In Matter of Harkenrider v. Hochul, a divided Court invalidated the new congressional and state senate maps, drawn to account for the 2020 Census, after holding that (i) the process by which the Legislature enacted those maps maps violated the state Constitution, and (ii) the maps reflected a partisan intent and thus constituted an impermissible gerrymander also in violation of the state Constitution.
We’re excited to share three comments on Matter of Harkenrider:
Professor Jeffrey M. Wice, Where Do We Go From Here?
- Professor Wice is an Adjunct Professor/Senior Fellow at the New York Census & Redistricting Institute at New York Law School. He is also Of Counsel to the Washington, D.C. law firm Sandler Reiff Lamb Rosenstein & Birkenstock, P.C. Professor Wice has over 40 years of experience working in redistricting, voting rights, and census law, and is considered a national expert on redistricting.
- Professor Wice remarks that the decision in Matter of Harkenrider “upended the state’s redistricting world” by thrusting an historically deferential state judiciary into the driver’s seat for redistricting in the wake of the 2020 Census. He proposes a series of reforms for the Legislature to consider once the dust settles in the wake of this round of redistricting. But he suggests that the “major question” facing New Yorkers now will be whether they want “a new completely independent process” or “one that provides the legislature with a role but make the IRC a viable party to the process.”
Professor Richard Briffault, Constitutional Failure.
- Professor Richard Briffault is is the Joseph P. Chamberlain Professor of Legislation at Columbia Law School. Over the past 40 years, Professor Briffault has combined public and government service with teaching, research, and scholarship; he is an authority on state and local government issues, including campaign finance reform, government ethics, gerrymandering, and fair elections. He has written more than 75 law review and journal articles, as well as books and casebooks.
- Professor Briffault notes that the procedural issue in Matter of Harkenrider, although a “close question,” was one that he thinks the majority ultimately got wrong. “What was the legislature supposed to do,” he asks, when the IRC failed to comply with constitutional procedures? He suggests that the Legislature was authorized to act in those circumstances, absent clear guidance or any express limitation in the Constitution on its authority to do so.
- But if the procedural question was close, Professor Briffault points out, the question of remedies was “less so”—and yet the majority’s answer was “inconsistent with both the text and the spirit of the constitution.” Returning the task of drawing district maps to the Legislature, he explains, would have been “a lot closer to the text than judicial arrogation of that function.”
- Professor Briffault concludes that, although the redistricting process this cycle did not go as constitutionally intended, there may be a silver lining: perhaps 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.”
Michael Li, A Win for Fair Voting Maps in New York.
- Michael Li serves as senior counsel for the Brennan Center’s Democracy Program, where his work focuses on redistricting, voting rights, and elections. He is a regular writer and commentator on election law issues, appearing frequently in print and broadcast media.
- Li hails the Court of Appeals’ decision as a “major win for fair maps.” He notes that many advocates were disappointed when the U.S. Supreme Court declined to stake a federal role in regulating political gerrymandering cases. But the “good news for voters” is that state courts have been willing to “step up where federal courts have stepped out,” and have had no trouble crafting standards for gerrymandering challenges that are “straightforward, manageable, and well within the scope of traditional functions performed by judges.” He concludes that “the fight for fair maps is showing unexpected vigor and American voters are the winner.”
Many thanks to the authors for contributing their thoughts, which of course are theirs alone and do not represent the views of TwentyEagle.
Posted on 2022-05-03.