Three-Judge Panel Questions New York Senate and Assembly Redistricting Plan

A three-judge panel in Brooklyn decided today they would not dismiss complaints challenging the constitutionality of the recently enacted New York state legislative redistricting plan.

The panel, Judges Reena Raggi, Gerald Lynch and Dora Irizarry, decided instead to bring the dozen or so lawyers on both sides of the case, Favors v. Cuomo, back into court this Friday at 9:30 a.m. to hear arguments on the constitutionality of the Senate and Assembly’s plans.

The judges said they still had unanswered questions about whether the plan was in violation of the state and federal constitution in several aspects: the number of Senate seats, in the apportionment of people per district upstate versus downstate, and in potential violations of both sections 2 and 5 of the Voting Rights Act.

Section 2 requires creating new majority-minority districts in areas where minority populations have grown to a certain threshold, and Section 5 requires that already existing minority districts aren’t diminished substantially from their current configurations.

The judges aren’t required to decide on the Voting Rights Act issues, but today the Judges displayed concern there wasn’t a clear path for those questions to be settled in time for the candidate petitioning period to begin on June 5th of this year.

The judges determined that the Court needed to resolve what they called “the tensions” between two very different redistricting cases that have both been summarily approved by the U.S. Supreme Court — the case of Rodriguez v. Pataki and a case from down in Georgia, the Cox v. Larios case.

The Rodriguez v. Pataki decision made it okay for legislatures to pass plans with districts that vary widely in size, up to 10 percent.  Cox v. Larios also allowed for big deviations but also said that plans drawn specifically to benefit one party or group in the state constituted a violation of the “one-person, one-vote” rule.

If the judges decide that New York needs to start operating more under the standards of Cox v. Larios (less partisan gerrymandering) instead of Rodriguez v. Pataki (anything goes as long as deviation’s not too big), that could potentially have a lasting impact on partisan gerrymandering in New York.

The judges ordered all parties to come to court Friday “prepared to argue their respective positions on how Larios and Rodriguez should inform the court’s decisions,” Judge Raggi said.

Judge Gerald Lynch said he found the Senate Majority counsel’s arguments in favor of dismissing the case “troubling.”

Lynch said the defendants seemed to be trying to “delay until the last moment and beyond the last moment,” the possibility of Court intervention, in the hope that “their plan would be in place no matter what.”

The court might have redistricting expert Nathaniel Persily begin gathering information that would help him to redraw some or all of the Senate and Assembly districts, in the event a plan is not in place by June 4th of this year. That question probably will not be decided until after next week though.

The redistricting question is clearly far from settled. The Department of Justice has said it expects to rule on whether or not the plan violates the Voting Rights Act by April 27th. A New York State Court of Appeals hearing on the constitutionality of the 63rd Senate district is scheduled for April 26th. If the DOJ finds any problems with the plan, the plan will have to be amended, and either passed by the Legislature and signed by Gov. Andrew Cuomo again, or the Federal court can decide to step in and draw the lines itself.

Counsel for the Senate Majority Todd Geremia argued that the court did not need to step in, because DOJ’s problems with the plan would likely be small enough to be fixed quickly.

“If [DOJ] rules they want more minorities in those districts, we frankly feed more Democrats into those districts,” Geremia said.

Plaintiffs’ counsel Daniel Burstein said the judge’s decision to hear arguments on the plan’s constitutionality was “the best possible outcome for us.”

“Frankly, I was surprised they even scheduled an argument on the motions to dismiss,” he said. “The [defendants] are saying it’s too soon to intervene but it’s perfectly clear that time is running out. If DOJ finds a problem with the plans, there will have to be a new plan. The other option, and I think the best option, is for the Court to fix the problem,” he said.

Another interesting issue here is that, if the Court decides that they are going to in some way overrule the Rodriguez Pataki decision and create a standard that leans more toward Larios against partisan gerrymandering, that could effect the Senate Democrats, if they were ever able to retake the majority. They would have to eschew partisan gerrymandering too, something Judge Raggi pointed out to Senate Democrats’ counsel Eric Hecker.

“We’re very comfortable saying that the redistricting of the state should be a relatively open process,” Hecker said, adding, “If some day my clients are in the majority, they’ll live with the consequences of that decision.”