On March 31, 2022, Supreme Court, Steuben County (Patrick F. McCallister, J.), held that the process utilized by the Legislature to draw election district maps for the 2022 elections, and the maps themselves, violated the state Constitution. On April 21, 2022, the Fourth Department, in a divided decision, affirmed Supreme Court’s order in part, concluding that the process utilized by the Legislature was not constitutionally defective but that the maps were. The Court of Appeals heard argument on the case on April 26, 2022. We asked some experts to share their thoughts about the argument and the case.
Jerry H. Goldfeder, who is the Director of the Voting Rights and Democracy Project at Fordham Law School and also a Special Counsel at Stroock & Stroock & Lavan, told us:
One can rarely predict how a court is going to rule, especially a hot bench that asks many questions. In the redistricting case, there were several Judges very much engaged in the manner by which the Independent Redistricting Commission functioned, and the role of the legislature when the IRC did not cross all of its T’s and dot all of its I’s. Although the constitution contemplates the IRC to submit two successive plans (which the legislature had the authority to reject), it submitted two simultaneously. Should that, in effect, constitute two plans, permitting the legislature to draw up its own? Should the plaintiffs, whose lawyer announced to the Court that there is “always” redistricting litigation, have sought mandamus relief against the IRC for not submitting a “second” plan rather than simply complaining that the IRC “broke the law” and that the legislature had no authority to act? Should the Court of Appeals simply order the IRC to submit another plan and force the legislature to issue its lines once again? Or should the Court simply order a new set of lines, which would delay the primary and nullify all the petitions that have already been submitted? Of course, if the Court followed its own ruling from thirty-five days ago, it will acknowledge that the process was a bit messy but the legislature’s implementation of its constitutional and historical duty to redistrict deserves deference—that would be the most straightforward application of the law under these circumstances.
Meanwhile, Jeffrey Wice, an Adjunct Professor and Senior Fellow at the N.Y. Census & Redistricting Institute at New York Law School, told us:
The Court of Appeals has long afforded the state legislature a lot of discretion in redistricting. In fact, no legislatively enacted redistricting plan has been rejected by the court in several decades. Today’s hearing in Harkenrider v. Hochul questions whether a new court membership that’s never heard a redistricting base before, plus new constitutional standards, will make a difference.
In recent decades, the court has avoided the responsibility to compel the legislature to abide by the constitution, while the legislature pushed to the limits of how far it could go.
In 1982, Brooklyn’s Bay Ridge was divided among several assembly districts, with pieces of the neighborhood attached to clusters of Democratic voters nearby. In finding that this map satisfied the rule that districts be “in as compact form as practicable,” the court essentially defined “practicable” to mean that any districts conforming to the other federal and state constitutional rules could be configured in any way the legislature wanted. The court went even further in Wolpoff v. Cuomo (1992), and Cohen v. Cuomo (2012), rejecting challenges to senate districts enacted in those years. The court required that plaintiffs show not only that a redistricting law departed unnecessarily from the state constitutional rules, but that the legislature acted in bad faith when balancing conflicts between constitutional rules. The requirement that they prove this beyond a reasonable doubt imposes a standard more demanding than just overcoming a presumption of constitutionality generally given to legislative enactments.
The “beyond a reasonable doubt” standard employed by the court in Cohen informed that:
“It is well settled that acts of the Legislature are entitled to a strong presumption of constitutionality “and we will upset the balance struck by the Legislature and declare the [redistricting] plan unconstitutional only when it can be shown beyond reasonable doubt that it conflicts with the fundamental law, and that until every reasonable mode of reconciliation of the statute with the Constitution has been resorted to, and reconciliation has been found impossible,” the statute will be upheld.”
The “bad faith” test was first used in Schneider v. Rockefeller (1972) and was relied upon by the court in Wolpoff:
“The Majority Leader has marshaled a considerable amount of statistical and demographic data to support his contention that these districts were drawn in a “good faith effort” to comply with Reynolds v Sims and the Voting Rights Act and not for partisan political reasons, as petitioners argue. . . . Although we are troubled by the number of divided counties in the new plan and by the four bi-county pairings, it is not appropriate for us to substitute our evaluation of the relevant statistical data for that of the Legislature. We are satisfied that in balancing State and Federal requirements, the respondent has complied with the State Constitution as far as practicable, and we cannot conclude on this record that the Legislature acted in bad faith in approving this redistricting plan. Having made that determination, our review is ended.”
Today’s robust arguments in Harkenrider v. Hochul make us wonder the court will focus more on procedural issues over whether the legislature was entitled to enact new maps after the Independent Redistricting Commission failed to complete its mission. Several justices focused on the alleged intent to gerrymander instead of over district-specific abnormalities.
While we wait for the decision, we are left wondering what might happen next. Not to try reading tea leaves, but would the court follow its precedents and continue to allow the legislature great discretion? Will the court send the congressional map back to the legislature without telling it was illegal, and by identifying specific districts? Will the court direct the lower court’s expert to redraw maps? Or will the court go as far as to suggest that the Independent Redistricting Commission be resurrected to draw the second set of maps it failed to do earlier this year? In the meantime, the 2022 primary calendar clock is ticking and many New Yorkers are waiting to learn whether the primary will continue as planned or if a later primary will be necessary based on newer lines.
Many, many thanks to our two experts for sharing their thoughts!
Posted on 2022-04-26.