Last week, New York’ highest court heard arguments over whether it should intervene to allow changes to the state’s Congressional district boundaries. 

How the court rules could have huge implications for the nation and the world.  The current House of Representatives has a small Republican majority.  That majority exists, at least partially, due to the success Republicans had in 2022 in capturing 11 of the New York’s 26 Congressional seats.  If New York’s Court of Appeals allows for new lines to be drawn, it could enhance the chances of the Democrats to wrest control of the House in 2025 – the next Congress.

Without getting too deep into the legal weeds, here’s some background.  The court case is the latest litigation that emerged from changes made to the state’s Constitution ten years ago.  Those changes, formulated by then-Governor Andrew Cuomo, were inserted into the Constitution to establish a so-called Independent Redistricting Commission (it’s really bipartisan).  The changes included guidelines on how that Commission would set political boundaries after the census – which is conducted every ten years. 

Critics at that time predicted the result would be gridlock since the Commission has equal numbers of Democratic and Republican members.  Thus, unless the two major political parties cut a deal, nothing could get done.  That is exactly the outcome that occurred after the last census in 2021.

The Constitution offers a way to break the gridlock, if supermajorities in each house of the state Legislature cobble together their own plan and have it approved by the governor.  At the time of the changes, no one predicted that Democrats would have supermajorities in both the state Senate and Assembly.  But in 2021 they did – and still do.

The legislative Democrats developed their own plan — which gave their party a good shot at taking 22 of the 26 seats, but Republicans sued and won.  The court ruled that since the IRC gridlocked and did not produce the maps as required under the Constitutional process, the Legislature did not have the authority to draw its own maps.  As a consequence of that decision, a court-appointed “special master” drew the new lines, which resulted in a stronger Republican performance – and control of the House of Representatives that they now enjoy.

In demonstrating that elections have consequences, the Republican Congressional majority has, among other things, forced reductions in federal spending, launched an impeachment inquiry against President Biden, and blocked aid to Ukraine as it battles to reverse Russia’s unprovoked invasion.  Thus, control of Congress can not only impact American politics, but the history of the world as well.

The current litigation stems from the Democrats’ argument that the Court of Appeals should require the IRC to draft new lines.  Their argument is based on the constitutional requirement that it is the IRC that draws the lines.  They further argue that in 2021-22, the IRC’s failure to do so triggered the court’s intervention since the timetable was so short, but that now there is time and thus the IRC should be allowed a “do over.”

Republicans argue that the Constitution contemplates that redrawing the lines after the census is a once-in-a-decade requirement and that it’s done.

Outside legal experts watching the Court of Appeals judges’ line of questioning at oral argument last week anticipate a close decision.  A decision is expected next month.

As mentioned earlier, the impacts of the court’s decision could have ramifications far beyond politics in New York.  Which political party controls the House of Representatives will impact national policies, may decide the course of history in international affairs, and may decide who resides in the White House in 2025.

Americans don’t have to look far into the nation’s history to see the role that the Congress plays in choosing a President.  As we have seen in the elections of 2000 and again in 2016, the popular vote is not how presidents are chosen, but by the vote of the Electoral College.  Under that system, the states have votes for president based on their Congressional representation.  As we have seen in the attempt by former President Trump to overturn the election of 2020, the House plays a prominent role in our system.  Challenges in the House and Senate could have undermined the results, but in both cases the leadership of those Houses agreed that Joe Biden was elected in a fair election.  A different leadership may have triggered a constitutional crisis.

In order to win the Electoral College, a candidate for President must receive 270 of the 538 electoral college votes.  In 2024, that may be tougher than in other recent elections since there could be significant challengers on minor party lines.  If any minor party candidate wins the election in some states, it may be that no one candidate gets the required 270 vote minimum.  Then what happens?

Under the 12^th amendment to the U.S. Constitution, the House of Representatives would elect the President, and the Senate would elect the Vice President, in a procedure known as “contingent election.”  In a contingent election, the House would choose among the three candidates who received the most electoral votes.  Each state, regardless of population, casts a single vote for President in a contingent election.  A majority of state votes, 26 or more, is required to elect, and the House must vote “immediately” and “by ballot.”  Control of the House of Representatives, therefore, may be in a position to choose the next President.

This is not an academic consideration, contingent elections have been implemented three times in American history: in 1801, 1825, and 1837.

As a result, how political boundaries are drawn in New York could decide America’s future in ways not contemplated in modern times.  The decision of New York’s top court may well drive that outcome.  New York, the nation, and the world, may feel its impact. 

New Yorkers had the opportunity to cast their ballots in last week’s off-year election.  Not surprising that few showed up and, by and large, incumbents won in these local office races.  The outcomes of the elections, however, could be an indication of the strength of New York’s major political parties, and could fuel a big change in how elections are conducted.

First, some of the outcomes.  Across the state incumbents did well.  That doesn’t mean there were not some surprises – like the upset in the Bronx that will send the first Republican representative to the New York City Council in 40 years.  The overall political outcomes, however, did not see dramatic changes. 

The elections also showed the resurgent strength of the Republican Party on Long Island.  Those two counties, Nassau and Suffolk, have a combined population of 2.9 million, with 2.2 million voters.  Democrats have enrollment advantages over Republicans in both counties, but a better organized effort by Republicans increased their party’s turnout and capped a three year dramatic shift to Republican control of key elective offices in both counties.  Results in other suburban areas have not been as clear cut, so it remains to be seen whether this shift on Long Island foreshadows statewide inroads in the suburban vote by Republicans.  Yet, the outcome should be of deep concern to Democrats.

Despite the Long Island threat to Democratic Party dominance in New York, nationally, the party  did well in 2023.  The national results buoyed the Party as it looks ahead to the Presidential election in 2024.  Also at stake in 2024 will be control of the Congress.

Republicans currently have a razor-thin majority in the House of Representatives where their 222 seats is just enough to control that Chamber –218 seats are needed for a majority.  The current Republican majority is the result of a strong showing in the 2022 election in New York State.  Instead of Democrats capturing an overwhelming number of the 26 Congressional seats in New York, they were only able to win 15.  Of the 11 seats taken by Republicans, 5 were squeakers. 

Those five seats are in the crosshairs of Democrats going into the 2024 election.

It is expected that at least two of the Long Island Congressional seats will be up for grabs next year.  Those two are largely in Nassau County, a place where Democrats have a 100,000 voter enrollment advantage.  Yet, over the past few years they lost the county executive seat, lost state senate and assembly seats, and control of important towns – all in a county whose Democratic leader is also the head of the statewide party.

Will the growing strength of Republicans in Nassau County be the determining factor in who controls the House of Representatives in 2025?  Quite possibly.

Beyond the post race analysis, this was yet another paltry turnout in the 2023 election.  For example, in New York City only 313,000 New Yorkers voted out of a total 4.6 million voters.  Even on Long Island where Republican turnout was significantly higher than Democrats’, only about a quarter of voters cast their ballots. 

The dismal turnout added fuel to the calls for legislation that has been approved by both houses of the state Legislature and is expected to go to the desk of Governor Hochul.  That legislation would shift the majority of local elections from odd-numbered years to even-numbered ones – elections that tend to have a higher turnout since they coincided with national and statewide voting. 

The justification for the legislation is obvious – scheduling more elections in even-numbered years would boost voter turnout and have outcomes in which the winners would be chosen by a much larger percentage of the voters.  For example, in the 2022 New York races for governor, about 43% of voters showed up.  In the 2020 Presidential election, 61% of New York voters did.  Compare those rates with the lousy turnout in 2023. 

If it is signed by the governor, the new law would be phased in over a period of years.  It would apply to offices like county executive and town supervisor, for which elections in many localities are held in odd-numbered years, opposite the presidential and statewide elections.  But it would not apply to certain positions like district attorney and city-level elections — which are set by the state Constitution.  It also doesn’t apply to villages, which generally hold elections in March.

A recent analysis showed another benefit of the shift:  Younger voters and voters of color are more likely to turn out.  Of course, shifting local elections to even-numbered years may make it harder for voters to focus on specific races, but it is clear that many more voters would participate.

The governor hasn’t indicated whether she will approve the legislation.  If she does approve the plan, many more New Yorkers will be involved in deciding who at the local level represents them. 

New York’s ethics watchdog is developing its legislative agenda for 2024.  The Commission on Ethics and Lobbying in Government (COELIG) is New York’s latest regulator of ethics and lobbying.  Governors Spitzer, Cuomo, and now Hochul, all overhauled the state’s ethics watchdog agencies soon after entering office.  The latest version grew out of Governor Hochul’s insistence that a new regulator be established that, in her plan, would be sufficiently independent of political influence.  COELIG’s predecessor entity, the Joint Commission on Public Ethics advanced by Cuomo, had been roundly criticized as anything but independent.

Under COELIG’s mandate, the agency is required to hold a public hearing and develop changes to further strengthen accountability of public officials and the state’s mammoth lobbying industry.  The agency has developed for comment largely technical fixes to the law and last week held an informal roundtable meeting that allowed civic organizations to comment on their proposals.

The agency’s draft proposals were issued under a cloud as a result of litigation brought by former Governor Cuomo.  The former governor has sued to block COELIG’s investigation into whether the Cuomo $5.1 million book deal – approved by the former ethics agency – violated the state law that prohibits the use of public resources, such as the governor’s staff, to be used in making money outside of one’s public job.  The former ethics agency had concluded that the former governor did just that and COELIG was conducting a follow-up investigation into whether to agree with that analysis. 

Some civic groups argued that COELIG’s agenda should include measures to further strengthen the agency by enshrining it in the state Constitution.  Such a move could not only create a powerful ethics watchdog, but it could also expand the agency’s authority in significant ways.

One such way would be through a constitutional amendment to establish ethics standards and an independent enforcement agency.  If approved by voters, such an amendment would make it clear that members of the new commission must be chosen outside of the state’s most powerful elected officials (which is essentially the case now) but could also addresses the problem of ethics oversight of the legislative branch.  Legislative branch ethics are overseen by the Legislative Ethics Commission, an entity whose membership is not only chosen directly by the legislative leaders but includes legislators themselves.  Yup, you heard that correctly:  Legislators are overseeing the ethics of their colleagues and themselves.  The rationale for the two separate entities is the constitutional principle that the powers of the executive and legislative branches be separate.  Having two separate bodies will remain a key defect unless there is a constitutional change. 

While legally distinct from the ethics and lobbying oversight, a second issue is enforcement of the state’s campaign finance laws. 

Plainly put, New York’s campaign finance system allows conflicts of interest.  Some brazen examples include that elected officials can solicit campaign dollars from lobbyists and their clients during the legislative session and that those elected officials controlling decisions on which entities receive governments contracts can receive contributions from them as well.

It doesn’t have to be that way.  A number of states limit contributions from lobbyists.  Many states place restrictions on campaign contributions from lobbyists, particularly during the legislative session.  According to the National Conference of State Legislatures, 28 states have restrictions on contributions by lobbyists or campaign donations during the state’s legislative session.  New York is not one of them.

In addition, there can be no doubt that those seeking government contracts simply should not be able to use their wealth to influence the awarding of such contracts.  All too often, the decision making of awarding government contracts has been influenced by the showering of campaign contributions on those who make the critical decisions over how to spend the public’s money.

One does not have to look far to find examples of “pay to play” scandals in New York.  The most obvious recent example is the “Buffalo Billion” scandal, but there have been others both in New York and in other states.  Allowing vendors to make campaign contributions not only can undermine public confidence but can also adversely impact state spending.  If a small vendor believes that contributions can make the difference and that company can’t make such donations, they may choose to not participate in the bidding process.  The lessening of competition for government contracts can lead to inflated spending.

Shifting responsibility for enforcing campaign financing from the State Board of Elections (which is controlled by the two major political parties) to an independent, professionally-run, ethics watchdog could curb some of the most egregious – though legal – examples of “pay-to-play” contributions and thus reduce New York’s political corruption risk.  We all deserve that.

New York’s early voting option started up last weekend and will go through this coming Sunday.  The General Election will follow on Tuesday, November 7^th.  The 2023 election is not a “high-visibility election”; most of the races are for offices at the local government level.  Of course, those elections matter.  Local races include seats on town and city councils, county legislatures, candidates for mayor, town supervisor, town clerk, town justice, and highway superintendent.  Often the decisions made by these individuals have a more direct impact on voters’ lives than those made in Albany or even Washington.  These elections can often be decided by a small number of voters, so every ballot cast is important.

These local elected officials appoint county managers and county auditors, town chiefs of police and chairs of zoning and planning boards.  They allocate the funds in local budgets and decide when and whether to apply for additional funding in the form of federal, state and county grants.

Early voting lasts through Nov. 5^th. Polling hours may vary, and early voting sites may differ from Election Day voting sites.  The best way to know the hours of early voting and the polling locations – which are often different from those used for the traditional General Election – is to check with your local county board of elections.  Registered voters may cast ballots during early voting.  Voters may check their eligibility to vote through the state Board of Elections website.  Of course, voters may cast ballots at their local polling places on the traditional General Election Day, November 7^th during the period 6 a.m. through 9 p.m. (remember if you have voted during the early voting period, you cannot vote again during the General Election).  You can find your polling site by going to the state Board of Elections website. 

In addition to choosing local elected officials, New Yorkers will also get to cast their votes on two statewide ballot measures.  New York State’s Constitution does not allow citizens to petition to put questions directly on the ballot, but the Legislature can choose to do so, and they have.  The two proposals deal with increasing debt limits.

Proposal 1would remove debt limits on small city school districts.  The proposal was approved by two successive legislative votes and with overwhelming bipartisan support. 

A “yes” vote supports this amendment to eliminate the constitutional debt limit for small city school districts (a “small city” is a city with less than one hundred twenty-five thousand people), which currently amounts to 5% of the average full value of the last five years’ property tax rolls within the district.  A “no” vote opposes this amendment, thereby keeping the constitutional debt limit for small city school districts, which can be surpassed if 60% of the voters approve a measure to do so.

Proposal 2 would allow greater debt for localities’ calculation of debts for sewage treatment facilities.  This provision was designed to exclude constitutional debt limits when it comes to the construction or maintenance of sewer facilities.  Under the New York Constitution, state municipalities have a limit of how much debt can be incurred.  The percentage varies by municipality.  This question is put to voters every ten years and has been approved regularly since 1963.

A “yes” vote supports allowing municipalities to exclude from their constitutional debt limits indebtedness for the construction or reconstruction of sewage facilities for an additional ten years (through 2034).  A “no” vote opposes allowing municipalities to exclude from their constitutional debt limits indebtedness.

While it may seem like a relatively quiet election, partisans will be looking to see which political party shows signs of strength going into the more consequential election of 2024, when the President is chosen.  The ballot questions in 2021, for example, showed signs of Republican strength since their opposition sunk three ballot questions.  In 2022, Republicans ran a strong campaign that came close to unseating Democratic incumbent Governor Hochul. 

However you view the partisan divide, over the next week you have your annual opportunity to have your voice heard.  You can vote through this Sunday at an early voting polling place or during the traditional General Election Day next Tuesday.  As the saying goes, not choosing is choosing.  Vote.

New York State – like the rest of the nation – is grappling with a growing solid waste crisis.  Americans have never really tackled the incredible amount of trash that the nation generates.  And until China reversed its decades-old policy of taking our trash, we got away with it.

China enacted its “National Sword” policy in 2018.  That policy banned the import of most plastics, electronic waste and other materials headed for that nation’s recycling programs.  China had handled nearly half of the world’s recyclable waste for the past quarter century.  The rationale for ending the program was simply that industrialized China was tired of being the world’s garbage dump.

Without an adequate American national policy, it’s been left up to the states to handle the problem.  In 1988, New York’s Solid Waste Management Act established the preferred hierarchy of solid waste management.  In short, the hierarchy stated that first, reduce the amount of solid waste generated.  Second, reuse material for the purpose for which it was originally intended or recycle the material that cannot be reused.  Third, recover, in an environmentally acceptable manner, energy from solid waste that cannot be economically reused or recycled.  Fourth, dispose of solid waste that is not being reused or recycled, or from which energy is not being recovered, by land burial or other methods approved by the state Department of Environmental Conservation (DEC).

Despite that policy, little has been done to curtail the amount of waste generated, recycle it, or make manufacturers responsible for the end life of their products.  New York State has on its books a coherent approach.  This week, the Legislature scheduled hearings to examine how it handles packaging – both those of beverage containers and other types of packaging that too often ends up in garbage dumps.

One exception to the state’s anemic track record on reduction of, or recycling of, wastes has been its Bottle Deposit Law.  That’s the law that requires a nickel deposit on certain carbonated beverages and bottled water.  When you return the container, you get your nickel back.  That program is a good example of a “circular economy” – one in which the manufacturer of a package becomes responsible for its disposal. 

The Bottle Deposit Law has been the most successful litter reduction and recycling program in New York history.  The DEC describes it as a “tremendous success.”  When the law kicked in 40 years ago in 1983, carbonated beverage containers were found everywhere; now the overwhelming majority of such containers are redeemed under the program.  But many beverages – most notably non-carbonated sports drinks – didn’t exist four decades ago and are not covered by the law today.  And the nickel deposit was put in place 40 years ago – that 1983 nickel when adjusted for inflation is worth 15 cents today.

In addition, the program itself is due for a good review, like any 40-year-old program should be.  Good for the Legislature in holding that first hearing.  The second hearing examines so-called “extended producer responsibility” legislation, a concept which essentially covers non-beverage container packaging. 

As we all know, packaging generates a lot of waste.  Just look in your home trash bin.  Not only does it cause a solid waste problem, but it contributes to the climate crisis as well.

Solid waste accounts for 12% of statewide greenhouse gas emissions, most of which comes from landfills.  Landfills emit methane, a greenhouse gas on steroids.  Methane is 25 times more potent than carbon dioxide when it comes to global warming.  Methane levels in the atmosphere have doubled over the last 200 years as a result of industrialization.  Reducing this pollutant rapidly would have a tremendous and immediate impact on mitigating the worst effects of climate change. 

The state’s climate plan, which offers a roadmap on how New York can meet its climate goals, recommended that “To reduce emissions to achieve the required 2030 GHG emission reductions, significant increased diversion [of solid wastes] from landfills as well as emissions monitoring and leak reduction will be needed.  A circular economy approach to materials management is understood and employed.” 

The plan calls for the enactment of legislation to curb the generation of waste by reducing and recycling the waste generated by New Yorkers.  Specifically, the plan calls for expanding the state’s bottle deposit law to include additional beverage containers. 

That call has broad-based public support.  In a recent poll, 71 percent of New Yorkers support expanding the state’s bottle deposit program to include all types of beverage containers, with just 23 percent opposed.  

Expanding the Bottle Bill would be a major financial benefit both for New York’s municipalities and the state as a whole.  According to one estimate, expanding the law would save New York municipalities at least $70.9 million dollars annually through waste diversion and add as much as $200 million to the state’s coffers.   Not only would municipalities and the state save financially, but diversion on this scale would save an estimated 332,000 metric tons of CO₂, the equivalent of removing 32,000 cars every year.

Expanding and modernizing the Bottle Deposit Law is a win, win, win.  It helps with the climate crisis, helps with the solid waste crisis, and generates money for the state and local governments.  That’s an important message for lawmakers to hear.  It’s a message for Governor Hochul as well, as she is now putting together her budget plan for next year: expand the Bottle Deposit Law in 2024.