A mid-level state appeals court has ordered new congressional lines be drawn for New York. The ruling could benefit Democrats in the 2024 battle for control of the U.S. House. The appellate division of the state Supreme Court reversed a lower court and directed to state redistricting commission to start work on new proposed state congressional lines. Democrats are supporting the lawsuit, which seeks to scrap the 2022 lines in New York, under which Republicans flipped four congressional seats. Republicans quickly pledged to take the politically charged case to New York's highest court. Joining us once again is redistricting expert Richard Briffault of Columbia Law School.
What do you make of this latest twist in this long-running disagreement?
Well, it's an interesting case and of course, we're not going to really know the answer until the Court of Appeals decides this case. So, the claim that the plaintiffs are making and they're basically being essentially Democrats, and they're supported by Governor Hochul and the and the State Attorney general, Tish James, is that the plan that was adopted by the Special Master working for an upstate judge in 2022, was basically a placeholder. The Court of Appeals found that the State Legislators Redistricting Plan violated the Constitution in several ways. both in terms of procedure and in terms of gerrymandering, but said that time is short, it was already springtime and primaries were coming soon. Given the tightness of time, the matter should have a Special Master to draw the lines. What was unclear, was whether or not that meant just for the 2022 elections or they’re for the rest of the decade. And what the plaintiffs are claiming is that this was basically an emergency matter, a time pressed matter to get the lines drawn right away. But that now that that's been taken care of, we should go back to the procedure that the voters adopted when they passed the constitutional amendment, setting up the redistricting commission, and then it should all go back to the commission. That's what they're literally seeking an order to the commission to start work on congressional lines. And then ultimately, those lines are going to go to the legislature. And that, in turn, would probably go to a judicial review. But and basically to restart the process, a process that was stopped in 2022 because of a partisan deadlock.
Do you think that argument has merit?
It's a close question. I think there's a lot of tea leaf reading about what the Court of Appeals actually say, and it can be read both ways. I think the strongest part of the argument for doing this is that the Congress constitutional amendment, the voters adopted, said that they really want this to go through the redistricting commission process and then the legislature, and that the commission and even the constitution amendment said that if a court finds that a plan is invalid, it should be sent back for correction, rather than being resolved in the court. So, the strongest argument the plaintiffs had is that this is more consistent with the process the state constitution lays out. I think the strongest argument for the defendants, essentially Republicans is, “Hey, we did this to redistricting, everyone. It was a fair plan. It produced competitive districts. Leave it until 2050.”
The Independent Redistricting Commission ultimately deadlocked. It didn't work. Will that weigh on the upcoming decision at all, the fact that it has been tried?
Well, it did deadlock on the Congressional and Senate plans. But interestingly, the litigation last year, the plaintiff, the Republicans didn't challenge the assembly plan. They later challenged the assembly plan and that went to court and the court then sent that back to the Independent Redistricting Commission and this time that commission actually made a deal. The Commission broke the deadlock. There were some membership changes. Maybe there was less controversy with the district lines. I'm not sure. But I think at the very end of last year, or the very beginning of this year, the Commission actually came up with a new assembly plan, which the legislature approved. So, I think the plaintiff’s argument is going to be, “Yeah, they were deadlocked last time. But now they've shown that they can actually make a deal. And maybe everyone is going to be on better behavior now because they know what the consequences are of not making a deal.” But you're right last time the process failed, and would be better this time? The work on the assembly plan, gives some grounds for hope, but we don't know.
How do you think the Court of Appeals will decide the case? I think it's fair to say it's seen as a fairly, you know, sort of progressive body.
It's going to be close. I mean, I think as you know last time there was division in the court. The majority basically found both that the procedure had been violated, and that the plan was a gerrymander. That was actually, I think, more than four to three. But there was a division over the remedy and only four judges have supported the remedy of sending it back to the lower court to it to use a Special Master. And of course, one of those judges Chief Judge DiFiore is gone. The media focuses a lot on fact that she's been replaced as chief judge by somebody who was already on the court, but the real important person is Caitlin Halligan, who's the new judge and is the only new judge for the court who has not participated in this before. We'll see where she comes out.
I want to go back and talk about the Special Master for a moment. Now that we have seen the current lines in place for an election and now for a good chunk of the Congressional term, what's so bad about the map that he drew? Even if it wasn't the way that it was supposed to happen, it's what did happen.
Right. That's a fair point. And the one argument is, is he may have drawn a good map. But it wasn't the process that the voters adopted when they passed the Constitutional Amendment. That's probably the strongest, the legally strongest argument. There were some criticisms of the map, in that in his effort to create very competitive districts, he drew districts, he departed from a lot of traditional districting the way traditional counties are, or areas are grouped together. As you know, in Manhattan, historically, the east side and the west side, were in different districts for decades and decades and decades and he created a district where they were together, which was very unusual. And as I understand it, there were some similar departures from traditional districting lines upstate. So, there may be some argument that he may be pursued competitive districting too far, and went too far from what local communities would have liked. But I think the bigger argument is that Constitutional Amendment envisioned the process that used as the Redistricting Commission, not the use of a single judge with a single Special Master.
It's really an important decision. I mean, everyone in America knows that the Hudson Valley seat flips were pivotal in giving Republicans control of the House. So, this could really weigh on how 2024 goes.
Absolutely. I mean, these things are happening in a number of other states. In North Carolina, the flip in the opposite direction. The North Carolina Supreme Court had found the legislature's plan to be a partisan gerrymander, and ordered new districts. And then, the North Carolina Supreme Court's composition changed and now they've basically said, “No, it wasn't a gerrymander. The legislature can create districts again.” So, that's likely to help Republicans, the result of the Supreme Court decision on the Voting Rights Act, Democrats may pick up a district or two elsewhere in the south. You're right. The control of the House of Representatives is very close. Districting is not the only thing going on, obviously, the 2024 election will matter in every respect, including districts that are not going to be re-redistricted. But certainly, if district lines change in a handful of states, including New York, that could have an impact.
Let me wrap up by asking you a question I always ask you. What is the timeline for this? People are already running for Congress in 2024 in New York State under the current lines.
That's hard to say, but it's not that late as what I would say. Remember, the districting in 2022 Wasn't really resolved until the spring of 2022. So, we're about eight months away from that. I don't know how quickly the Court of Appeals will take it, presumably they'll take it reasonably soon. We get a decision out of the court of appeals sometime in the Fall. That gives the redistricting commission I think, enough time to come up with a plan to get into the legislature, the legislature to do what it does. And for that to be reviewed, I mean, could be tight. Much will depend on how quickly the Court of Appeals Act. It is only July. It is not too late for a change this year. But as I say, and of course, the Court of Appeals could decide to reverse the Appellate Division and keep the current lines intact. But you know, we're not going to know for a while.
