Redistricting suit heads to Court of Appeals
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A court decision which ordered New York’s congressional maps to be redrawn by the Independent Redistricting Commission has been appealed, sending the case to the Court of Appeals. Map via New York State Redistricting & You/CUNY Graduate Center
By Ryan Schwach
In an expected move, the GOP and the New York State Independent Redistricting Commission have appealed an appellate court’s recent decision ordering New York’s congressional district lines to be redrawn. The case will now be heard by the state’s highest court, the second time the court has heard a case on the state’s redistricting lines.
While the appeal was filed this week, it does not include a stay order, and the state’s Independent Redistricting Commission can begin their process of redrawing the lines that have been the subject of debate between Democrats and Republicans for the past two years.
The appeal comes after a five-judge panel in the Appellate Division, Third Department ruled 3-2 in favor of an argument supported by the governor and attorney general that said that the congressional district lines drawn by a special court-appointed master were unconstitutional – the special master was originally appointed only after the Court of Appeals ruled that previous maps drawn by the state legislature were also unconstitutional.
Political observers argue that the lines being litigated heavily contributed to the GOP’s current control over the House of Representatives, after several Democratic seats in New York were flipped after the districts had been redrawn last year.
The Republican plaintiffs have attempted to defend the special master’s maps as constitutional, something the appellate division judges and Democratic petitioners disagree with. They say that because the Independent Redistricting Commission never sent a final set of maps to the legislature at the start of 2022, the constitutional redistricting process has yet to be completed.
In order to remedy the debacle, the petitioners have argued that the IRC reconvene and draw a new set of congressional maps.
In their appeal, the Republican plaintiffs say that it is their “view that the judicial remedy cured the IRC's failure to act by lawfully establishing a redistricting plan for the ordinary duration, leaving no uncured violation of law and thus foreclosing mandamus.”
“Although it is not unreasonable for petitioners to wish for a different remedy, this bald desire falls well short of the standard required to mount a successful mandamus proceeding,” the appeal reads.
John Faso, a former Republican Congressman from Long Island and graduate of Archbishop Molloy High School in Queens, is a consultant for the GOP side of the case.
“We think the majority got it wrong,” he said. “The state constitution does not permit mid-decade redistricting except to remedy a violation of law. The violation of law in this instance was the failure of the IRC to submit a second map…The Court of Appeals remedied those violations in its decision and the only remedy for those violations was a court imposed plan, and that's exactly what happened.”
Faso says “what the Democrats are trying to do is really outrageous,” and believes it is too late in the process to begin the redistricting process all over again.
“Most citizens are getting used to where their congressional districts are and who their representatives are,” he said. “To force the state to go through another redistricting is going to result in major confusion among the public, and candidates won't know where they're supposed to run.”
“Rather than trying to win seats on election day, the Democrats are trying to win seats in Congress in the back rooms in Washington and Albany,” he added.
This appeal was widely expected, and will bring the case to the Court of Appeals once their summer break ends in September.
The court’s makeup has changed from when it last heard the redistricting case and ruled in favor of Republicans.
The court, now led by Chief Judge Rowan Wilson, also includes Judge Caitlin Halagan, both of whom were recently appointed by Governor Kathy Hochul.
Last year, Wilson wrote the dissenting opinion in Harkenrider, the initial litigation against the legislature-drawn district lines, and argued that he believed the legislature's drawing of the maps after the IRC had failed to submit a final version was constitutional.
Judges Shirley Troutman and Jenny Rivera also dissented from the majority opinion, supported by former Chief Judge Janet DiFiore and current Judges Madeline Singas, Michael Garcia and Anthony Cannataro.
Should each of the judges rule the same way they did in Harkenrider, Halagan, who has yet to rule on a redistricting case, will serve as the tie breaker.
“We expected this case from the beginning to end up as the state's highest court,” said Jeffrey Wice, a professor at New York Law School who leads the school’s N.Y. Census & Redistricting Institute.
“Today's notice of appeal was simply a ministerial action and was the required first step to move an appeal forward,” said Wice.
Wice says that with the appeal filed, the IRC can still move forward, acting on the ruling of the Appellate Division.
“Right now, the commission is under a directive by the Appellate Division to get back to work,” said Wice.
Faso said he disagreed, and that he believes an automatic stay had been issued in the case.
But nothing is expected to happen quickly – due to the IRC’s partisan split and general logistical obstacles, creating new lines may become a drawn out process.
“There may be an issue in getting an organizational meeting,” Wice said. “But then again, the commission is also under a court directive that it must act. So, we don't know yet what the commission is going to do.”
Members of Independent Redistricting Commission hear public input at their Queens hearing at York College in February. Screenshot via the New York State Independent Redistricting Commission
Although public hearings aren’t mandatory, Wice believes it is unlikely the IRC would forego that part of the process.
“Let's just say the commission completes its hearings in September, there you have to work around the Jewish holidays, which is an important political consideration in New York…they'll need to have a map by October,” he said, adding that these dates were hypothetical and conservative. “Things can go wrong, and they do go wrong often.”
