By Richard Briffault.
In 2014, the people of New York voted to amend the state constitution to change radically both the process for and substantive rules governing the drawing of district lines for the state legislature and New York’s congressional delegation. The post-2020 Census redistricting presented the first test of the new constitutional procedure, and everyone involved—the Independent Redistricting Commission (IRC) created by the 2014 amendments, the legislature, and the Court of Appeals—flunked. The IRC, which was required to prepare up to two bipartisan plans, failed to do so. The legislature, which was supposed to be guided by the work of the IRC, ignored the plans that the IRC actually prepared and adopted its own plans as if the constitution had never been amended. And the Court of Appeals in its April 27, 2022 decision in Matter of Harkenrider v. Hochul ignored a central tenet of state constitutional law and both the letter and spirit of the constitution by directing that the entire matter be turned over to a special master appointed by a single state supreme court justice.
Matter of Harkenrider dealt with two claims—whether the process by which the congressional and state senate maps[1] were enacted violated the constitution, and whether the maps also violated the substantive provision added in 2014 that ”[d]istricts shall not be drawn to discourage competition or for the purpose of favoring or disfavoring incumbents or other political candidates or political parties.” (Art. III, § 4(c)(5)). In this comment, I am going to focus solely on the first claim and the closely connected issue of the proper remedy if the constitutional process was found to have been violated.
The focal point of the new redistricting process is the ten-member IRC. Although nominally “independent,” its appointment structure, voting rule, and limited effect suggest that it was intended less to be an independent decision-maker and more a forum for bipartisan deal-making. Eight of the ten commission members are appointed by the four partisan legislative leaders (Art. III, § 5-b)(a)). When—as is the case today—both houses of the legislature are controlled by the same political party, the IRC can adopt a districting plan only with the approval of seven of its ten members, including at least one member appointed by each legislative leader (e.g., two votes from the appointees of the minority party) (Art. III, § 5-b((f)(1)). Most importantly, no plan adopted by the IRC can become law without the approval of the legislature and the governor, and the legislature is free ultimately to ignore the IRC’s proposals (Art. III, § 4(a)).
Despite these limitations, the 2014 amendments had the potential to significantly improve the transparency of and public participation in redistricting. The constitution requires the commission to hold at least ten properly publicized public hearings in cities and counties throughout the state, and to make widely available to the public, “using the best available technology, its draft redistricting plans, relevant data, and related information” (Art. III, § 4(c)). And any plan presented by the IRC—and any plan adopted by the legislature—is subject to a host of substantive constitutional constraints, including the ban on favoring or disfavoring particular candidates or parties (Id.).
Finally, to assure that the IRC’s work takes center stage, the 2014 amendments require the legislature to wait for the IRC’s maps before adopting a redistricting plan. The constitution provides that the IRC “shall” prepare and submit to the legislature its redistricting plan by January 15, which the legislature must vote on, without amendment. If the legislature rejects the plan, the IRC has until February 28 to submit a second plan, which the legislature must again consider in an up-or-down vote without amendment. Only if the legislature rejects the second plan may it adopt its own plan, subject to the substantive constitutional constraints, including the limit on partisanship.
Well, it didn’t quite work out that way this time. The first failures were the IRC’s. The IRC was unable to reach a bipartisan compromise, and instead submitted two plans, each backed by half its membership. The legislature promptly rejected both. The IRC failed again when it never submitted the second plan the constitutional process called for. The commission’s (in)action was arguably understandable; the commissioners, aware of their own internal deadlock, may have concluded there was no point in trying again. But their failure was inconsistent with the constitutional process.
The second failure was the legislature’s. By passing redistricting legislation without voting on a second IRC plan, the legislature failed to follow the constitutional procedure. Moreover, it appears that the legislature did not work from either of the plans submitted by the IRC in January but crafted its own, and in an entirely partisan fashion.
But the Court of Appeals failed as well, arguably in finding that the legislature violated the constitutional procedure, and certainly in its remedy for that violation. First, although Chief Judge DiFiore’s majority opinion[2] properly stressed that the constitutional amendments “were carefully crafted to guarantee that redistricting maps have their origin in the collective and transparent work product that is constitutionally required to pursue consensus to draw district lines,” the Court failed to acknowledge that the constitution failed to address what would happen if the IRC failed to achieve that consensus. The constitution created a structure and process to facilitate “fairness, transparency, and bipartisanship,” but it could not force a bipartisan IRC plan into existence. More specifically, in assuming that the IRC would be willing and able to submit two plans, the amendments had no back-up provision in the event the IRC was unable to submit a second plan. As the majority in the Fourth Department Appellate Division opinion modified by the Court of Appeals put it, “the New York State Constitution is silent as to the appropriate procedure to be utilized in the event that the IRC fails to submit a second redistricting plan to the legislature as constitutionally directed.”
Did the legislature, by adopting a redistricting plan without the benefit of a second IRC submission, merely “fill the gap” in the constitutional procedure, as the appellate division wrote and Judge Rivera dissenting on the Court of Appeals[3] agreed? Or did the legislature flagrantly violate “clear constitutional language” as the majority determined?
It’s a close question but on this point the Appellate Division and Judge Rivera have the stronger position. What was the legislature supposed to do in the face of IRC deadlock and failure to submit a second plan? As Judge Rivera put it, the constitution does not “command the legislature remain idle in the face of an IRC decision not to submit a plan.” Perhaps, the legislature should not have jumped the gun and should have waited until the February 28 deadline pass before enacting its own plan. That would have avoided breaching the constitutional timetable. But given the deadlock on the IRC and the fact that, as Chief Judge DiFiore’s opinion acknowledges, under the 2014 amendments “the legislature retains the ultimate authority to enact districting maps upon completion of the IRC process,” it’s hard to see why the legislature should have had to mark time over the month of February to run out the clock on a process that had already broken down. The majority urges “[t]his view ignores the fact that procedural requirements matter and are imposed because, as here, they safeguard substantive rights,” and contends that failure to find the legislature violated the constitutional procedure “would be to render the 2014 amendments . . . functionally meaningless.”
That is overblown. It’s hard to see what substantive rights were violated by the legislature’s failure to wait a month before acting. Indeed, the legislature’s precipitate action accelerated the timetable for substantive challenges to the redistricting plan. Nor did the legislature’s action render the amendments “meaningless.” The statewide hearing process generated substantial public input and information helpful to fleshing out the constitution’s vague requirement that district lines consider “communities of interest.” The two plans put forward by the two halves of the IRC provide benchmarks for assessing how well any plan adopted by the legislature respects the new constitutional standards. And most importantly, the substantive restrictions adopted in 2014 continue to have bite.
To be sure, it is a close question. As the opinions of both Chief Judge DiFiore and Judge Troutman emphasize, the process set up by the 2014 amendments was intended to be the “exclusive” process for redistricting and it wasn’t followed. Still, given the apparent inability of the IRC to come up with a second plan, it’s not clear that the constitutional process was violated either. A central tenet of state constitutional law is that state constitutions are documents of limitation not grant, that is, they suppose that the state legislature has plenary power to act in the absence of a limitation imposed by the constitution. This is in contrast to the federal constitution, which grants Congress power and requires Congress to trace its action back to a constitutional grant. In this case, the state constitution required the legislature to wait for the IRC and limited the legislature’s ability to amend a plan submitted by the IRC. But it did not clearly limit the ability of the legislature to act in the event that the IRC failed to act.
If the question whether the legislature violated the constitution is a close one, the question of the proper remedy is less so. The Harkenrider majority directed that the matter be turned over to the single Steuben County Supreme Court judge the plaintiffs had selected to hear their case and to the special master that judge appointed. That is inconsistent with both the text and the spirit of the constitution. Article III, section 5 clearly states:
“In any judicial proceeding relating to the redistricting of congressional or state legislative districts, any law establishing congressional or state legislative districts found to violate the provisions of this article shall be invalid in whole or in part. In the event that a court finds such a violation, the legislature shall have a full and reasonable opportunity to correct the law’s infirmities.” (emphasis supplied)
This language is in the section of Article 3 primarily devoted to apportionment of the assembly, but by its terms it applies to “any law establishing congressional or state legislative districts” found to violate Article 3, which the Harkenrider court concluded meant the law before it. The remedy—returning the law to the legislature—is clear.
To be sure, it is no longer possible to cure the infirmity of waiting until February 28 for the IRC to act. But surely returning redistricting to the legislature—which, under the constitution, was free to adopt its own plan after rejecting a second IRC plan—is a lot closer to the text than judicial arrogation of that function. The court is right to bemoan the failure of the transparent, bipartisan process the voters sought to create in 2014. But it’s not clear how that goal is advanced by turning the process over to a special master hired by a single judge.
In her separate opinion, Judge Troutman urged that the matter be returned to the legislature subject to an order that the legislature adopt one of the two plans the IRC submitted in January, “on a strict timetable, with limited opportunity to make amendments thereto.” Although derided by the majority as “extraordinary” and “incongruous”—and not exactly what the constitution provides—her remedy comes a lot closer to both the text and spirit of the 2014 amendments than the majority’s order. As she put it, that would be a “remedy that matches the error.” It would certainly have done a better job connecting the ultimate districting plan back to the intention of the voters that redistricting be shaped by the IRC. The heated language of the majority’s opinion[4] suggests that its frustration with the IRC and legislature and with the political process more broadly got the better of its analysis both of the question of whether the constitutional procedure was followed and, especially, of the remedy for a violation.
All in all, so far the 2022 redistricting process in New York has not at all been what the framers of the 2014 amendments intended. If there is a silver lining in this sorry episode of multiple constitutional failure, it may be that next time the legislature will be more careful in its appointments to the IRC, its attention to the IRC process, and its response to the IRC’s plans to avoid the whole matter once again winding up in court.
ABOUT THE AUTHOR: Richard Briffault is the Joseph P. Chamberlain Professor of Legislation at Columbia Law School.
[1] The Harkenrider plaintiffs did not challenge the assembly map, although since the Court of Appeals’s decision a challenge to the assembly map has been filed.
[2] Chief Judge DiFiore’s opinion was joined by Judges Garcia, Singas, and Cannataro. Judge Troutman’s separate opinion concurred in the finding that the legislature violated the constitutional procedure but disagreed with the majority with respect to the remedy.
[3] In his own separate opinion, Judge Wilson concurred in Judge Rivera’s opinion.
[4] Judge Troutman got off lightly in the judicial insult department. Chief Judge DiFiore blasted Judge Rivera’s analysis as “remarkable” and topped that by labelling Judge Wilson’s reasoning “impermissibl[e]” and “nonsensical.”