Democrats lose a big court battle by partisan overreaching in drawing districts.
Democrats lose a big court battle by partisan overreaching in drawing districts.
L ast week, an appeals court in New York threw out the Democrats’ congressional map for the state, while rejecting Republican challenges to New York’s state-senate and state-assembly maps. This afternoon, the New York Court of Appeals — the state’s highest court — ruled that both the congressional map and the state-senate map violated the state constitution.
The opinion, captioned Harkenrider v. Hochul, was written by Chief Judge Janet DiFiore, an Andrew Cuomo appointee. All seven members of the court are Democrat-appointed. The court ruled 5–2 that all three maps had been illegally drawn by the state legislature instead of by a bipartisan commission, and it further ruled 4–3 that the congressional map was an improper partisan gerrymander. Some sparks flew on the court, as Judge DiFiore accused dissenting Judge Rowan Wilson of writing “a nonsensical advisory opinion” on the proper remedy.
The court ordered the June 28 primaries for Congress and for the state senate delayed until August and ordered that new maps be drawn by the courts. (Republicans did not challenge the state-assembly map before the court of appeals, so it will survive.) Because it was based entirely upon state constitutional law, the Harkenrider ruling cannot be appealed to the U.S. Supreme Court.
How We Got Here
Some background: In 2011, Andrew Cuomo, the newly elected governor, proposed legislation to hand over control of redistricting to an independent commission, a move seen at the time as an effort to cut Republicans (who had held the state senate for all but three years since the Second World War) out of the process. Cuomo ended up cutting a deal, hated by progressives, that drew a favorable gerrymander for Democrats in the state assembly in exchange for a favorable gerrymander for Republicans in the state senate. In 2018, Democrats finally took control of the state senate; in 2020, they expanded that to a 43–20 supermajority. Democrats now have total control of state government and the will to use it to crush their enemies.
Unlike its state legislative maps, New York’s 2011–12 congressional map was drawn by the courts when the two sides could not agree. Since then, Republicans have hovered between six and nine of the state’s 27 seats in the U.S. House of Representatives. New York has lost at least one House seat in every census since 1950, and that streak continued in 2020, taking a state that once boasted 45 congressional districts in the 1940s down to 26, as of 2022, and likely to continue falling.
Cuomo’s 2011 deal also put an initiative on the ballot in 2014 to add to New York’s constitution an independent redistricting commission and a ban on partisan gerrymandering. That initiative was designed to deflect charges of grubby, crooked partisanship on the part of the grubby, crooked partisans who cut the deal. The voters approved the initiative, and then in 2021, rejected a ballot proposal to strengthen the Democrats’ ability to gerrymander by watering down the 2014 initiative.
The independent redistricting commission (IRC) is supposed to prepare bipartisan maps that are submitted for an up-or-down vote in the legislature. As is often the case with such commissions, however, New York’s commission deadlocked. So the legislature just went ahead and drew its own maps, including a congressional map that was universally recognized as perhaps the most extreme partisan map in the whole country, creating 22 Democratic districts and just four Republican districts. Republicans challenged the maps on two grounds: that the legislature violated the required process, and that the maps were unfair partisan gerrymanders.
The Maps
As I explained previously, the new congressional maps heavily favored Democrats:
The New York map . . . combined two upstate Republican districts (NY-27, which was R+16 in the 2020 presidential election, and NY-24, which was Republican-held but D+9) into a single R+20 district based around moderate Republican John Katko. The map otherwise packed more Republicans into two districts, Andrew Gabarino’s Long Island–based NY-2 (R+4 to R+14) and Elise Stefanik’s NY-21, which went from R+10 to R+19. But balanced against that, five districts swung dramatically toward Democrats:
NY-1 (Long Island Republican Lee Zeldin): R+4 to D+11, by draining Republicans into Gabarino’s district
NY-11 (Staten Island Republican Nicole Malliotakis): R+11 to D+10
NY-18 (lower-upstate Democrat Sean Maloney): D+5 to D+8
NY-19 (lower-upstate Democrat Antonio Delgado): D+1 to D+10
NY-22 (upstate Republican Claudia Tenney): R+11 to D+18
Looking at the maps and using the Daily Kos Elections data, we can illustrate that shift further. For example, on Long Island, Democrats carved out the blue parts of NY-2 and NY-3 (the district being vacated by Tom Suozzi) with nearly surgical precision, turning Zeldin’s district blue by adding a long finger that snakes through the center of Long Island. Yet, NY-3 got bluer in the process!
In New York City, there is NY-11, the Republican-held district covering Staten Island. Democrats were so determined to flip that district that they added voters from four other districts (NY-7, NY-8, NY-9, and NY-10) to turn Nicole Malliotakis’s district blue, while drawing a bizarre jumble in the borders between NY-13, NY-14, NY-15, and NY-16 north of the city.
Upstate, NY-22 is barely the same district, substituting Ithaca and Syracuse. Only 11.5 percent of the voters in Claudia Tenney’s district remain in the new NY-22. And 41 percent went to Anthony Delgado’s NY-19, and 25 percent to Elise Stefanik’s NY-21.
The Princeton Gerrymandering Project rated the New York map an F, with a C for partisan fairness but an F for geography (the compact shape of districts and keeping counties together) and an F for competitiveness.
Breaking the Process
The Court of Appeals ruled first on the legislature drawing its own maps, concluding that allowing this process rendered the 2014 initiative “functionally meaningless.” The legislature complied with none of the detailed transparency requirements of the state constitution, such as “no less than 12 public hearings throughout the state” to discuss the commission’s maps before the legislature votes on them. The court concluded:
Article III, § 4 is permeated with language that, when given its full effect, permits the legislature to undertake the drawing of district lines only after two redistricting plans composed by the IRC have been duly considered and rejected. Moreover, the text of section 4 contemplates that any redistricting act ultimately adopted must be founded upon a plan submitted by the IRC; in the event the IRC plan is rejected, the Constitution authorizes “amendments” to such plan, not the wholesale drawing of entirely new maps.
Those of us who are skeptical of these sorts of commissions will note that this put the legislature in an impossible position when there were no commission-drawn maps to consider. But the alternative of simply allowing the legislature to ignore the process if the commission breaks down presents its own perverse incentives against cooperating in the commission process. As the court noted, the deadlock in the commission came when its Democrats decided to stop working on a “consensus map” after agreement had been reached on many of the lines. The court also rejected arguments that enforcing the commission process would incentivize obstruction by the minority party:
Legislative leaders appoint a majority of the IRC members and, in the event those members fail either to appear at IRC meetings or to otherwise perform their constitutional duties, judicial intervention in the form of a mandamus proceeding, political pressure, more meaningful attempts at compromise, and possibly even replacement of members who fail to faithfully perform their duties, are among the many courses of action available to ensure the IRC process is completed as constitutionally intended.
With regard to partisan unfairness, the Court of Appeals did not perform a detailed analysis in its opinion but found that the lower courts had a reasonable basis to accept the expert analysis of Sean Trende showing that, as he put it, the pattern of relocating Democratic voters as efficiently as possible was “the DNA of a gerrymander.”
Starting Over
If this lawsuit were heard in federal court, the courts would invoke the Purcell principle against throwing out a map close to an election. But state courts are not limited by the Purcell rule, which is one of prudent federal-court regard for states. A federal court would be on much more tenuous ground trying to do what the court here did — simply postponing a state primary election. From the court’s perspective, “we are left in the same predicament as if no maps had been enacted.” It therefore imposed a broad remedy: postponing the June 28 primary for congressional and state-senate races until August. The June date will remain for the state’s gubernatorial and state assembly primaries, but New York until recently held two separate sets of primaries.
Sending the case back to an upstate trial court to draw new maps with the help of an impartial “special master” hired for the process is obviously good news for Republicans. But the upside is limited. The GOP’s state-senate majority is not coming back, absent a massive red wave. And one way or another, the loss of upstate population probably means that Republicans will face a hard road winning eight House seats in an ordinary year in New York. Still, a more balanced map should draw more than four reliably Republican districts and ends a period of Democratic enthusiasm about restoring their traditional advantage in gerrymandering the House.