NYS Legislature and Independent Redistricting Commission Violate New York’s Constitution Splitting Small Counties to Form Gerrymandered Assembly Districts

The current proposed map from NY’s Independent Redistricting Commission (IRC) violates NY’s constitution in splitting my county, Madison with a mere 68,000 residents, between 2 Assembly districts—even if this is better than the 5-way split in effect for the 2022 election.   Before last year, Madison County was never split between Assembly districts—not since the county’s founding in 1806.   

The plain language of New York’s Constitution requires a minimum of 1 undivided Assembly district per county.  But the Constitution makes clear that combining small counties, without splitting them, is a reasonable approach to equalizing Assembly district populations.     Since 1846 the NY Constitution has specifically mandated such a combination for the Assembly District that contains Hamilton and Herkimer Counties. 

The Assembly redistricting map for Upstate that I submitted to the IRC in December 2021 (https://districtr.org/plan/87313/89905) follows this approach.  My map meshes perfectly, and still does, with the IRC’s plans for Assembly districts in the seven large counties from Bronx southward, which I fully support.    But to the north, there are 40 much smaller counties with populations under the average Assembly district, i.e. under 1/150 of the state total.  My map divides none of these 40.  The IRC’s current map divides 22 out of the 40. 

Furthermore, in my map all but one of the 15 larger upstate counties have as many districts contained entirely within them, as they have whole-number multiples of the average district size.  The exception is Dutchess County, which has a population a bit more than double the average. Constraints from neighboring counties meant I could give it only one unshared Assembly District of its own in my plan.  That’s better than the current IRC plan, which gives it none.    

My map has a maximum population deviation from the average district of 13.3%.  This clearly satisfies the 1983 US Supreme Court decision of Brown v. Thomson.  That dealt with Wyoming’s state constitution which, like New York’s, required at least 1 representative in its lower house from each county of the state. Justice Powell’s opinion in that case upheld that giving 1 representative to Wyoming’s smallest county, with a population only 40% of the average district, was NOT a violation of the equal-protection clause of the 14th Amendment, because it met a longstanding continuously observed state constitutional requirement, with no evidence of discriminatory intent.      

My proposed Assembly map, in which the smallest district has 87% of the average district population, is well within Justice Powell’s limits.  My map proves mathematically that anyone who claims it is Constitutionally impossible to keep all 40 of New York’s smallest counties intact within Assembly districts is engaging in a bit of self-serving–albeit bipartisan–deception. 


Representation by county is not the only rational way to choose legislators in a democratic republic, but it is still the only Constitutional way in NY State.  This has been true since the adoption of the first state Constitution in 1777; and it has a history in England that stretches back to the year 1295, when King Edward I began to call commoners to represent counties in the “Model Parliament,” even before its splitting into two separate houses.

Nevertheless, as a member of the Libertarian Party’s National Platform Committee in 2022, I helped promulgate, and fully support, our plank to explore proportional Party representation in legislatures, as an alternative to representation by geographic district.  With proportional representation, members of a particular identity group could form their own statewide political party (e.g. the Black Lives Matter Party), and get representatives into the New York Assembly in proportion to votes that they receive not only within a few black-majority districts, but spread geographically throughout the state. The same goes for Libertarians, of course. 

However, the proper route to achieve this kind of alternative representation is by state Constitutional amendment, not by ad hoc unconstitutional gerrymandering by the IRC to create as many weirdly-shaped black-majority districts as possible.  

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