The on again, off again 2020 legislative session wrapped up last week, concluding with a flurry of activity.  While the big issue – what to do about New York’s cratering finances – was ignored, last week saw significant legislative activity on a wide range of issues.  The issue of the state’s finances will likely emerge in weeks or months to come.

Lawmakers’ productivity – at least in terms of approving legislation – surpassed the previous six months.  Two hundred twenty bills passed both houses in four days of legislative activity.  A bit less than two hundred had passed for the period of January through the end of June.

In many ways it was a typical legislative session during which the majority of bills get approved during the last week of session.  But the 2020 tally-to-date is still only about half as many bills passed as in typical year.  In a normal legislative session, 600 to 900 bills are approved by both the Assembly and Senate.  This year, just over 400 bills have passed so far, the lowest amount in a quarter of a century.

Of course, there’s a big reason – the COVID-19 pandemic.  The impacts of the pandemic are felt not only in “productivity,” but also in how legislation was approved.  Lawmakers met remotely, with a sprinkling of lawmakers in the legislative chambers, others in their offices in the Capitol, in their districts or at home.  In contrast to business as usual, there were no lobbyists or members of the public physically present for the proceedings.  Yet, bills were passed.

Some big ones were in the area of voting rights.

New York State will soon implement an automatic voter registration system, if the bill is approved by the governor.  The bill adds an automated voter registration section to state agencies’ intake forms in a way similar to the process currently used by the Department of Motor Vehicles.  The AVR bill, as it’s called, specifically designates the Department of Motor Vehicles (DMV), Department of Health (DOH), the Office of Temporary and Disability Assistance (OTDA); Department of Labor (DOL); Office of Vocational and Educational Services for Individuals with Disabilities; County and City Departments of Social Services, and the New York City Housing Authority (NYCHA), as agencies participating in AVR.  The bill also requires that the governor annually review state agency activities to recommend expansion of the program.  Assuming the program tracks the experience in other states, this should dramatically expand the number of registered New Yorkers.

Absentee voting was expanded in two ways.  The first bill addressed easy access to absentee ballots for the upcoming 2020 General Election and the second established a process for voters to fix errors in such ballots.

In the area of early voting, an additional protection was added.  Under the current law, local boards of elections are given discretion in the number of early voting sites to be set up and where they will be located.  However, in doing so, these boards can – and often do – fail to provide early voting poll sites in the urban areas of small cities.  In the county of Rensselaer, the City of Troy (population is about 50,000) had no early voting locations in its boundaries in the 2019 election.  This bill requires that such municipalities would be required to offer early voting locations.

Several environmental bills were approved; one that banned disposal of unsafe fracking waste at landfills; one that banned the use of trichloroethylene, a widely used as an industrial solvent.  The chemical is highly volatile, and has polluted air, groundwater, and food. 

If approved by the governor, the sale of glyphosate would be banned.  It is an herbicide that is designed to kill broadleaf plants and grasses.  It is best known as an active ingredient in the commercial weed killer Roundup.

And legislation passed that banned the sale of food in packaging that contains perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS).

It is expected that lawmakers will return later this summer to address the state’s deteriorating finances, but only after the Congress acts on a stimulus package expected in the next couple of weeks.

One important lesson to be learned from the pandemic session is that the people’s work must continue to get done and conducted in as open a manner as possible to ensure the public’s ability to petition the government.

While it took the Legislature some time to adapt to the “new normal” of the pandemic, it was able to use a combination of technology and best practices to safely do the “people’s business” of holding public hearings, considering legislation and passing bills.  New Yorkers – who have done a remarkable job of staffing the frontlines to keep things running and quarantining as required – expect and deserve no less from lawmakers. 

Before it returns, the Legislature should take the opportunity to review how democracy has fared during the pandemic in New York and ask the public for input on what, if anything, could be done to boost transparency and public participation as it moves forward in these uncharted waters.

In New York, making new laws and changing old ones is supposed to be a deliberative process.  Normally, lawmakers introduce bills, the bills get referred to a committee, committee legislators and staff review the provisions, and then – sometimes – the bill is put to a vote.  From there the bill can be sent to the relevant floor of either the Senate or Assembly for final consideration.  If approved by both houses, that bill then goes to the governor and his staff for review before action. 

Deliberation is so important that the state Constitution mandates a minimum three-day period for review of legislation before it can be acted upon in either house, unless the house and the governor certify that the cooling off period be waived for some important reason.  (A provision that often gets abused in order to ram through a particular bill.)

Changing the law is a process that should be subject to intense scrutiny prior to approval.

That’s how the system is supposed to work and usually does, except for now.

Due to the COVID-19 pandemic, earlier this past winter the Legislature relinquished its responsibility to deliberate to the governor.  The reasons were that government needed to act quickly to respond to the crisis and the Legislature did not have rules in place that allowed it to safely function while maintaining adequate social distancing.

The Legislature kept a final veto over gubernatorial lawmaking, but suspended the normal processes under the state Constitution.

Over the past four months, the governor has enacted many laws to respond to the crisis..  But the public deliberative process was short-circuited as the executive branch reacted quickly to the crisis.

One of the decisions made by the governor illustrates the benefits and weaknesses of his new authority.

As the pandemic raged, it became clear that the June primary – for both Presidential and state offices – posed a public health risk.  Under state law, voters must – by and large – in person troop to the polls in order to cast their ballots.  Some states, like Oregon, conduct their elections through the mail, but New York requires in-person votes, except under one circumstance.  If a voter is too ill to vote or expects to be out of the state, that voter can request an absentee ballot.

In the absentee ballot application, the voter must attest to the limitation that would keep them from the polling booth.  If approved, those voters receive a ballot in the mail.

The governor seized on the “illness” excuse as a way to expand the law to protect voters.  He issued an executive order stating that voters’ possible exposure to the COVID-19 virus met the definition of an “illness” and instructed boards of elections to allow voters the option of voting by mail.

This was a great idea and he deserved credit for quickly and decisively developing that work-around option.

There were snafus, however, on primary day.  The timetable was very tight; many voters did not receive their ballot until too late and some had to vote in-person, precisely the situation they were hoping to avoid.

But larger problems developed.  Thousands of ballots were rejected on technicalities, like failing to properly sign or date the ballot envelope or including additional markings on the ballot.  Some yet-to-be determined number of ballots received by election administrators were invalidated because they were not postmarked.  

Under state law, ballots obtained through the mail must be postmarked by a certain date.  In this case, the governor’s order did not change that aspect of the law. 

Return mail that is postage-paid, like a ballot, is generally not postmarked — the mark is used to make sure a stamp isn’t re-used, but since there’s no stamp, the postal service doesn’t need to mark it.  Postal service employees are instructed to postmark ballots so that they can comply with the state rules.  Still, sometimes a it doesn’t happen that way.  As a result, in some closely contested primaries, many ballots are being tossed out because they lack a postmark.

Of course, a more deliberative process may have identified that weakness prior to primary day.  And, of course, a deliberative process may have never acted in the first place.  But a deliberative process, one conducted in public, is the best way to ensure that laws are done correctly.  That’s the wisdom of our system.

Lawmakers return to Albany this week.  It’s a good time for the deliberative process to kick in – not only to ensure that all votes cast on time during the primary are counted, but to ensure that state laws going forward do all they can to protect not only health of voters, but the health of our democracy as well.

Lawmakers return to Albany this week and both houses will be holding a joint hearing on the state’s redistricting process.

Every ten years since 1790, the U.S. Census identifies the number of Americans and where they live.  It does so in order to allow for a reapportionment of Congressional districts.  The United States is a representative democracy and thus each district in the House of Representatives must contain as close to the same number of people as mathematically possible.  The census allows for a once-in-a-decade realignment of those districts in order to ensure equality of representation in the Congress.  Thus, as the nation’s population grows and moves to other parts of the country, Congressional political boundaries are adjusted for the 435 seats of the House of Representatives.  Congress doesn’t get bigger with population, but the congressional “pie” is split up to ensure each district has the same number of residents.

The census is also used by states and local governments to realign their legislative boundaries to reflect changes in their jurisdictions’ populations.  This is called redistricting.  In New York, the state Constitution provides that the Legislature draft those changes, with the approval of the governor.  Until recently, a political process has been in place in which the State Senate and State Assembly majority parties drew maps for their respective houses and agreed to not interfere with the map drawn by the other house for its members.

Since the mid-1960s, there has been debate over whether the Legislature should be allowed to draft their own district lines.  The debate has centered on the role that redistricting has played in limiting the electoral options for voters.  Reformers have long complained that politicians choose their voters instead of it being the other way ‘round.  Politicians claim they’re uniquely qualified to understand the needs of their communities and represent those interests.  In short, has redistricting in New York resulted in disenfranchised communities and rigged elections that limit competition? 

That debate came to a head in 2012.  The governor was threatening to veto any maps that he thought were “Gerrymandered,” meaning the district lines had been drawn for clear partisan political advantage.  In the run-up to the redistricting decisions, Governor Cuomo and the State Legislature agreed to allow the Legislature to continue to draft its own maps for 2012 while putting forward a constitutional amendment that would make changes to the redistricting process in New York starting with the 2020 census and 2022 redistricting.

Those changes were approved in a statewide vote in 2014.  However, there have been significant changes since then – most notably the change in the primary date.  First, the 2014 amendment to the Constitution established a redistricting commission to conduct its work using a prescribed timetable. 

After the commission members are appointed, it is to submit to the Legislature its redistricting plan and the implementing legislation no later than January 15, 2022.  The amendment then allows the Legislature time to review the plan.  If the Legislature rejects it twice, legislators are empowered to draft their own plan without the commission.

While it’s not entirely clear what the timetable is for finalizing a plan if the commission’s plans are rejected, it is likely to take until March of 2022, at the earliest. 

In 2012 when the plan was first conceived, state office primaries were held in September.  Now those primaries are held in June, with petitions to get on the ballot circulating in February.  The Constitution’s timetable may result in candidates gearing up to run for office, but not knowing in which Senate or Assembly district they live since the lines may not have been finalized.

Second, the commission is required to hold hearings and make available draft plans for public comment.  According to the constitutional amendment, the commission must allow public access to its redistricting data by September of 2021.  What lawmakers did not consider was how that timetable would be affected if the Census failed to get its information out in a timely fashion.

Due to the COVID-19 pandemic, the U.S. Census cannot get its count of the American population fully conducted and has asked the Congress to allow it to delay submitting its population data to the states until July of next year – months later than normal.  Getting the census data late will make it extremely difficult for the commission to meet its state constitutional deadlines.

In addition, the constitutional amendment of 2014 left in place unconstitutional provisions adopted way back in 1894, provisions that violate the “one person, one vote” requirements of federal law.  While these provisions cannot be fully used, parts of those provisions are used by state mapmakers to twist districts to benefit the two major political parties.  The courts have been unwilling to block those moves, so allowing these anachronistic provisions to stay in the Constitution undermines redistricting fairness.

Outside of these complicating factors, there are fundamental flaws in the state’s redistricting.  The commission itself is not independent – it’s appointed by the legislative leaders.  And, unlike the drawing of Congressional boundaries, which require that districts contain nearly the exact number of people, New York’s system allows up to a 10 percent variation in population size.  This provides yet another tool for mapmakers to rig the system to benefit the political parties.

These issues highlight the value in the Legislature holding the hearing this week.  How political boundaries are drawn is central to how well our democracy functions.  Lawmakers have time to fix redistricting.  This hearing should help inform their thinking and ensure that they will.

A hallmark of American democracy is the concept of political power balanced among the branches of government.  This system of “checks and balances” was baked into our representative form of government so that no one branch could operate without constraints.  And while that system has evolved over the years, that balance is still central.

In New York, the state constitution has granted the executive the upper hand in budget negotiations, but the central tenet that there should be a balance in lawmaking with the executive proposing plans and the Legislature considering and then approving them, has been in place.  In our system, the Legislature is the primary policymaking body.

Until this year.

In reaction to the looming pandemic and the anticipated chaos, the Legislature ceded tremendous policymaking authority to the governor.  They did so because at that point in March no one knew how bad the impact on the state would be and, at that time, the Legislature had no rules in place to act using remote means, such as the use of technological platforms that allowed voting from afar.

In one law, the Legislature granted the governor the authority to make significant changes in the agreed-to budget.  Under this law, on a quarterly basis, the governor can review the state’s budget and enact cuts to spending that he deems necessary.  The Legislature has the authority to come back into session to overrule those decisions, but they ceded day-to-day power to the governor to act without the Legislature.  

In a similar fashion, the Legislature granted the governor unprecedented power to enact legislation without legislative approval.  Again, the Legislature can come back into session to overturn actions by the governor, but allowing this new nearly unilateral authority to the governor to enact laws was an incredible expansion of executive power.  The power allowed the governor to make new laws and suspend or modify existing laws, whether state or local.

This new delegation of authority requires the governor to renew his own actions every 30 days and continue them if he wishes, unless the Legislature convened in formal session and overruled him.  An action they have not taken—though both the Senate and Assembly have developed rules that allow them to conduct all legislative business without being physically present in Albany.

This new arrangement not only diverges from the roles established in the state constitution, but it gives the governor unprecedented powers and allows the Legislature to duck its responsibilities.

As the pandemic eases, last week civic groups are urging that the Legislature reclaim its constitutional duties and take control of lawmaking.  Under the reformers’ plan, instead of the governor reviewing his own actions, legislators would.  If they chose to continue the governor’s decisions, they can.  Essentially, the reformers’ plan would restore some of the Legislature’s powers.

The reformers are also urged that lawmakers get back into session to do the people’s work.  Lawmakers have missed essentially one full month of session and their productivity has dropped dramatically.  While a crude measure, the Senate and Assembly have jointly approved about 150 bills during the scheduled 2020 session, while in 2019 they approved 900.

The reformers’ proposal generated harsh blow back from the executive.  Arguments were made that reforms would undermine the public health measures that had been approved.  Using a classic “straw man” argument, defenders of a sidelined legislative branch then argued that rebalancing this power dynamic would put the health of New Yorkers at risk.

That approach was designed to distract from the central argument and cloud the legitimate concern over the correct balancing of the policy responsibilities of the branches of government.

Americans have endured a toxic national politics for a long time.  Too often our national system is hinged to the strategies of debasing others’ concerns and misleading public understanding of important policies under consideration.

Sadly, it happens in New York too.  American democracy is based on a system of checks and balances — a system that helps ensure that one branch does not dominate another.  It is often a messy system and one that does not always work right.  But it is that way by design.

Members of the state Senate and Assembly are elected to represent New Yorkers in legislative policymaking and to act as a check on the executive and the judiciary.  When they cede that authority, they must do so for good reason and for only as long as necessary and no longer.  Their job is to represent us, when they fail to do so, they fail to do their jobs.  No amount of misinformation can counter that.