Redistricting is supposed to happen once a decade, after the latest Census data is released, but if New York Governor Kathy Hochul and Attorney General Tish James have their way, the state could reopen this particular can of worms. The Democrats have joined a legal effort to allow an independent redistricting commission to draw new lines rather than continue using the maps drawn last year by a court-appointed special master. Joining us once again for analysis is Columbia Law School Professor Richard Briffault.
For people who might not remember every twist and turn, how did we wind up in New York having lines that are currently in use for the current term drawn by a special master?
So, without going into too much detail, in 2014 the voters approved a constitutional amendment, which was designed to move the redistricting process for both congressional districts and state legislative districts into a different system. There was an independent redistricting commission, that was the name of it, which was going to be created with appointees from both parties. They were supposed to come up with a plan, which would then be submitted to the legislature, which would have to give it a yes or no vote without amendments. The legislature didn't approve it. The commission was supposed to come up with a second plan. Again, the legislature was supposed to give it a yes or no vote. And finally, if that second plan failed, then the legislature was supposed to adopt its own plans working from what the commission did. Well, the system broke down early on. The Commission did its initial part of the job. It got all the data, it had hearings all over the state and heard a ton of witnesses. But the commission divided 5/5 along party lines. And so, it was unable to come up with one plan and submitted two plans, one from each party to the legislature, which rejected both.
At that point, I think the legislature concluded and the commission then was unable to meet further because the Republican members essentially boycotted the commission. And therefore, the commission didn't have a quorum. So, legislature then went ahead and enacted its own plan. Democrats dominated both houses of the legislature and it was a plan that was seen as very friendly to Democrats. That was then challenged in court by Republicans essentially, who very cleverly brought their suit in an upstate, for an upstate judge, Republican upstate judge as it happened, who concluded both that the process had broken down, that the constitutional process had not been followed because the independent judiciary commission hadn't issued a second plan, and that the particular plan the legislature adopted for the congressional districts was an unconstitutional gerrymander. That went up to the Court of Appeals. The Court of Appeals ultimately agreed with that, sent it back to the trial court judge in Steuben County, who appointed a special master, who then wrote the plan that was in use in the congressional districts that we just had the election on in 2022.
Ay yi yi. How did the special master do?
Well, the special master, who was not from New York and was brought in from out of state, emphasized the creation of competitive districts. So, he departed from the traditional districting lines in many areas. I mean, New York lost one congressional district and there were population changes in different parts of the state. But in the past, districts were sort of based on prior districts, the cores of old districts. He departed from that considerably. The most dramatic one was in Manhattan, where for time immemorial, I think the east side and the west side had different congressional districts. He merged them. He did other things. Now, he did create a number of very competitive districts. As it happened, most of the very close districts went Republican in the last election. But they were close, many of them were quite close. So, he I think his goal was to focus on competitive districts rather than maintaining the cores of old districts.
Now, a cynic might say Democrats blamed the loss of their House majority in large part on those flips that you mentioned, largely in New York's Hudson Valley. Is this effort to revisit the lines potentially based on Democrats wanting to get those New York seats back?
That wouldn't surprise me. I'm not sure who began this case and there are some arguments that the lines broke out some traditional communities, including minority communities, but it is certainly possible. With a new set of lines drawn with the legislature ultimately involved again, they might be more favorable to Democrats. Again, the complaint, which is one that the governor and the Attorney General have signed on to, they entered as Amicus, so separately but supporting, is that the plan that were adopted in 2022 for the congressional district should be used only for 2022 and they should be seen as sort of an emergency or stopgap measure because there wasn't enough time at the end of April of 2022 to send the whole process back to the redistricting commission and to the legislature. But that the Constitution of New York basically requires that if flaws were found in a redistricting plan, and this one was found to be an unconstitutional gerrymander, it should go back to the legislature. So, what they want is actually to go back to the redistricting commission, which still exists and is actually working, because one plan that was never revisited last year was the plan for the assembly. The plan for the assembly, the problem that is that it had the same unconstitutional process and that it never went through two rounds of the redistricting commission. The legislature just picked up after one redistricting commission plan. So, that was also challenged but by the time that challenge was brought, it was too late to redo the lines for 2022. So, the legislature's lines were used in 2022 but the IRC, the Independent Redistricting Commission, is up and running and actually should later this month issuing a new assembly plan, which will then go to the legislature and this time the IRC seems to be working collaboratively. The two parties seem to be getting along much better than they did in 2022. So, the theory of the lawsuit is that we do have an IRC, Independent Redistricting Commission, that is up and running, we should send the congressional districts back to them. Treat what happened in 2022. Treat the special masters plan as a kind of a response to the emergency of needing to have a plan in place for the 2022 election, but then, in some sense, return to the constitutional process that the voters approved in 2014. That is the theory of the case.
Do you think that argument has merit?
I think it does actually. That doesn't tell me that it's going to win. But I think it has a lot of merit. The Constitution clearly says that if a plan is found to violate the rules of the Constitution, in this case a partisan gerrymander, it should be sent back to the legislature. Even though the reform system that the voters adopted in 2014, ultimately was still supposed to be the legislature's call. They were supposed to look at and take seriously the plan submitted by the IRC, but ultimately the legislature would decide subject to the constitutional standards that the voters also adopted. So actually, I think there is a lot of merit to the argument that whatever happened in 2022, and this has nothing to do with the wisdom or not of the special master’s plan, but that the Constitution really treats this as ultimately a legislative matter. You need it as a stopgap or as an emergency, a special master in ’22, but we should try it and stick to the constitutional process as much as possible and it is it possible to do it again.
Does history here play any role, though, given the fact that the special master only got involved when the commission deadlocked, and the legislature drew what were deemed to be gerrymandered lines? So, haven't they already had a chance at this?
Well, one question is, how would they do if they were given a second chance? I mean, I think the constitution does say that if any lines are found to have violated the constitutional substantive requirements, the court should send it back to the legislature. It may be that the legislature will have learned its lesson, that if they're too greasy, if they grab too much they'll be slapped back. And what clearly did happen in 2022 is courts at all levels agreed that the new restriction in the Constitution, in addition to creating the new process of having this redistricting commission, there are new substantive rules. One of which is a prohibition on partisan gerrymandering, it's actually in the Constitution. The legislature found out that the courts are willing to give that some bite. And so yes, one can imagine a Democratic legislature might come up with more Democrat friendly lines, but the lesson from 2022 is there's limits as to how far they can go and the courts will enforce those limits. So, I don't I don't think it would be futile to go back to the IRC, I understand that's a legitimate concern. The IRC deadlocked once; the legislature blew them off once. Why won't that happen again? I think if they're paying attention to what happened in 2022, everyone will be more careful and you can get some optimism from the fact that it looks like the assembly redistricting process that the IRC is currently doing seems to be, we’ll know better by the end of month, seems to be working in a more cooperative way.
Other states have had to redraw lines in the middle of the 10-year census period; North Carolina, Texas. Is there a precedent for throwing out the special master in other states and doing a second set of new maps for the second election after the census?
I don't know enough to answer that completely. I think there is precedent for courts are basically adopting lines for one cycle in order to deal with an election that's coming up. Now, that's not literally what the court did this time. The Court of Appeals didn't say we're going to do this for the short term. The assumption was, I think that these lines were going to govern for the decade. But in other states, there courts have distinguished between the need to get something in place for election that’s six months away, and the idea that that they are going to govern for the full 10 years. So, I can't really answer whether or not we've had situations where special master’s lines were scrapped as a result of a challenge brought to them later. But the other thing that's interesting here is, we do have this process that the voters adopted in 2014, and it does call ultimately for the legislature to make the call. That didn't happen last time, and you could also criticize, not so much criticizing the special master’s lines as the special master’s process. The master drew them, there was one public hearing. Much, much, much less process than the process of the Constitution calls for the IRC to use. The IRC were given this, say there's a decision to give it to them say, by this summer, this fall. They would have like 4-6 months to hold public hearings online, as they did in 2021. And actually, get a much more informed and have much more public input and much more public process, which is something that the state constitution contemplates.
Well, you've touched on my last question for you. Already, we're covering candidates emerging, challengers who have thrown their hats in the ring for the next congressional cycle. Is there enough time to start this process over?
There is. I mean, you point to a good point, which is that the new lines are in place, people have begun to get used to them. Many of the winners last time won by very narrow margins. So, we can imagine it's not like the number of the seats that the Republicans picked up, they didn't win by very big margin. So, I can imagine Democrats being willing to run on those lines, any change would be disruptive, and that would be one reason not to make the changes, but there is time. I mean, if the process were to get underway, say this summer, it could be resolved by the end of the year, in which case there'd be you know, the process could gear up at the start of next year. It's true, there'll be some uncertainty as to what the lines would be for particular districts and that's a downside, that's for sure.
