How a Republican lawsuit against Democrat-led redistricting could play out in court

There’s little doubt that state Republican lawmakers will sue to overturn Democrat-drawn redistricting maps that would give the competing party the advantage in Congress and the state legislature for at least the next decade. The fate of their lawsuit will likely be tied to a constitutional amendment adopted by voters in 2014 that was supposed to outlaw partisan gerrymandering – a debate that would be new territory for the courts.

“This language is new, it’s never been interpreted by the courts and none of the judges on the court of appeals have ever addressed an issue like this before,” Michael Li, senior counsel for the Democracy Program at the Brennan Center for Justice, told City & State. “So we don’t know how they’re going to react to it and how much teeth they’re going to be willing to put into it. Or whether they’re going to be very deferential to the legislature.”

The 2014 amendment included anti-gerrymandering language and established a bipartisan redistricting committee, made up of five Democrats and five Republicans, to draw the maps. The committee failed to come to an agreement, putting the task in the hands of the Democrat-controlled state legislature.

Jeffrey Wice, an adjunct professor and senior fellow at New York Law School, predicts Republicans will have an uphill battle based on the state courts’ long history of upholding redistricting plans. In 2012, Democrats lost their court battle over a Republican proposal to add a 63rd seat to the State Senate.

“Although the court was a bit skeptical, it let the decision to increase the size of the Senate move forward,” Wice told City & State. “So now you have Republicans in the Senate accusing Democrats of doing the very same things that they did over the last half century, and that’s nothing new.”

Wice said Republicans could hang a lawsuit in state court on a procedural misstep after the committee’s failure. GOP lawmakers have indicated they plan to take this route. 

"Democrats’ closed door map making is a shameless, partisan example of gerrymandering at its worst," Senate Minority Leader Robert G. Ortt said. "We anticipate a court challenge, and are confident that a challenge will ultimately be successful."

Democrats made the same argument about the state Senate map in 2014, Li noted, which could dilute the Republicans’ gerrymandering claims this time around. 

“When Democrats say ‘oh we’re undoing a gerrymander,’ those claims have more legs when you’re talking about the state Senate map opposed to the congressional map,” Li said.

Democrats, meanwhile, have said 2022 maps are a fair correction to the lines drawn in 2012 that favored Republicans in the Senate, where they held the majority for the bulk of the last 50 years.

"New York is a deep blue state. We all know this," Deputy Majority Leader Sen. Michael Gianaris told WNYC. "It's well known nationally. So when the maps are drawn fairly, it's going to be a result that reflects that reality."

Li said Republicans would have had a strong argument that the congressional map is a clear example of partisan gerrymandering under the John Lewis Voting Rights Act, which is currently stalled in Congress thanks to GOP resistance.

“The degree by which the New York map fails the gerrymandering test in the Freedom to Vote: John Lewis Act puts it in the same league as pro-GOP maps in TX, GA, NC, and OH (the latter ordered redrawn by a state court) and pro-Dem maps in Illinois and New Jersey,” Li Tweeted.

Any Republican lawsuit will be racing the clock to push the legal dispute before petitioning begins in March ahead of the June 2022 primary. The courts could delay the election – something that happened in North Carolina in 2021 and Texas in 2012 amid redistricting battles – but it’s more likely the 2024 election would be impacted by any successful lawsuit, according to Li.

“I think they’re going to have to hang their hats on the partisan fairness language that was added to the Constitution and claim that Democrats are just being pretextual,” Li said. “And I think Democrats are going to take advantage of some of the ambiguities in the way the criteria are written to argue that they were not trying to do political things.” 

Following Wednesday’s approval of the congressional maps, and approval of the legislative maps on Thursday, they now head to Gov. Kathy Hochul’s desk for sign-off.