The redistricting fight never ends.
Lawyers arguing the latest challenge to New York’s congressional map appeared in court on Thursday, the latest step in a lawsuit that could have implications on Democrats’ chances for retaking the House of Representatives in 2024.
This lawsuit, filed in Albany County last year, asks the courts to give the state’s Independent Redistricting Commission (IRC) another shot at redrawing New York’s congressional districts. A 2014 amendment to the state constitution directs the IRC to draw the district maps, but the state’s most recent set of district maps, which went into effect last year, were drawn by a court-appointed expert after the IRC failed to agree on a new set of maps to the state legislature for approval. The plaintiffs in the case contend that the IRC should have a second chance to send maps to the state legislature for approval.
In early 2022, the IRC – which is composed of an equal number of Republican-appointed and Democratic-appointed commissioners – deadlocked, leading the two groups of commissioners to send their own separate proposed maps to the state legislature. The Democratic supermajorities in the state Senate and Assembly rejected both proposals and drew their own maps, which were very favorable to Democrats.
The state’s highest court, the Court of Appeals, ultimately sided with GOP-backed plaintiffs who argued the procedure of enacting the legislature’s maps was done so unconstitutionally, leading a court-appointed redistricting expert to draw the maps instead. Those maps were much less favorable to Democrats, and Republicans won a number of close congressional races in New York last year.
That prompted a new group of plaintiffs – represented by lawyers supported by the Democratic Congressional Campaign Committee, the Democrats’ national campaign arm – to file a lawsuit last year aimed at getting those maps replaced. The plaintiffs want the court to order the IRC to resume its work and submit draft congressional maps to the legislature, as originally envisioned by the 2014 amendment to the state constitution.
"This lawsuit is really to vindicate the redistricting amendments, to actually see the process through,” argued Aria Branch, a lawyer representing the plaintiffs. “This is what New Yorkers voted for. This is what the Court of Appeals said in Harkenrider, that New Yorkers voted for a process that would have plans, that would have their origin in the collective and transparent work of the IRC. That is what we are trying to do, is to start that process over again."
A lower court judge flatly rejected that argument last year. “The question is whether the IRC has the authority to now submit a second redistricting plan corresponding to the 2020 federal census,” the judge said. “I think not!” The plaintiffs appealed the ruling, and a panel of appellate justices heard arguments in the case on Thursday.
Jessica Ring Amunson, an attorney for the Democratic-appointed members of the IRC, argued that the state constitution gives the IRC an opportunity to submit a new set of maps in the event that the legislature rejects its first proposal. But Justice Stan Pritzker challenged her assertion that the commission was denied a second chance to submit maps.
"The procedure is meant to ensure that the people that the IRC vested the power in to redraw these districts and who went around the entire state over a course of months to hear from people about how they wanted their communities to be represented, those are the people who should be doing the job of putting these districts in place," Amunson argued.
“Should,” Pritzker retorted. “But your group didn't. I mean, it would be better had you done it, but you didn't even submit a second map.”
The plaintiffs’ attorneys also argued that the current court-drawn congressional maps were an emergency remedy ahead of last year’s elections and were not necessarily meant to last for the next 10 years. They specifically pointed out that the Court of Appeals decision in Harkenrider v. Hochul, the case that led to the legislature’s maps being tossed out, never explicitly stated how long the remedial maps should remain in place. Both Presiding Justice Elizabeth Garry and Justice Molly Reynolds Fitzpatrick acknowledged that the high court was silent on how long the new maps were supposed to remain in place.
"And so here we are with no statement as to duration,” Garry said. “So awkward as it is for this court to be inferring, and you heard me ask the appellant’s counsel, that's what we're asked to do is to infer and look at the text of the law.”
For their part, the GOP-backed defendants noted that the state constitution only states that maps should be drawn when a new census is taken, which occurs every 10 years. They argued that the language of the constitution more naturally infers that any enacted map, no matter whether drawn by a court or the IRC, should remain in place until the next census.
"The constitution says that any map lawfully adopted is a 10-year map, so it wasn't in dispute in Harkenrider,” Misha Tseytlin, an attorney representing the GOP-backed plaintiffs in Harkenrider who are intervening in the case, said. “The only dispute in Harkenrider was whether there was enough time to do the remedy for the first year. There was no dispute among the parties until my friends raised this. Nobody even imagined that it would not be in place for the rest of the decade."
Unless the five-member 3rd Judicial Department appellate panel unanimously agrees to reject the case, the case is likely to be appealed to the Court of Appeals. The Court of Appeals’ makeup has changed since the last time it considered a redistricting case, in Harkenrider v. Hochul. Janet DiFiore, the court’s previous chief judge who wrote the Harkenrider decision, has been replaced by Rowan Wilson, who was one of three judges on the seven-member court to dissent from the ruling. With his elevation and the addition of Judge Caitlin Halligan to the court, it’s entirely possible that Democrats could successfully trigger a redrawing of New York’s districts.
Correction: An earlier version of this article misstated the number of judges who dissented from the Harkenrider decision.