NYS REDISTRICTING CASE UPDATE AND ANALYSIS
by Jim Yates
Background on legislation – the IRC
In 2014, by voter referendum, our state constitution was amended to create an independent, bi-partisan redistricting commission (“IRC”) to propose boundary lines, every ten years after the decennial census, for Assembly, Senate, and Congress. The commission is made up of ten appointees. (4 Democrats, 4 Republicans, 2 other). If the Senate and Assembly majorities are of one party, which they currently are, then it takes 7 votes in the IRC to approve a plan.
If the IRC’s first proposal is rejected by the Legislature or the Governor, then the commission is to try again, submitting new lines. If the second set is also rejected, then the Legislature and Governor are free to draw their own lines. If a court finds that approved lines are unconstitutional, “the legislature shall have a full and reasonable opportunity to correct the law’s legal infirmities.”
The 2022 district lines
In 2021, the IRC deadlocked and was not able to submit lines. They missed the deadline for submission. As the time for petitioning grew closer, the Legislature drew its own lines.
The state constitution (unlike the federal constitution) also prohibits political gerrymandering. Lines cannot “be drawn to discourage competition or for the purpose of favoring or disfavoring incumbents or other particular candidates or political parties.”
Republican challenge in Steuben County Supreme Court, and the first appeal.
The lines drawn by the Legislature for Congress and the Senate (not the Assembly) were found by a Republican Steuben County Court judge to favor Democrats and were stricken. As well, the court found that the Legislature jumped the gun when it drew its own lines without waiting for a proposal from the IRC. The Court of Appeals (by a 4-3 vote in an opinion written by the disgraced, resigned, Janet DiFiore) agreed with the Republican petitioners and allowed the Republican Steuben county court (not the IRC or the Legislature) to draw new lines.
It is commonly accepted that the lines drawn by the Steuben county court probably cost Democrats 5 to 7 seats in the House of Representatives – upsetting the national balance.
Basis for the current appeal to the Court of Appeals, New York State’s highest court.
After the election, VID’s Tony Hoffman was the lead plaintiff in a DCCC action challenging whether the Steuben court congressional district lines were to remain until the 2030 census, and demanding, instead, that the court mandate that the IRC re-convene and do the job it was required by the New York State Constitution to do – submit a proposal to the Legislature. (The IRC has been re-constituted, and, for a variety of reasons, it is likely that they could come to an agreement if given the chance.)
The court action is in the nature of a Writ of Mandamus, a proceeding under Article 78 of the CPLR, which directs public officers to do what they are required to do when they refuse. Republicans have objected, claiming: (1) lines can only be drawn once every 10 years; (2) the lawsuit was commenced too late for a court to hear it.
The law requires that a Writ of Mandamus be commenced “within four months after the …[government official’s]..refusal, upon…demand..to perform its duty.” Republicans argue that the Democrats and the Legislature should have sued the IRC within four months after they missed the deadline for submitting a plan. Democrats point out that this would have made no sense while the lines were still being litigated and that the IRC’s inaction was already raised as an issue before the court the first time around.
Court of Appeals argument, November 15-- analysis
An Appellate Division court agreed with the Democratic side and the appeal. Republicans appealed to the NY Court of Appeals, and the argument was heard on November 15, 2023 (webcast link here).
After listening to the oral argument in the Court of Appeals on November 15th, most observers believe it will be a close call. Three judges seemed to lean toward permitting the action. Three judges seemed to accept the Republican argument that it’s too late to sue. The seventh judge on the court, Caitlin Halligan, who was recently appointed by Gov. Hochul, recused herself for some unknown personal reason. This means the final decision rests upon a substitute replacement, Appellate Division Judge Dianne Renwick. Renwick was silent during the argument, so it is hard to know which way she will go. A clue may be in her recent vote to approve re-drawn Assembly lines. (Remembering that the Assembly lines were not found to be overly partisan, but that they were stricken because they were not part of an IRC proposal.) In January she was part of a panel that held that a revised timeline, allowing a late IRC submission was an appropriate remedial solution.
A decision is expected by December 15, 2023.
Update November 15, 2023
This is a quick update on the soon-to-be-resolved New York State redistricting case. The matter is now before the Court of Appeals, New York State's highest court. The various parties - the Independent Redistricting Commission's Republican commissioners, a group of Republican intervenors, the IRC’s Democratic commissioners, and The Elias law firm representing the DCCC have filed briefs.
VID is proud of esteemed member, Tony Hoffmann who is the main plantiff in this case!
The Court will hear oral arguments this Wednesday (11/15) at 1pm ET; They are supposed to make a decision by December15.
The argument will be livestreamed here.
A victory at the Court of Appeals will lead to a favorable redistricting that could lead to the Democrats picking up numerous House seats in NYS which could lead to flipping the House in the 2024 elections. And having a Democratic controlled House would have worldwide positive consequences, especially given the tenuousness of the Democrats holding on to the Senate.
These oral argument will be very interesting. History may be made. It is worth a listen.