Suit Challenges Misleading Redistricting Amendment Ballot Language

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  • Susan Lerner

NEW YORK, NY (08/19/2014)– Yesterday, petitioners filed a lawsuit (attached) appealing the New York Board of Elections’ approved ballot language for Proposition 1, which concerns amending the state constitution to establish a redistricting commission. The petitioners are represented by Neil Steiner, a partner at Dechert LLP. Common Cause/NY is integrally involved in the efforts but is not itself a named petitioner, because only registered voters (natural persons) have standing under the Election Law.

“New Yorkers deserve neutral ballot language which fairly describes the amendment. Unfortunately, the wording of Proposition 1 is intentionally confusing, misleading voters to think that the amendment would create an impartial and independent redistricting process. It won’t, and voters have a right to make up their own minds, without politically motivated input from the Board of Elections,” said Susan Lerner, Executive Director of Common Cause/NY, and one of the four petitioners in the proceeding.

“We believe all citizens should have a meaningful opportunity to participate in the election process, which requires ballot language that is clear and easy to understand. Proposition 1 is phrased in such a way as to undermine that essential element of democracy. There is no reason it shouldn’t be more accessible,” said Mr. Steiner.


On August 1st, the Board of Elections reviewed sample language submitted by the Attorney General. Commissioner Andrew Spano submitted edits on behalf of Citizens Union and the League of Women voters, which was approved despite objections from Common Cause/NY Executive Director, Susan Lerner, who was at the meeting. The language proposed by Commission Spano and adopted by the Board (additions to the Attorney General’s recommendation in italics, and subtractions in bold) is as follows:

“The proposed amendment to sections 4 and 5 and addition of new section 5-b to Article 3 of the State Constitution revises the redistricting procedure for state legislative and congressional districts. The proposed amendment establishes an independent redistricting commission every 10 years beginning in 2020, with two members appointed by each of the four legislative leaders and two members selected by the eight legislative appointees; prohibits legislators and other elected officials from serving as commissioners; establishes principles to be used in creating districts; requires the commission to hold public hearings on proposed redistricting plans; subjects the commission’s redistricting plan to legislative enactment; provides that the legislature may only amend the redistricting plan according to the established principles if the commission’s plan is rejected twice by the legislature; establishes the Legislature as the default redistricting body if the commission’s plan is not legislatively enacted; provides for expedited court review of a challenged redistricting plan; and provides for funding and bipartisan staff to work for the commission. Shall the proposed amendment be approved?”

According to Commissioner Spano, the sticking point was the word “default”, in describing how the maps will ultimately be determined. The Commission ignored Common Cause/NY’s objection to the description of the legislatively-appointed commission as “independent.” Rather, a coalition of good government advocates (including Common Cause/NY, NYPIRG, and EffectiveNY), civil rights groups, and environmentalists had previously called for neutral language and submitted a suggested draft:

“The proposed amendment to Article 3 of the Constitution would allow New York State’s legislative leaders to appoint a bipartisan commission to establish new state legislative and congressional district lines every ten years pursuant to stated criteria with final approval by the Legislature. Shall the amendment be approved?”

About Neil Steiner

Mr. Steiner is a litigation partner in the New York office of Dechert LLP. In addition to his active practice representing corporations, hedge funds, private equity funds and their senior executives in government investigations and financial litigation, he devotes significant time to pro bono matters. He is member of the Board of Directors of the Lawyers Committee for Civil Rights Under Law. He was lead counsel for plaintiffs challenging the State of Ohio’s failure to provide voter registration applications to applicants for public assistance, and obtained the Sixth Circuit’s ruling, in a matter of first impression, that federal law required state officials to ensure compliance by political subdivisions of the State. The subsequent settlement of that litigation has resulted in more than 400,000 low-income Ohio citizens registering to vote in the last two years. Mr. Steiner was subsequently lead counsel for the Georgia State Conference of the NAACP in a similar litigation against the State of Georgia, where he won a ruling that the federal law applies to public assistance applications submitted by telephone or over the internet in addition to in-person applications, and is currently lead counsel on behalf of the Las Vegas and Reno NAACP and the National Council of La Raza in a similar litigation against the State of Nevada. Most recently, as co-lead counsel working with the American Civil Liberties Union, he won an injunction against Wisconsin’s voter photo identification law following a two-week bench trial in federal court in Milwaukee.

About Petitioners/Plaintiffs

Howard Leib, Esq. of Ithaca. Mr. Leib was also a named plaintiff in the Favors redistricting litigation and is active in the Democratic Lawyers Council.

Susan Lerner, Executive Director of Common Cause/NY.

Eric Walker, of Buffalo. Mr. Walker is a community activist and a Racial Equality Fellow at the Center for Social Inclusion. He is also a member of the Environmental Justice Action Group of Western New York, as well as a co-founder of PUSH-Buffalo.

Eleanor Moretta, of Brooklyn. Ms. Moretta, a grassroots activist, is a member of the Common Cause/NY Board.