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This Is The Preseason Warm Up For The Redistricting Wars To Come

The law has been unchanged since 1883 that a basic principle of statutory interpretation requires a statute to be read in such a way as to “give effect, if possible, to every clause and word of the statute”. Montclair v. Ramsdell, 107 U.S. 147, 152 (1883).  This has been affirmed repeatedly in modern US Supreme Court interpretation to be known as the rule against “mere surplusage”, which forbids interpreting one part of a statute, or county charter, in a way that renders another part meaningless or surplus.

§112.2 of the Nassau County Charter says that:

The County Legislature shall within six months after public announcement of the enumeration of the inhabitants of Nassau County in each decennial federal census commencing with the federal census for the year 2000, adopt a local law amending Annex A hereto to describe the nineteen county legislative districts which shall be based upon the new census data. Such local law shall comply with the legal and constitutional requirements for equal representation in the County Legislature of the residents of the county.

[emphasis added]

The current Nassau County, NY County Executive and Legislative Majority Leader have taken the position that the term “describe the nineteen county legislative districts” somehow equals drawing the lines for those districts. The County Attorney has taken it upon himself to hire a consultant and redraw the line personally. The Legislature is set to vote on whether to adopt these new lines on may 16th of this year. This interpretation would render sections 113 of the County Charter “mere surplusage”.

§113.1(a) states in pertinent part:

There shall be a temporary districting advisory commission established each legislative term in which the legislature is required to reapportion the county legislative districts as a result of the federal decennial census.             ….       The appointment of members to the temporary districting advisory commission shall be made no earlier than one year and eight months before, and no later than one year and six months before, the general election of the county legislators to be held in the year two thousand and three and every ten years thereafter in accordance with the provisions of this section.

[emphasis added]

§113.2 and .3 state in full:

2. The temporary districting advisory commission may recommend one or more plans to the county Legislature for dividing the county into legislative districts for the election of county legislators which plan shall comply with applicable law. The temporary districting advisory commission is authorized to hire experts, counsel, consultants and staff as provided for in the budget of the County Legislature and as the temporary districting advisory commission deems necessary. Agencies and departments of county government shall be required to provide technical assistance to the commission.

3. The temporary districting advisory commission shall take all action by not less than six affirmative votes of its members. The temporary districting advisory commission shall conduct all meetings in accordance with applicable law and may hold public hearings to develop a redistricting plan.

 

The next relevant general election of legislators would be in November 2013, because the deadline of “no later than one year and six months before” has already passed for the 2011 election. Consequently, the “no earlier than one year and eight months before, and no later than one year and six months before” language means that the ONLY window for appointing the redistricting commission required by §113, is between the March and June of 2012.

It is the redistricting commission that draws the lines, not the County Attorney. It is the redistricting commission that is authorized by the Charter to hire experts, consultants and staff to assist with redrawing the lines, no one else.

To interpret §112 as the Majority Leader proposes, renders §113 a mere surplusage and is therefore impermissible.

The common understanding of the goals or “description” is to describe the number and size of the districts to instruct that the districts must drawn in such a way that they are contiguous and do not favor or oppose any party, or candidate and that guarantee not to abridge or deny minority voting rights. For example, in 2001before the expiration of the six month period for “describing” the districts, the County passed Local Law 15-2001 which described the districts thusly:

Provided that the attached metes & bounds will subject to further readjustment and alteration as may be necessary to comply with the legal and constitution requirements for equal representaion in the county legislatoure of the residents of the county and to allow for the incorporation of the recommendations of the temporary districting advisory commission and to allow for incorporation of actions fo the Nassau County Legislature

 

So, the description including metes and bounds that would be changed by the further description “as necessary to comply with the legal and constitutional requirements for equal representation ….. and to allow for the incorporation of the recommendations of the temporary districting advisory commission…”.

During the last redistricting, the adoption of that “description” was followed by the appointment of the Charter required redistricting commission. The commission held 6 public hearing and 5 public work sessions. It sent out over 4,250 public notices. At the time the redistricting commission’s recommended map was presented to the Legislature for a vote — Peter Schmitt, the same Majority Leader Peter Schmitt who is now trying to obliterate the requirements for a redistricting commission to hold hearings, solicit community input and draw the new map — complained that the 11 public meetings were insufficient in number.

These line have been drawn in direct disregard for the requirements of the County Charter, they have been drawn by an executive branch appointee who is not authorized to draw them, they have been drawn outside the charter mandated window of time, they have been drawn without any input or review by the community.

 What can you do?

You can come on down to testify in front of the County Legislature on May 9th at 9:30 AM.

 If you can’t make it then, PLEASE send a letter to

Hon. Peter Schmitt
Presiding Officer
Nassau County Legislature
1550 Franklin Avenue
Mineola, NY 11501

pschmitt@nassaucountyny.gov

Put “via e-mail and regular mail” at the top, and send a copy via e-mail to Dianne Yaturro at dyatauro@nassaucountyny.gov .

Please send out your letter before close of business on Friday, if possible, so there will be time to put together a package of them before Monday morning’s hearing.

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Cynthia Kouril

Cynthia Kouril

Cynthia Kouril is a former Special Assistant United States Attorney in the Southern District of New York under several different U.S. Attorneys, former counsel to the Inspector General for the N.Y.C. Department of Environmental Protection where she investigated threats to the New York City water supply and other environmental crimes, as well as public corruption and fraud against the government, former Examining Attorney at the N.Y.C. Department of Investigation and former Capital Construction Counsel at New York City Parks and Recreation.
She is now in private practice with a colleague whom she met while at the USA Attorney's Office. Ms. Kouril is a member of the Steering Committee, National Committeewoman and Regional Coordinator for the New York Democratic Lawyers Council, a member of the Program Committee of the Federal Bar Council and a member of the Election Law Committee at the Association of the Bar of the City of New York. She is active in several other Bar Associations.
Most important of all, she is a soccer mom.

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