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Legal scholar Richard Briffault discusses latest development in New York's redistricting saga

"These are not the final lines. But these are lines that were approved by Republicans and Democrats in the redistricting commission." ~ Blair Horner, NYPIRG
Independent Redistricting Commission
/
New York State
"These are not the final lines. But these are lines that were approved by Republicans and Democrats in the redistricting commission." ~ Blair Horner, NYPIRG

New York’s Congressional district lines are in flux once again.

The state’s highest court last week ruled the districts, reconfigured for the 2022 elections, can be redrawn again for the 2024 elections.

To learn more the legal challenge that brought us here and what’s to come after the 4 to 3 ruling, WAMC's Lucas Willard spoke with legal scholar and professor at Columbia Law School, Richard Briffault:

Republicans did pretty well in 2022. It's not clear how much of that was the maps and how much of that was just the politics of New York in 2022.

Democrats, basically, then challenged this by saying, ‘We're not challenging the use of those special master maps in 2022, but we read what the court, what the Court of Appeals said is that the reason to use a special master maps, now, is because there's no time for the legislature, for the IRC or the legislature to do the job the Constitution requires when we think those maps should only be used in 2022 and that the process should be started up again, in 2024, and in particular, should go back to the IRC, and the legislature should get another shot at it.’

And that was that's the litigation that's been happening. And that's what the Court of Appeals just decided that the Democrats were right about that by a four to three vote. They basically said that that the maps that were adopted in 2022 were only because of the need to get maps in place for 2022. But the Constitution really requires that we really prefer something to come through the IRC and federal resisting commission and legislative process. They basically said, we're sending this back to the IRC and they have to do that second set of maps that they never got around to in February of 2022.

Democrats are happy with this ruling. Republicans are not. And with more Republican friendly maps arguably used in the last election cycle, congressional election cycle, the GOP managed to pick up a few seats in New York, and that helped establish the current Republican majority in the House. So, is this new redistricting effort that will be underway in New York, do you believe that that's going to attract national attention and potentially a lot of money?

It already has attracted national attention, and quite possibly could attract, and there'll be a lot of money spent on the Congressional elections, and certainly a number of the freshmen Republicans in New York who won on new districts, let's see what happens to their districts. So I think, yeah, there's obviously going to be a lot of attention there. I’m not sure of a number, I think, five Republican freshmen and one of them was George Santos. So, there are now four Republican freshmen who want on the lines that were drawn by the special master, and we don't know what's going to happen. But of course, there's a decent chance that those that those lines will be changed.

So, let's talk about the Independent Redistricting Commission. Do you think that they will take another stab at it even, after the deadlock that we saw a couple of years ago, perhaps under a different set of rules? Or maybe the legislature will step in and reshape the makeup of the Independent Redistricting Commission?

I don't know that they can do that, at least not without new legislation. And I'm not even sure whether or not that's consistent with the constitution, whether we need a constitutional amendment. The composition has changed a little somewhat, I mean, the partisan split is the same. Some members have dropped off and some have been replaced. They did manage to write new Assembly maps that they agreed on in late 2022, I think, at some point, I forget. Yes, I think it was in late 2022, they actually wrote new Assembly maps. And, and there was a consensus, it might be that all they need to do is actually submit two maps again, the problem they last time is I didn't have actually sufficient quorum to submit any maps. For the second, the Constitution require basically t two rounds of maps. So it may be that all they need to do actually is submit even two dueling maps this time. And now they are under a court order. They were not under a court order before. But the Court of Appeals did issue a writ of mandamus. So they actually, I think, have to produce something. And that will give something to the legislature to work from.

Now the legislature can still reject those maps, correct?

Yes, that's right. So, constitution says in the end, the legislature has the final say they have to go through the process of having, receiving and considering the IRC maps and actually having the IRC maps becomes one way of testing whether or not the legislatures is gerrymandering. The Court of Appeals decision a year ago, I guess, it was closer to two years ago, in the spring of 2022. Spring of 2022. Yep. Striking down what the legislature did basically said both that they violated the process by jumping the gun and not working from a second set of IRC maps, and that it was a partisan gerrymander, so that that could still be a possibility. So, I do think whatever the legislature does, they have to be aware of the fact that the ban on partisan gerrymandering is a live provision in the state constitution. That doesn't mean they can't change the maps that are currently in place. But it doesn't mean they'd have to be show they have to show that it's consistent with other criteria, population equality, communities of interest, respect for political subdivision boundaries, representation of racial minorities, the constitution has a whole bunch of criteria that are in it. And they'd have to show that they are respecting those criteria. T

There’s been other states where district lines have been thrown out. And those states have had to redraw congressional lines or state legislative lines. Is this something that you think is building momentum, if you will, that there is more scrutiny on district maps than perhaps a few years ago, when people weren't paying as much attention to this issue?

I think people have been paying a lot of attention this issue for quite a long time. So I don't think there's more. I think what you're seeing now is in a number of states, you're getting second rounds, which, that is less common, that you're having actually, people. in the past three distinct was normal, even with litigation, it was normally done by the first round of elections after the census. And now we're actually seeing litigation, even, for the second set of elections after the census. And you're also getting, I think, some states are more, are better than others in implementing plans done by…there's there are a few more independent commissions out there. Now, they're not always all that independent. And they don't always get enforced by their legislature. So you're also seeing some conflicts between legislatures and independent commissions or conflicts or challenges to some of the works of these commissions. But it is interesting that we're probably seeing more second round litigation, in other words, not just litigation in the year of the of the initial redistricting, but litigation for the second, for the second time the maps are being used. And that's, that is I think, maybe that is new, or at least more of it now than in the past.

So, back to New York State, how do you expect this to play out for New York residents who at this point, may be experiencing a bit of redistricting fatigue, if you will? Do you think that they're actually going to be paying attention to it…

We'll have to wait and see what happens in February. I mean, I think the deadline for the commission is the end of February. I mean, they don't, they don't have to go out and begin the process all over again, they can pick up from where they left off. We'll see what they do and what the legislature does, and then whether there's a challenge to what the legislature does with the IRCs maps. The legislature, you know, last time a lot of people thought that the legislature had really gone, had developed maps that tilted, very Democratic and they would be wise to be more careful this time, even if they want to make the map a bit more Democratic than it's been now. It would be very wise not to go too far. Because otherwise they're gonna get sued again. Well, they'll probably get sued again, no matter what. But the question is, how will that suit fare and I think if they can, they're gonna have to defend, they really are going to defend whatever maps they come up with.

Lucas Willard is a reporter and host at WAMC Northeast Public Radio, which he joined in 2011.