As they evaluate New York’s Democrat-drawn legislative districts, here’s what judges are considering

The time before the June primaries in New York is quickly ticking away, but lawyers are still arguing over the fate of newly drawn district lines. Late last month, a state Supreme Court judge struck down newly drawn congressional districts on the basis of partisan gerrymandering, and also threw out the state legislative districts on the basis that the state Legislature overstepped its authority in drawing them.

The legal challenge took another step toward completion on Wednesday as lawyers for the governor, state Senate Democrats, Assembly Democrats and the Republicans who brought the lawsuit argued before a panel of appellate judges in Rochester. The judges have three main questions to consider in the first test of constitutional changes to the state redistricting process. And regardless of how they answer them, the case will almost certainly head to the Court of Appeals. 

Did the Democrat-dominated state Legislature have the right to draw new maps?

Voters opted to rewrite the state Constitution eight years ago to change the way electoral districts get drawn and make the process less political. An Independent Redistricting Commission was created with members appointed by both parties, but in its first attempt, the commission totally failed to agree on new maps, and the Democrat-dominated state Legislature ended up taking over.

Per the state Constitution, the Legislature has the right to draw new districts after first rejecting the Independent Redistricting Commission’s first proposals and then “fail(ing) to approve” a second set of maps sent by the commission. Except the Independent Redistricting Commission never sent a second set of maps for lawmakers to vote on. Good government groups have criticized the 2014 amendment that created the commission as poorly written, with ambiguity regarding the Legislature’s responsibility. 

Lawyers for the GOP plaintiffs argued that because legislators never rejected a second set of maps, they had no authority to redraw the lines themselves. Lawyers for Democratic legislators said that an absence of a vote still means lawmakers did not approve, opening the door for them to take over the process. 

Although the lower court judge ruled the Legislature overstepped, at least some judges in the Appellate Division who heard arguments on Wednesday described the Independent Redistricting Commission as “useless,” a “sham,” and simple “window dressing.” Good government groups have argued the same point in the years since the amendment’s passage. For that reason, the lower court’s ruling on the legislative authority could wind up getting overturned, leaving the state Senate and Assembly maps intact. “I think they quite well understood that the commission was designed with a lot of fallacies, that it was designed to fail, and that they're taking that into consideration,” Jeffrey Wice, senior fellow at the New York Census and Redistricting Institute at New York Law School, told City & State. 

Are the congressional district lines too gerrymandered?

The second question judges are considering on partisan gerrymandering with the congressional districts may be a tougher outcome to predict. This is the first time the courts are considering the change to the state Constitution to make such gerrymandering illegal. “The standard in the New York Constitution is whether there was an attempt to favor a party or not,” Michael Li, senior counsel for democracy at the Brennan Center for Justice, told City & State. “I think that there's certainly a lot of evidence – it’s hard to end up here truly randomly.” Among the more infamous of the new congressional districts is District 3, which stretches from Suffolk County on Long Island all the way to Westchester across the Long Island Sound. Li said that while lawyers for the governor and Democratic legislators have presented their defenses, it didn’t seem sufficient for the Appellate Division to overturn the lower court’s decision.

Wice offered a different opinion, calling the GOP plaintiffs’ evidence of partisan gerrymandering “flimsy” and saying it did not take into account the arguments made by the state on Wednesday. “I thought the judges also came down pretty tough on whether the criteria against favoring or disfavoring political parties or candidates is being given too much weight,” Wice said, pointing out that the Constitution has a number of criteria that maps must meet, with none taking priority over the others. That includes provisions against partisan gerrymandering. 

If new maps are drawn, when do they go into effect? 

That brings the final issue for judges to consider in the appeal: If new maps are ordered, will they take effect for the upcoming elections this year, or will they take effect in 2024? “That’s, like, the $10,000 question, the elephant in the room,” Li said, adding that the courts are truly up against the clock here. The GOP plaintiffs have floated the idea of moving the primaries back to provide more time to redraw the maps, as other states have done, but Li said that courts in New York “have been seemingly very, very reluctant to do that” in the past. He added he considered it “almost impossible” for any new maps to impact this year’s election cycle.

In this, Wice also agreed, referencing a recent U.S. Supreme Court decision preventing new maps from taking effect in Alabama due to the election cycle being too far along to feasibly permit for changes. “The plaintiffs here argue the voters, the Boards of Elections, can live with delay, because it's more important to have fair lines than it is to accommodate the electoral system,” Wice said.

Complicating matters further is the fact that while the Appellate Division stayed the lower court’s ruling for lawmakers to come up with new maps, it did permit the lower court judge to appoint an expert to help draw the new lines if the courts wind up taking over. It’s not clear whether that indicates that the current maps are likely to get tossed or the courts are simply taking a cautious approach. If the courts move quickly, voters and candidates alike will hopefully have answers to all of these questions by next week.