Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. Again, a program note, if you missed it before, no Ask the Mayor today. We usually do that at this time. The mayor has a meeting with Vice President Harris, and I'm told that his office actually did try to arrange it so that he could still do Ask the Mayor but hey, he's merely the mayor of New York City and that doesn't give him much clout against the scheduling of the vice president of the United States, so no Ask the Mayor today, as it turns out.

Election day is just 11 days away and in-person early voting begins tomorrow in New York and New Jersey. We'll continue to cover the various votes that matter most in our area. Right now, the five proposals. This is the question I've been getting the most about an Election Day in New York. The five proposals on the ballot for voters in New York State. These are all interesting.

One when add an environmental item to the New York State bill of rights and it looks to me like four of the five are fairly simple and then there's one big controversial one called ballot proposal number one that has supporters and detractors, which is a change to the way redistricting is done, how district lines are drawn for Congress and other offices, which can enhance democracy in some ways or hurt democracy in some ways.

With me for this is WNYC's David Cruz, who wrote up a really good guide to these ballot proposals for our local news website Gothamist. Hi, David, thanks for coming on for this voter's guide of the air.

David Cruz: My pleasure. Thanks for having me.

Brian: Let's put that one big controversial redistricting one aside for the moment and go through the simpler ones first. Ballot proposal number two is the environmental one, and it's fascinating to me for its potential to do good, but at the same time, how vague it is. It would be a new right in the New York State Bill of Rights in the state constitution and it looks like the text is just one line. Each person shall have a right to clean air, and water, and a healthful environment. David, am I seeing it right? Is it just that one line?

David: That's correct. Advocates have zeroed in on the simplicity of this proposed amendment saying this does offer New Yorkers a guarantee to clean air and clean water, but the simplicity is a little deceptive because it could be fodder for New Yorkers looking to challenge environmental projects. They feel don't go far enough providing adequate air and water. There could very well be projects that can go to the courts and really this would give even greater power, I would say, to judges who would decide, well, this really abide by this new amendment that just passed.

Is it really going to promote clean air and water? There's this anticipation that environmental groups can go ahead and start filing lawsuits if they feel that a certain project does not go far enough.

Brian: In theory, who would be opposed to that one line? Each person shall have a right to clean air and water and a helpful environment. Well, yes, but the vagueness comes because it doesn't set any specific standards for what constitutes clean or helpful. We're seeing an engine for lawsuits here is what you're saying. Flags on behalf of individual, citizens, and communities to claim that right as being violated. I guess that means people could sue to go over the head of any current environmental law even and have a court say that law does not go far enough to provide a helpful environment?

David: That's correct. The courts could essentially really slow down these projects and they could make these projects in effect a little more expensive. I would say if they feel as if the project does not go far enough in abiding by that amendment.

Brian: You're saying projects like development projects, and whether they--?

David: Development projects or even a sewer replacement project, for example. That falls under the clean water. It could very well be that New Yorker says, "Well, to me, it's not really as clean as I want it to be," and so you'd have to prove that in court, but yes, you're right development projects as well.

Brian: Do you think it would go so far as, let's say, the current New York State clean water law would allow X parts per million of some contaminant in the drinking water, but the latest science says it's only safe to have less than that and so somebody takes the State of New York to court and says," Look, the current law allows X parts per million, but the newest science says it should be X minus 10 parts per million. The law does not give me a clean and healthful environment for drinking water and the way that it stands, judge, we're asking you to change the law."

David: Right, and the courts, they would have to interpret whether or not the said project would fall under that specific amendment. That's why some advocates are saying the more details are needed in terms of enforcement and definitions in terms of ensuring that this amendment is made a little more crystal clear.

Brian: I was also wondering, and I don't know if you would know the answer to this, or if anybody does at this point, but if that broad, helpful environment language could be used with respect to climate change causing emissions, or only to specific round level threats to people's environmental health like development projects or a toxic facility in your neighborhood. Any idea about that?

David: Just in reading the simplicity of this, this is so broad, it could almost be anything that you just described. I think only time will tell us, like what the far-reaching implication of this amendment would hold for New York State. Yes, you're right, it could very well be an issue regarding emissions. It could be an issue regarding just how clean the water is, or even how I guess the clarity of water as well. Really, I think it would be open season as to how people will interpret this law.

Brian: All right, let's move on through the other New York State ballot proposals. Proposal number three, we'd give you more time to register to vote. Want to explain it?

David: This is pretty straightforward. Right now, you have about 25 days to register to vote before an Election Day, but this amendment would pretty much strike that and authorize the state legislature to introduce a law that would allow for same-day voter registration and so advocates see that as a good thing because it can expand even greater voter participation. The idea is also to obviously expand voting rights for folks who may be a little bit overwhelmed by the voter registration system, but it could lead to chaos.

That's what the some of the opponents of the ballot proposal are saying since the election boards could very well be understaffed or come Election Day with trying to get folks to register and so you could very well have one poll site with maybe dozens and dozens of people coming in to register to vote. Obviously, that can slow things down for getting people who are already registered to vote. I would think that there would have to be some mechanism in place to tell people where they can register to vote, what's the site that they have to go to actually register to vote.

The one thing is that, yes, this would take effect in the constitution, but a state lawmakers would have to introduce a bill to authorize same-day voter registration. It's like a one-step of a two-step process.

Brian: A number of other referendums have done that. I'm not sure about New York, but I know in New Jersey, the marijuana legalization referendum. I guess in New York, they passed it as a law, but in New Jersey, it was a referendum that directed the state legislature to then pass a bill with specifics. Sometimes referenda are not so specific as to lay everything out, but they require the legislature to craft a bill on the general principle, but some other states have same-day registration, voter registration already. There's experience with how to do this without ballot taking up people's ability to vote in an efficient way, right?

David: That's correct. Although I have to say, there's always been this constant criticism of the state board of elections or the county board of elections that are not fully funded. These could very well require a little bit more manpower to get more people to meet that demand. I think that this can easily happen, although there will have to be a greater investment and local election boards to make sure that they have enough staffing to meet this demand. I also would say that this does keep up with, I guess, a national trend to try and get more people to take part in the voting process. I think there's been a lot of criticism against New York State that even though it's supposed to be a progressive state, it really has not really kept up with making sure that people have greater and easier access to vote.

Brian: There's that one, ballot proposal number three, which would enable same-day voter registration, although it doesn't say same day, it says it could be closer to Election Day. That includes same day. Then there's ballot [crosstalk] proposal-- Yes, the end game is to get to same-day register. Ballot proposal number four related would make permanent that you don't need some kind of reason to choose to vote by mail. What was an emergency measure for the pandemic? So many people being able to vote by mail would become a permanent option?

David: Correct. Exactly. This would also like, it really compliments ballot proposal number three. In that, it will increase voter turnout. The problem is that if you have so many absentee ballots for one specific race, it can really slow the election results and it can take weeks for election results to come out, but at the same time, you do increase voter participation by simply having someone just say, "Hey, I'll likely be busy that day, but I would like to vote and so please give me an absentee ballot." Of course, the drawback and it goes back again to budgets is that it can get expensive to print and send out these ballots.

Depending on the election cycle, maybe it would just be a couple hundred thousand or could very well be millions of people who may want to get an absentee ballot because it's just easier to just hand them in. Of course, just like ballot proposal number three, this amendment proposal is simply just an authorization to introduce legislation to allow for no-excuse absentee voting. They do require some legislative action, but again obviously, a state lawmaker would have to introduce the law or a bill to authorize a no-excuse absentee voting and this keeps up with--

Brian: Does this authorize them to do it or does it command them to do it?

David: That's a good question. I think just given the fact that Democrats, they're in power right now, I would almost imagine. This is also given the press conferences that have been out there that they would likely go ahead and want to introduce a measure for something like this. The ball right now is in the court of the Democrats and they control both houses.

Brian: I would think. Just as a footnote on these two ballot question number three, towards same-day voter registration, and ballot question number four for permanent mail-in voter permission, these are exactly two of the things that the Republican-controlled states are trying to minimize in some of their new laws, on the unproven grounds that they risk voter fraud. Red states and blue states are really going different directions on voting rules right now. I think these two ballot proposals for New York State residents to vote on in the next week are a perfect examples of that.

Ballot proposal number five, this seems like a technical fix and we're not going to spend much time on it. Something I think without much policy impact, but correct me if I'm wrong, to expand the purview of civil courts in New York State. What does that mean?

David: This really applies to New York City Civil Court system, although it is the amendment as actually being presented statewide. I would've imagine it has something to do with State Supreme Court, but basically, it would transfer jurisdictional coverage of New York City Civil Court judges to preside over small claims cases of up to $50,000 right now. The number is $25,000. The idea is to keep up one with inflation and also to offload a lot of the casework that is burdening the State Supreme Courts here in New York City.

That is a pretty much a straightforward fix. Really, not much in the way of controversy on one. It's also important to note that there hasn't been an amendment change since the 1980s with regards to the New York City Civil Court system when it comes to presiding over these kinds of cases, so technical fix.

Brian: All right. Listeners, if you're just joining us, we're going over the five ballot questions on the ballot for voters in New York State. Of course, with early in-person voting starting tomorrow in both New York and New Jersey, even if you don't have a mail-in ballot, the time is now to figure out what you're going to do on these things. We're getting our voters' guide of the air for the ballot proposals in New York, from WNYC's David Cruz, who wrote up a really good guide to this on our local news website, Gothamist.

Listeners, your question's welcome here on the phones for David Cruz on any of these 646-435-7280, 646-435-7280, or you can tweet a question @BrianLehrer. Let's get to the big and most contentious one, ballot proposal number one, to update the state's redistricting process. Now, we know that district lines for Congress and state and local offices are drawn every 10 years after the census. That's happening now after the 2020 census and the big tug of war in America right now in this area is how much that process should be political?

District lines drawn by the party in power in the state legislature, or how apolitical drawn to some neutral standards. What's it like currently in New York?

David: Right now, the way the maps are supposed to be drawn is through this one body called the Independent Redistricting Commission. Now, they were formed as a result of a 2014 state amendment that was passed by New Yorkers, that effectively to some degree really took away the power of drawing up the maps away from state lawmakers and to this one commission. The commission, they've been meeting since April to help really carve out these maps. They actually released maps last month, but they were two different maps. One was drafted by Republican appointees and the other one was drafted by Democratic appointees.

Now, the thing is this, they have not been submitted yet to the state legislature because they require another round of public input through a set of hearings, which is supposed to be starting this month. I think New York City will begin having their hearings next month. The idea was to try and create less of a partisan approach to developing or creating these maps because the fear was that one set of maps would suit one specific party through the process of gerrymandering. The commission's intent is to try and have a more bipartisan collaboration in producing these maps that won't favor one party over another.

Brian: This proposal would give even more power back to the majority party to perpetuate their hold on power, currently the Democrats, especially if they have a two-third super majority, which the Dems currently do, a lot of power to redraw district lines to their parties of advantage, right? Some good-government groups are opposing it on those grounds?

David: Correct. The biggest issue is the fact that, yes, whether it's intentional or not, these amendments appear to be designed to give the current political party in power, even greater power. In this case, it's the Democrats. With Democrats in power and this 2014 amendment allowing essentially the state legislature to draw their own maps, if they don't like the commission's maps or the commission does not present--

if the majority of the commissioners did not agree to the set of maps, the state legislature can go ahead and draw their own maps at the end of the day but what these amendments do is they cut down the number of votes needed to have these maps passed. Right now, the current rule would allow for three-fourths of the state legislature to approve the maps but now under one amendment, it would simply require what's called a simple majority. Although a simple majority is not really defined in this amendment.

Republicans are pretty much upset that they feel that this is essentially a paragraph by the Democrats to go ahead and redraw their own maps. They know that the 2022 midterms will be vital for the survival of their party on the federal level. They are essentially seeing this as a way for them to just try and concentrate greater power for the party.

Brian: Here's the Democrats argument, I think, because if on first blush, you say, well, yes, redistricting should be done by some independent or bipartisan commission. It shouldn't be that the party in power has so much power to draw the district lines, to keep themselves in power. Some Democrats argue though that since Republicans are not shy about using their power in states they control to draw district lines, so they have more seats in Congress.

The Democrats should do the same thing in their states for balance, not have a unilateral play-nice policy that the other side isn't abiding by because that would result in over-representation in Congress by the Republicans, while the Democrats are being so nice that they don't use the advantages they have. Is that the salient debate in New York right now?

David: Yes, slightly, although Democrats are arguing that these proposals, these amendments under this proposal is an attempt to fix the 2014 amendment because it was the Republicans who were in power at that point. They're essentially just trying to streamline things to make it easy for these maps to be voted on. Although right now, just so happens that the Democrats are in power. It's, at this point, an open secret that the state Democrats are worried about the power of the party on the federal level. They are essentially just waiting this out.

Once they know how the maps look like, they can either just simply reject them and just start drawing up their own maps. Of course, foreign groups are saying that this is really not what the whole point of this 2014 amendment was about. The idea was to take politics out of the redistricting process. Clearly, once we saw that there were two maps introduced last month, it pretty much told me that the commission was not abiding by the spirit of bipartisanship.

Brian: Are different good government groups divided on this? There are people who usually endorse without a political or a partisan agenda, like the citizens' union and common cause. Are they taking the same or different positions on ballot proposal number one?

David: The League of Women Voters, that's what I've been speaking with primarily is they feel as if that this would unfairly give power to the majority party by preventing the minority party from having much say in the final proposed maps. They also feel as if one of the amendments does take away voting rights for the minority party-appointed commission members. It's made up of Republicans and it's made up of Democrats, but there is another amendment, where that would strip away this idea that at least one Republican from the Senate and the assembly would have to vote on these maps.

There's an amendment that essentially de-strips that all together. They're pretty much settled. The folks over in common cause, they see this as a way of fixing and streamlining the entire process, regardless of party affiliation right now. They're not really looking at this as a Democrat or a Republican issue, they're looking at it more as a streamlining issue as well. There are other amendments in there as well, that New Yorkers are being asked. One of them is in case the federal census fails to include non-citizens in the census count, at least the state will be required to count them for purposes of redistricting.

That would be enshrined in the constitution. Currently, that's simply just state law. They are making the argument that there are other amendments that there's a greater benefit to actually saying yes to them.

Brian: Here's another one that I think is really important to at least discuss, where I think the good government groups and progressives agree. That is where prison inmates, people currently incarcerated in New York State Prisons would be counted for districting purposes, either in the prison, which is usually upstate or in their last known residence, their last actual home, which is usually in the city. Talk about that.

David: They're essentially counting the person's last home address before they were incarcerated. The idea is to help increase federal funding for these municipalities, specifically, in downstate where there's just greater population numbers. By introducing the amendment and if they vote yes for it, the federal funding can very well increase for these downstate communities because they will no longer be counted, the person won't be counted from where they are currently being incarcerated. That can certainly inflate the numbers for a specific municipality.

Brian: Let's take a call. Listeners, you can call on any of these five ballot questions on the ballot in New York State for the next few minutes. For WNYC in Gothamist, David Cruz, 646-435-7280. 646-435-7280. Here's one on ballot proposal number two, and just to refresh or if you've just joined us, this is the big environmental one. This would add an environmental right to the New York State Bill of Rights and it's just one line. It says, each person shall have a right to clean air and water and a healthful environment.

You're going to be able to vote yes or no on that one line when you vote in New York State this Election Day. Alan in Brooklyn, you're on WNYC on that one. Hi there.

Alan: Good morning. Thank you. This is prompted by the Texas abortion statute which granted a very reckless freewheeling concept of legal standing to sue to enforce their very abusive abortion law. Unfortunately, much in the past conservative supreme court justices have been very stingy with standing for environmental protection. Even when a common-sense look at the situation would suggest that anyone who notices or is bothered by an environmental problem should be able to go into court and seek to have it rectified.

My question is, what's your sense of the effect of the wording of this proposition on enlarging traditional standing for anyone who wants to sue on the substance of this proposition? Is it actually giving individuals the right to go in and be private attorneys general or is there going to be some other hurdle that is implicit in state precedent that I'm not pretty familiar with that would limit that broad standing?

David: I think you're talking about ballot proposal number two.

Brian: Yes.

David: The simplicity of the language can come back to hurt the state and it could very well be that an environmental group simply just would want to just take this government to court. I don't necessarily know the specifics, what the outcome will be to that specific question, but I will tell you that environmental groups are not really worried, essentially that there will be like, just these frivolous lawsuits. They feel as if the language essentially just gives a mandate to the state that they should abide by essentially giving clean air and clean water to New Yorkers.

This proposal is just so new. I don't necessarily know how to really answer that question without really just seeing how this plays out in the court system.

Brian: Yes, and it doesn't look like the language of the proposal really specifies it. It would probably be hashed out in court. Here's another one on that same environmental Bill of Rights measure. James in the Bronx, you're on WNYC. Hi, James.

James: Hi, Brian. Thank you for taking my call. Actually, the proposal seemed very much needed because the issues of the clean water is not just the aquifer being a good water source. It's a delivery of that water. Most of the buildings in New York City are old. The water can be good, but the delivery is compromised because the water piping in the walls of each building will still contaminate the water.

I don't drink the tap water, I don't care how they're saying it until there's a new building code that would allow the new generation of the human of builders to have what they call the piping dispose in a way that they can be replaced after a certain number of years so that we have a guarantee delivery of clean water. That is something very exciting.

We don't necessarily participate into making suggestion as to how our life is going to be run, but this is a suggestion I would like to make in the amendment of whatever the code they want, the building code needs to be addressed so that we have access to the piping. Otherwise, whatever they write is not going to be relevant because the water will be still contaminated. That's my insight from there.

Brian: James, thank you very much. What a fascinating example. That if we have a constitutional right to a clean environment, including clean water in New York State after this ballot proposal passes, if it passes, then the New York City Buildings Department or a particular landlord could be taken to court if the pipes aren't providing sufficiently clean water and the law doesn't make them do that. The enforcement of the law doesn't make them do that. Does that sound right to you, David?

David: Yes, exactly. That's why I always say that this is a very deceptively simple amendment because the courts could come in and order a management companies or even the city to make really costly changes, especially to brick-and-mortar structures, such as buildings. Again, it's like this does open the possibility that there will be even greater lawsuits and the courts will have to decide how to really press forward because it is a fascinating question.

I just wonder if any of the existing buildings are even providing clean air and clean water, at least sufficient clean air and water, then I just wonder whether or not there'll be people who'll be taking their buildings to court as if this amendment passes.

Brian: Here is Keith in Garden City who I think is in favor of the redistricting proposal. Keith, you're on WNYC. Thank you for calling in.

Keith: Yes. Hi. I was calling in because I feel like you're giving the redistricting proposal a bit of a bad rap. The changes to the majorities required are a distinct without a difference. The Democrats having enough votes to ram through whatever they want regardless. Meanwhile, this amendment does so much that's so important to eliminate a lot of the structural gerrymanders that underlie the maps that we've had for decades.

Like prison gerrymandering, where not only is it about federal funding, but it's about having people counted in the communities that they come from and not having those people count to inflate the population of these upstate communities, where prisons are located, where they cannot vote, but they are counted for the purpose of representation, inflating the value of an upstate voter in a prison community.

Brian: Well-put about that where the prison-- the incarcerated person is counted for their residents. David, Keith's certainly right about how it inflates the power of a member from a local area. If an upstate or it gives, let's see, I guess it would concentrate representation more in relatively low population upstate districts. If there's a place in the Adirondacks, for example, where hardly anybody lives or it's just sparsely populated, very rural, but there's a big prison there, and this is a real example that has a lot of inmates. Well, then that would be an additional district potentially.

The power of the, I'm not saying this well, the weight of where people are counted would move more upstate where few people are permanent residents, but those permanent residents would get more power on the basis of the individuals who are incarcerated there, and the incarcerated individual's own communities would have less power as a result.

David: Right, that's what makes this proposal very controversial because, on one hand, you have amendments that would seem to be like no-brainers and they would really benefit, for example, New York City. Then on the other hand, you have another set of amendments that would essentially take away power from the minority party. At least that's how the good government groups are seeing it. What's interesting to know too, is that you cannot just say yes or no to each of these amendments by saying yes to ballot proposal number one, you're saying yes to all the amendments.

That's why I had wanted to just ensure that the language and the ballots are very simplistic. If people really want to know and get a greater sense of what exactly they're voting on, they could go on the New York State Board of Elections website to really get the full language as to what exactly they're voting for because these changes may not very well happen overnight, even though they do take effect January 1st, but you won't really see these changes perhaps a couple of years from now. It's probably a good idea to just start doing your homework.

Brian: The status quo, at least in that provision enables the prison industrial complex as well because it gives incentive to legislators from upstate to advocate for more prison construction and more incarceration because depending on where they are, it could give them more constituents and more power. There's that on that side of the redistricting. All right, we have run out of time. Listeners, hopefully, this has been a useful guide to ballot proposals one through five on the New York State Ballot this Election Day.

To read more, we recommend you to David Cruz's written article, which is on Gothamist, guiding you through all five of these ballot proposals. Again, we hope this was helpful. David, you explained them so well, thank you very much for coming on with us.

David: Thank you, Brian.

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