Thursday, May 15, 2014

What They Said: Part 1

On Wednesday afternoon, the Hofstra law students (now Hofstra Law School graduates) who have been studying Hudson government for the past semester reported their findings. The report covered several topics--Contracts and Government Structure; Ethics Code; Conservation; Weighted Vote. The first topic that Gossips will cover is the last they presented: the Weighted Vote. (Full Disclosure: Gossips is headquartered in the First Ward, whose representatives, along with those of the Fourth Ward, have the least powerful votes in the Common Council.) Brendan Friedman and Peter Barbieri were the law students who studied the issue of Hudson's weighted vote system. 

The first discovery reported--of no small significance--is that Hudson is the only city in New York State, and probably in the entire United States, that uses weighted voting to achieve the bedrock principle of American democracy: "one person, one vote." In the Executive Summary, Friedman and Barbieri suggested that "the City reconsider its apportionment plan in light of the following":
  • The constitutional principle of "one person, one vote" requires that, within any legislative body, each citizen have an equally weighted vote.
  • The most common, and preferred, method of complying with one person, one vote is to draw districts with equal populations.
  • Weighted voting has been used in counties--and only counties--as a means of complying with one person, one vote, while simultaneously preserving representation for traditional, independent political subdivisions (such as towns and cities).
  • The justification for permitting weighted voting at the county level does not apply with as much force to a single political jurisdiction, such as a city.
  • Even if weighted voting within a city satisfies the constitutional requirement of one person, one vote, the method that Hudson uses to weight the vote (which relies upon a mathematical calculation that allocates votes based upon the relative voting power of each district, rather than in proportion to the population of each district) raises constitutional questions.
It turns out that the arcane calculations Rutgers professor Lee Papayanopoulos has done for Hudson every ten years or so since 1974 have a name: the Banzhaf method. This method, which uses a theoretical mathematical model, was once the favored way to determine weighted vote, but it seems it isn't anymore. Now the favored method is population based, pure and simple. For example, the First Ward has 12 percent of the total population, hence the aldermen representing the First Ward should wield 12 percent of the total votes. As it is now, the First Ward aldermen have only about 9 percent of the votes.

The discussion included statistics that, although vaguely known to most of us, are nonetheless quite stunning. The population of Hudson's most populous ward, the Fifth Ward, is 2,484; the population of Hudson's least populous ward, the Fourth Ward, is 725. The 2,484 people in the Fifth Ward represent 37 percent of the total population of Hudson, but when the two aldermen from the Fifth Ward vote together, as they usually do, their votes represent 46 percent of the total vote. It was also pointed out that on our eleven member Common Council, it takes only four members to constitute a majority. (Of course, that four person majority requires the aldermen from the Third Ward and the Fifth Ward to vote together--something that rarely if ever happens in a vote that is in any way controversial.)

Looking at the map of Hudson's election districts (above), the boundaries of which are the same as the ward boundaries, it doesn't appear that the Fifth Ward is all that much bigger geographically, but there are other things to consider. More than two-thirds of the First Ward is taken up by the South Bay. A similar situation exists in the Second Ward with the North Bay. The Third Ward includes the Hudson Correctional Facility (whose inmates can no longer be counted in the population of Hudson) and the cemetery. The Fourth Ward includes the huge property owned by the Firemen's Home, whose residents are counted in Hudson's population but their number is small compared with the vast geographic area of the home.

Back in 1886, when the Fifth Ward was created, the boundaries probably made sense. There were houses above Fifth and north of Warren, and there were a few houses along Green Street, but much of the area was taken up by the fairgrounds, and, as this photograph of Green Street, taken around 1890 and presented in two parts below, shows, it was still a pretty rural place. That's not the case anymore.

Gossips has been harping for a while on the inequity of the weighted vote, but the question is: How do we fix it?

Friedman and Barbieri suggested a goal: six election districts of equal population, each represented by only one alderman, with boundaries that would be redrawn after every decennial census. (Reducing the number of aldermen from ten to six would save roughly $25,000, a saving which would be reduced if there had to be a sixth representative from Hudson to the Board of Supervisors.) To create the six election districts, the Fifth Ward would have to be split in two (the Fifth Ward is already divided into two election districts), the eastern boundary of the First Ward would have to move farther east into the Third Ward, and part of the Fifth Ward would have to returned to the Fourth Ward. (The map below, which shows the ward boundaries in 1873, reveals that the Fifth Ward--now the biggest ward--was carved out of the Fourth Ward--now the smallest ward.)

Linda Mussmann, who lives in the Fourth Ward and whose not-for-profit, TSL, is located in the Fourth Ward, defined the problem: "Those in power [i.e., the Fifth Ward aldermen] are not likely to give it up."

Predictably, Rick Scalera, who lives in the Fifth Ward and currently serves as Fifth Ward supervisor, noted that the Hofstra law students' report had "conveniently left out" the fact that a referendum to change the ward boundaries was defeated twice in the past. Eric Lane, dean of Hofstra Law School, responded that the failure of past referendums had been considered, but it was decided that, although politically relevant, it was not legally relevant. "Notwithstanding that the majority of the people like it, it doesn't mean it is constitutional," Lane told Scalera.

Another problem with Hudson's weighted vote system that Friedman and Barbieri brought up is that it does not give citizens equal access to their representatives. At one time, in 1965, for example, when the Comprehensive Development Plan was created, the Fifth Ward, identified in that document as the "High School Neighborhood," was pretty homogeneous, and probably everyone who lived there felt adequately represented by the Fifth Ward aldermen of the day: Neil E. Reardon, Jr., and William D. Troy. Today things are different. Not all of the 2,484 people who live in the Fifth Ward--at least not those that Gossips has spoken with--feel that the present day Fifth Ward aldermen represent their interests. 

In spite of failed referendums in the past, reapportioning the City of Hudson is an idea whose time has come. Apropos those failed referendums, here's a confession. Gossips voted no in both of them: the first time, because I was new to Hudson but thought myself savvy enough to be suspicious of any change proposed by city government; the second time, because I couldn't imagine abandoning the historic ward boundaries. I still find that hard to accept, but my sentimental attachment to the historic boundaries of my beloved First Ward notwithstanding, the time has come to make the representation of the citizens of Hudson equitable by creating new election districts. The wards as historic and cultural entities will live on.


  1. Well, that was fascinating. I can't wait to hear what they have to say about the Ethics Code in the CIty of Hudson.

  2. The Hudson Democrats have been calling for an end to the weighted vote since at least 2010 as a matter of fairness and equity. Now that the city knows it is not only unfair, but also (most likely) unconstitutional, what will the city do? Don't expect much from the Mayor. Hopefully the Council will act quickly to correct this glaring inequity before a lawsuit (which will cost the city thousands of dollars) forces them to.

  3. "Hudson is the only city in the New York State, and probably in the entire United States, that uses weighted voting to achieve the bedrock principle of American democracy: "one person, one vote." ... WOW ! ! ! so thats what makes this place so undemocratic.

  4. I'd wrongly supposed that Hofstra was going to tell us unequivocally whether or not Hudson's voting system is illegal. If the question can be answered in that way, then is it or isn't it "constitutional"?

    (And why can't one of our representatives pose the question to the Department of State's legal division, which begins with a phone call that a mere citizen is not entitled to make.)

    If the issue's constitutional status is still undecided, then Hofstra did not review all of the possible options. What these students did (who don't even live here) was to deliver an opinion on one possible solution which is miraculously consistent with the general trend of the political party which is overwhelmingly supported by law school professors across the land (as based on federal campaign contributions).

    But despite the possible bias which has limited this discussion, I'm not necessarily opposed to the students' single conclusion.

    Victor's correct that the HCDC has been calling for equal-sized districts since at least 2010, but until now the proposal has received little traction. At a meeting of the Legal Committee in February last year, the subject was dismissed out of hand. At that meeting and at others, resident's questions about redistricting were routinely dismissed by aldermen with an apparently self-evident and topic-ending statement: "but that would take a referendum."

    But there are actually risks of power abuses with equal-sized wards which the ward system guarded against. There's the potential inconvenience of redistricting every 10 years, and there's the local aversion to relinquishing the wards, a sentiment which should not be ignored even if it's disqualified for being illegal ... if it is.

    And if it is determined to be illegal - providing there's an either/or answer to that - then what does any of this imply towards a general vote on a charter revision? If our arrangement is illegal, do we still need a referendum beginning with a petition process, etc? (Perhaps, if only in a pro forma way.)

    So what exactly did Hofstra deliver except an elaborate opinion with a possibly unwarranted (even biased) single conclusion? Isn't that sort of thing more appropriate in blog comment threads?

    These students would have done better conversing with the public, but that's not what law schools encourage of these future masters of he universe.

    This resident gives these students a "D" for truncated reasoning. If I come to discover one day that I agreed with their conclusions after all, then I'll have made up my mind by reviewing all options and thus applying sounder means.

  5. An intermediate position is to weight based on population rather than voting power. I strongly suspect that weighting based on voting power would be held unconstitutional, while weighting based on population would be upheld. The laws regarding redistrictings and the VRA has been a long time hobby of mine. Until I got distracted by Hudson doings, I was working with an Illinois state legislator on coming up with a model redistricting code using objective criteria that would largely take the partisanship (and the gerrymandering) out of the process. What may really be going on here under the surface, is that if the 5th ward were split, one part might vote substantially differently than the balance. So while just making the weighting system legal would reduce the 5th ward voting power from 46% to 37%, if it were bifurcated, it might reduce the portion of the 5th ward that dominates it, down to 16.6% (one sixth of the total). So that might be a good interim compromise. A final thought if that if the city were sued over this, I suspect the legal bills might hit six figures. That is a big, big number for a city like Hudson. I hope it gets good legal advice on this highly complex, but obviously critically important, issue.

  6. As to the matter mentioned above, about what happens if the voting power vote weighting system were struck down by the courts, I suspect the court would order the city to change the system (maybe ruling on whether a weighted system based on population would be Constitutional, maybe not), and if the City did not act within a certain time, the court would appoint a special master to do the job for the City. The remedy might vary depending on whether it is in federal or state court as well (federal courts tend to favor so called "least change" remedies, which might increase the odds that the federal court would just order the vote weighting formula to be based on population, rather than voting power). A state court might be more proactive. Just my opinion. Lawyers tend to have lots of opinions. Who knew? :)

  7. Yet in this case, the "lawyers" didn't lay out the gamut, but only offered their single recommendation.

    I'd have preferred it if they'd spent their time narrowing down the legality issue, which we're apparently no closer to understanding than before (thus assuring future business for lawyers).

    Can we conclude anything meaningful in the dean's reply to Scalera that his objection may not be legally relevant?

    Well is it or isn't it?

    "Notwithstanding that the majority of the people like [the weighted vote], it doesn't mean it is constitutional," the dean announced.

    Is it or isn't it?!

    Increasingly it seems that this unanswered question and any potentially unique solutions to Hudson's unique circumstance were obfuscated by Occam's razor.

    I had wrongly anticipated an exhaustive analysis of options, which leaves me fearful about how these students will weigh in on environment issues. They don't live here and they didn't speak with the public. What can they know of local conditions? Where's the respect?

    Unfortunately no notes were submitted to the City Clerk after Wednesday's presentation, which strikes me as even more disrespect.

    1. unheimlich--The Hofstra graduates did in fact "lay out the gamut," as you put. That I chose to focus, in the interest of charity and effectiveness, on their principal suggestion and not discuss at-large voting, legal challenges, reapportionment by a court appointed master is my shortcoming not theirs. Your beef in this is with me.

    2. If that's the case, then all apologies to academe.

      Pray tell, what were the great scholars' views on a mixed system of redistricting while maintaining the weighted vote Hudsonians favor?

      Alderman Friedman once famously said in these very threads that such a scenario was "illegal," but he didn't defend himself when I provided an example from Cayuga County.

      Now I'm so glad that someone will be able to tell me what Hofstra said concerning this unique option, unless they didn't say anything ...

  8. I don't love the weighted vote, but the law school dean's reply to Scalera struck me as tenuous, and even disrespectful. I'm just frustrated at the advice, despite the claim that the legality hasn't been tested before. If Hudson is unique, maybe there's something to it?

    I'd preserve the weighted vote if that's what voters want, but also redistrict to even out the current wards' population imbalances.

    And at the risk of having more politicians rather than less - and why does anyone suppose Hudson will fair better in fewer hands? - why not create a 6th Ward?

    By accepting the 10% deviation allowed by "one-person-one-vote," you could combine both approaches and probably not have to redistrict very often.

    This could be achieved by splitting the 5th ward's current total of 2485 residents into two. The resulting wards would still be the second and third largest wards in the city, just behind the 2nd ward's 1281 residents.

    All options should have been considered, but no one can tell me whether or not that was the case.

    Why didn't these experts from Long Island speak with residents? That would have been the right thing to do, but it probably never occurred to them.

  9. In emails I'm being browbeaten into appreciating what Hofstra is doing for us, but it's all external to the ideas themselves.

    But where's the reasoned debate? We don't do that anymore?

  10. There is no debate in a post constitutional period.

    1. Natural Rights notwithstanding, when Mr. Moore's capricious council deploys militia to (at gunpoint) eliminate first, second and fifth amendment rights of (inner city) Navigators, it tends to dampen the debate of "development" by the fifth ward monarch.

      1 Riparian

  11. Unheimlich - The way I understand it is the Hofstra team only could research and lay out problems/issues as they see them. Since they are not the city's attorneys they could not say what they think should be done about the problem. They repeated many times "We can't say, that's for the city to decide".

    I believe that the research done by the Hofstra team has shed a greater light on the structural problems in city government. They will be issuing a full report on their findings (which will be public). Once that report is finalized and issued, that is when the debate on what to do about it should begin.

    I hope that people will stay very aware about this issue and come out for meetings where it is dicussed. In the meantime, I thank the Hofstra team for their diligence and sincerely hope that their work sets the stage for real reform.

  12. Unheimlich - The way I understand it is the Hofstra team only could research and lay out problems/issues as they see them. Since they are not the city's attorneys they could not say what they think should be done about the problem. They repeated many times "We can't say, that's for the city to decide".

    I believe that the research done by the Hofstra team has shed a greater light on the structural problems in city government. They will be issuing a full report on their findings (which will be public). Once that report is finalized and issued, that is when the debate on what to do about it should begin.

    I hope that people will stay very aware about this issue and come out for meetings where it is dicussed. In the meantime, I thank the Hofstra team for their diligence and sincerely hope that their work sets the stage for real reform.

  13. Thanks Victor. I was probably beating the legality question too much, though I was honestly hoping we'd have learned more about potentially applicable case law, if any.

    Shutting down dialogue by claiming that this or that is unlawful is an overused trick in Hudson. Frequently the claimant, often a lawyer, is incorrect, but until someone can disprove a claim of illegality it remains the last word on any subject. (That's already happened on this very issue, when Alderman Friedman made an unfounded claim of illegality in a Gossips thread.)

    If Scalera had approached the matter less divisively, he might have asked instead under what conditions the weighted voting system could be preserved and still comply with the law?

    How the law school dean actually responded was to state that while Hudson's previous referenda were relevant politically, they were not relevant legally.

    But if the legality of the issue is truly unknown, and if every option was not considered, then on what basis did the dean terminate that dialogue?

    Perhaps making their presentation in advance of the availability of the report wasn't such a good idea. Until we can follow the reasoning closely, how can we know whether Hofstra has done Hudson any favors?

  14. The political geographers are now busy on this matter, very busy. :)

  15. Who determined the ward populations? How did they do it? What if they messed up? Do the weightings get redone?

    What if elections are not being conducted using the ward boundaries specified in the city charter?