VESTAL, NY (WSKG) — On March 3, about a dozen lawyers crammed into a small courtroom in the Village of Bath, in New York’s Southern Tier, to argue a case that could change the way the state’s 13.4 million voters are organized into legislative districts.
As far as New York’s Democratic leadership is concerned, the matter has already been settled. In February, the state Senate and Assembly passed, and the governor signed, a bill establishing new legislative districts.
But a group of 14 citizens — organized and funded by Republican politicians like John Faso, the former congressman and Assembly Minority Leader — argue that the new districts have been drawn in a way that unfairly favors Democratic politicians, in violation of a 2014 amendment to the state Constitution that prohibits such gerrymandering.
That amendment established a nominally independent commission to propose new legislative district boundaries — but the commission hit a partisan impasse and failed to agree on a plan, which prompted the Legislature’s Democratic majority to draw and approve its own map.
Republicans have cried foul.
“The Democrats’ position is kind of akin to the guy who murders his parents and then throws himself on the mercy of the court because he’s an orphan,” Faso told reporters after the March 3 court hearing. “They created this unconstitutional map.”
Not So Independent
The current legal dispute over the state’s maps has its roots in decades of fighting over partisan gerrymandering in the state, most recently in 2012. After state legislators couldn’t come to an agreement on congressional district lines, a federal court intervened and drew a map.
In 2014, voters approved a constitutional amendment establishing the Independent Redistricting Commission (IRC). The IRC is bipartisan, rather than nonpartisan, with members selected by the majority and minority leaders of the state Senate and Assembly. Unlike the citizens’ redistricting commissions in other states — like California, Arizona and Michigan — the IRC lacks the authority to approve its own map. Its proposal must be approved by the state Legislature and governor in order to take effect.
At the time that the amendment was passed, control of the Legislature was split; Democrats controlled the Assembly, but Republicans controlled the state Senate. Within a few years, however, the Democrats had won supermajorities in both the Assembly and the Senate, giving the party effective veto power over the IRC’s maps.
“There was just no real incentive for Democrats, once they got that two-thirds majority, to really want to play ball, to not do whatever they wanted to do,” said Shawn Donahue, an assistant professor of political science at the University at Buffalo.
This year, the Democrats took advantage of that power.
After months of hearings at the cost of millions to taxpayers, the IRC failed to come to a consensus on a single set of congressional and state Legislature maps to deliver to the Legislature for approval. Instead, the IRC sent two proposals to the Legislature — one endorsed by the Democratic members of the commission and one endorsed by the Republican members of the commission.
Rather than approve either proposal, the Legislature voted down both maps and proceeded to draft its own map, which was then approved by Gov. Hochul.
So much for an independent process.
“We did not have an Independent Redistricting Commission. We had exactly the opposite,” Susan Lerner, executive director of the good-government group Common Cause New York, told New York Focus.
Lerner said that under a truly independent process, lawmakers would never have had the option to reject the IRC’s maps and substitute their own. Doing so clearly violated the spirit of the constitutional amendment that established the IRC, she said.
But did it actually violate the law?
The 14 petitioners and their Republican backers filed a lawsuit in Steuben County Court seeking to have the maps thrown out on the grounds that they are unconstitutional.
The petitioners argue that the Legislature’s maps are unconstitutional for two reasons: because the Legislature never gave the IRC a second chance to draw new maps after rejecting its first proposals, and because the Legislature’s maps are drawn in a way that unfairly advantages Democrats in congressional elections.
The first argument relies on a very strict reading of the 2014 state constitutional amendment, to the extent that an entire page of the petitioners’ legal brief is dedicated to the meaning of the word “the.”
The gist of the argument is that the Legislature violated the process spelled out in the constitutional amendment — which states that the IRC must submit a proposal by January 15, the Legislature must vote to accept or reject it, if the proposal is rejected then the IRC must submit a second proposal by February 28, and if that proposal is also rejected, then the Legislature must step in to draw its own maps.
Since the IRC never got the chance to submit a second set of maps, the argument goes, the proper process wasn’t followed and the resulting maps must be illegitimate.
Donahue, the University of Buffalo professor, said that he is not convinced by this argument, because even if the process was followed exactly as prescribed in the Constitution, it would not have changed the outcome.
Robert Rosborough, a practicing attorney focusing on appellate litigation and author of New York Appeals blog, agreed that the petitioners’ argument is strained.
“The provision that was adopted in the Constitution set up this process — so if the process fails, it didn’t divest the Legislature of the ultimate power to adopt a map,” he said. “The process is the Legislature ultimately adopting a map and the governor signing it.”
The petitioners’ second argument is more straightforward — that the Constitution prohibits drawing maps designed to benefit a certain political party, and the Democrats in the Legislature did just that.
Experts generally agree that the new map of districts is more favorable to Democrats than the previous map was.
“It’s definitely skewed towards Democrats significantly,” Nathaniel Rakich, a senior elections analyst at FiveThirtyEight, told New York Focus. “I think the insistence that you saw from a lot of state legislators [who said] ‘Oh it was a fair map, oh we didn’t draw it for partisan gain,’ is just pretty clearly not true.”
Rakich estimates that 85 percent of the districts favor Democrats, despite Democrats making up only 60 percent of registered voters in the state.
Currently, New York has 27 congressional districts — eight of which are represented by Republicans and 19 of which are registered by Democrats. The new map has 26 congressional districts. If voters cast ballots similarly to how they did during the 2020 elections, Democrats would carry 22 of those districts while Republicans would only carry four.
Although the map clearly benefits Democrats, that does not automatically mean it is unconstitutional.
“The way that the court of appeals and appellate courts in New York generally handle these types of constitutional claims, the challengers have a very heavy burden,” Rosborough said. “Their burden is to show that the law is unconstitutional beyond a reasonable doubt.”
The problem for the petitioners is that it’s not enough to show that the map benefits Democrats; they also have to show that the map was deliberately crafted to benefit Democrats.
That is hard to do since there are many different ways to evaluate the fairness of a district map, and experts disagree on exactly what constitutes partisan gerrymandering.
Both the petitioners and the respondents have recruited their own expert witnesses to testify about how district maps are drawn and the different kinds of measures that can be used to evaluate the relative fairness of the map.
Rakich admits different measures of gerrymandering can suggest varying degrees of fairness for New York’s maps, and both Donahue and Lerner agree that the egregiousness of the maps is at least up for debate.
How the judges handle the argument over political bias in the map drawing could set a powerful precedent for interpreting the never-before-considered statute. Courts in other states have better defined how they consider questions of partisan gerrymandering, and Rosborough believes this case could lead to New York courts forming their own tests.
Given that redistricting issues typically only come up every 10 years, any case law, even beyond the gerrymandering provision, could be long lasting. While New York courts have long shied away from exerting their say in redistricting cases, none of the sitting judges on the state’s highest court have considered the issue.
Time for Discovery
To overcome the burden of proving beyond a reasonable doubt that the Legislature’s map was gerrymandered, the petitioners asked Judge Patrick McAllister to allow them to conduct limited discovery and uncover communications between legislators.
The petitioners are hoping that the discovery process will turn up communications between lawmakers that demonstrate the partisan intent behind the Legislature’s redistricting map. An incriminating email or text message could provide more concrete evidence of gerrymandering than any Ivy League redistricting expert could supply.
Attorneys for the respondents strongly opposed the order, on the grounds that lawmakers are entitled to immunity from being compelled to hand over evidence under state law.
“They can’t have Your Honor order legislators to answer questions or produce documents about their core legislative functions,” attorney John Cuti told McAllister during the March 3 hearing. “You don’t have the power to do that under the Constitution.”
The judge granted the discovery order anyway. The order, which the respondents immediately appealed, gave the petitioners nine days to request communication materials between lawmakers, executive branch employees, the redistricting commission and other potential parties.
The relatively short amount of time allotted for discovery reflects the extremely compressed timeline of the case. If the case drags on for too long, it risks interfering with this year’s elections. Candidates have already started petitioning to get on the ballot in elections based on the new district boundaries.
Once McAllister rules, either side could appeal the initial court ruling. If that appeal is kicked up to the appeals court and then further appealed to the state’s highest court, the total process could take well over a year.
If the petitioners were to ultimately win the case, and the new district maps were to be thrown out, it could throw the entire election process into chaos. The petitioners have already asked McAllister to delay the petitioning deadline until the case is resolved.
So far, McAllister has resisted that. Instead, he has said that he wants the 2022 elections to proceed as normal. If the petitioners do win the case, he said, he could just order special elections to be held in 2023 — though it is not clear whether he actually has the power to order special elections.
Under the state Constitution, any challenges to redistricting must be decided within 60 days after they’re filed, giving McAllister an April 4 deadline to issue a ruling.
“We’re all under the gun,” McAllister said.
This story was reported and edited in collaboration with New York Focus.