit” of New York City Civil Court), which happen to be the most technical issues for a layperson. Preliminary results in New York City showed “in the Bronx, 26.4% of voters left blank the redistricting question, Question 1. In Brooklyn, over 29% of voters, almost 94,000, left Question 1 blank,” according to Gotham Gazette. Voters may have simply failed to flip over the ballot to check for proposals or deliberately abstained, but it’s just as likely that voters simply were not sure whether to vote “yes” or “no” on a half dozen changes to the apportionment and redistricting process, none explicitly detailed on the ballot.
Election Day the year after a presidential cycle tends to be sleepy in New York state. Mayors, sheriffs and judges are on the ballot. Even though these races affect life close to home for New Yorkers, turnout on Election Day is low. New York City reported turnout under 20% in the November mayor’s race (The closely watched ranked-choice primary race in June brought out about 25% of registered Democrats in the Big Apple). Buffalo’s competitive mayoral race brought out 40% of all voters. New York state lacks citizen-initiated referendums and other direct democracy processes, so ballot questions are occasional and usually originate in the state legislature. Amendments to the state constitution can be made after a proposal passes both houses of the state legislature in two successive terms and then wins approval on the statewide ballot. Between 1985 and 2020, 50 statewide ballot proposals have appeared. Sometimes campaigns on issues like casino gambling or a constitutional convention capture public attention, but just as often proposals to raise the monetary ceiling for claims in New York City court cases or to use land in the state-controlled Adirondack Park end up before voters with little information and limited exposure to advertising on the matter.
The defeat of Ballot Proposal 1 (along with No. 3 to “delete the current requirement in Article 2, § 5 that a citizen be registered to vote at least ten days before an election and would allow the Legislature to enact laws permitting a citizen to register to vote less than ten days before the election,” a/k/a to allow for voter registration in the ten days leading up to Election Day, and No. 4, to “delete from the current provision on absentee ballots the requirement that an absentee voter must be unable to appear at the polls by reason of absence from the county or illness or physical disability,” a/k/a to allow for no-excuse absentee voting) has been presented as a massive defeat for voting policies generally favored by Democrats and evidence of widespread concern about election integrity even in “deep blue New York,” in the words of Mitch McConnell. And it could be.
However, opponents of Proposals 1, 3 and 4 outspent supporters 10-to-1. Opponents coalesced around a simple message––“Just Say No”––and delivered it aggressively to targeted areas of the state. Supporters lacked a simple message and didn’t reach out to voters.
The message about Proposal 1 is hardly simple. In New York state, a “single subject” rule applies to acts of the state legislature under Article III, § 15 of the state constitution, which requires that no bill “shall embrace more than one subject, and that shall be expressed in the title.” Ostensibly, Proposal 1 passes this test. Proposal 1 tackled several distinct but related issues: setting the number of state senators at 63; setting a state rule to count non-citizen residents for apportionment purposes if the federal census failed to count them; guaranteeing in the state constitution that incarcerated people are apportioned by their place of last residence and not where they are detained, as New York already does under statute; removing rules for keeping towns together within state senate districts; moving up deadlines for the state redistricting committee to accommodate earlier primary dates; setting approval for redistricting plans to a simple majority of the legislature regardless of whether both houses are controlled by the same party; and changing how co-executive directors of the redistricting commission are appointed. The Brennan Center details how Proposal 1 would have changed redistricting committee and legislative actions here. The response rate for Proposal 1––one in every eight voters sitting the question out––suggests the plain text of the proposal and the education efforts surrounding it fell short. The earliest that advocates for the defeated proposals could put the issues before voters again would be 2023.