New York Gerrymandering Reform Comes Around To Bite Democrats

The decennial census came out in 2020, and now, as the 2022 elections approach, we are in redistricting season. The gerrymanderers are out in force, fighting for advantage in every Congressional and state legislative race nationwide.

For many decades, gerrymandering battles often got fought in the federal courts, where the side that had come out on the short end in the legislature would argue for redress under the Equal Protection Clause of the Fourteenth Amendment of the federal Constitution. In 2019 a 5-4 conservative majority of the Supreme Court substantially ended that game in a case called Rucho v. Common Cause. Rucho held that in most circumstances gerrymanders present political questions that are not justiciable by the federal courts. (The decision does carve out at least one exception, for racially-motivated gerrymanders. That seemingly small exception might be applied by creative lawyers to cry foul over almost any redistricting map, so don’t count on federal litigation on this subject to go away.)

The withdrawal of the federal courts from the field now leaves most of the battle in the states. As the Supreme Court majority notes in the last section of its Rucho opinion, many states in recent years have adopted reforms including independent redistricting commissions and constitutional amendments prohibiting redistricting for partisan advantage. People striving for even slight political advantage can always find a way to fight on.

The gerrymandering game has been playing out in a very humorous way here in New York. The Democrats have been the dominant political party in New York for my entire lifetime, but for decades they were frustrated by an inability to take control of the State Senate and thereby gain full control of the legislative process, including the every-tenth-year redistricting. They thought they had the answer to their problems through the creation of one of these independent redistricting commissions. It turns out that that has come around to bite them in the current cycle.

Here’s a brief history of gerrymandering in New York. During the years shortly after World War II, New York was far closer to competitive between the two political parties than it is today. For some reason, during that era the Republicans came into control of the State Senate, while the Democrats controlled the State Assembly. And with help from periodic gerrymandering, this situation then continued for decades. When redistricting time came around every ten years, the two parties would reach an agreement that gerrymandered the legislative districts such that the Republicans would maximize their chances in the Senate, and the Democrats in the Assembly; and the Congressional maps would be a relatively balanced bi-partisan deal. According to this New York Times piece from 2018, in the entire period from World War II until that year, the Democrats had controlled the State Senate for less than three years.

By 2012, with the state now heavily Democratic, and with a huge advantage in voter registration, the Democrats were becoming increasingly frustrated at not being able to take control of the State Senate. In the 2012 redistricting the Democrats drew a line and refused to do the usual deal to gerrymander the State Senate to favor the Republicans. An impasse ensued, followed by federal litigation. As a result, the 2012 maps ended up getting effectively drawn by the federal courts.

In 2012 then-Governor (Andrew) Cuomo and the Democrats in the legislature thought they saw the way out of their difficulties through setting up one of these independent redistricting commissions. They had the idea that with independently drawn districts, they would be likely to get and keep control of the state legislature for the long term — and they were probably right about that. But there are some challenges in structuring an independent commission for redistricting. To keep the legislature from meddling and neutering the prospective commission, the commission and its operating procedures would have to be in the State Constitution. Amending the State Constitution in New York requires having the proposed amendment passed by two consecutive legislatures (with an election in between), and then having the amendment passed as a referendum by the voters. That process occurred during the period 2012-14. In November 2014 the voters approved the amendment.

Thus by the end of 2014 we had substantially new Article III, Sections 4 and 5 of the State Constitution, providing for elaborate procedures by which in the next redistricting cycle the lines would be drawn by this Independent Redistricting Commission (IRC). Some of the more important examples of the procedures include: First the IRC would create a map. Then the map would go to the legislature for an up or down vote. If not approved, it would be back to the IRC to create another map. Then back to the legislature for another vote. If again not approved, the legislature could then get involved, but only starting with the IRC’s map, and with limits on how much it could change any district. To prevent a legislature in the hands of one party from blocking the Commission’s maps and imposing its own, there were supermajority vote requirements if the two houses of the legislature were controlled by the same political party. And then there is this provision:

Districts shall not be drawn to discourage competition or for the purpose of favoring or disfavoring incumbents or other particular candidates or political parties.

As luck would have it, in 2018 — not too long after enactment of the constitutional amendment creating the IRC, and before the IRC had ever gotten involved in a redistricting — the Democrats came into control of the State Senate by a substantial majority. The Democrats immediately realized that they didn’t need the IRC any more, but the amendment was now in the Constitution. They immediately got to work to create another constitutional amendment to substantially neuter the IRC (mainly by eliminating the super-majority requirements when the legislature was in one-party control) — but the voters rejected that amendment in 2021.

And now here we are in 2022. The entire redistricting process has been a mess.

The IRC — evenly divided between Democrats and Republicans — has been unable to come up with any agreed-upon maps. Instead of agreed maps, the IRC first submitted two sets of maps, one from the Democrats and the other from the Republicans. The legislature rejected both sets of maps. Then the IRC announced that it was deadlocked and would not submit another set of maps by its deadline. Then the Democrats in the legislature just scrapped the whole remaining set of constitutionally-prescribed procecures and enacted their own maps, completely bypassing the IRC. And then, everybody who looked at the legislature’s maps could see immediately that they were drawn in an extreme fashion to gain partisan advantage for the Democrats. As the most often noted example, the district of the only Congressional Republican from New York City (who represents Staten Island and a part of Brooklyn) was redrawn to add to the district one of the most heavily-progressive neighborhoods in the country, Park Slope, and thereby almost certainly assure her defeat.

The litigation started immediately, and has proceeded with remarkable expedition. After starting in the State Supreme Court in early February, it has moved through a trial, an initial appeal to the Appellate Division, and a final appeal to the Court of Appeals. The case was argued in the Court of Appeals on April 26, and the court then issued its decision on April 27. I have never heard of that kind of speed from this court before. (It clearly means that the decision was written before the argument took place.)

It is a 4-3 decision. But what is most remarkable is that all seven of the judges of the Court of Appeals were appointed by Democrats (six by Andrew Cuomo and the seventh by brand-new Governor Hochul), yet at least four of them could not stomach the blatant disregard of a voter-passed constitutional amendment that had taken place here. The respondent legislative Democrats didn’t even attempt to argue that all the constitutional procedures had been followed.

And it’s not just the procedures. The constitutional amendment specifically prohibited redistricting maps that “favor or disfavor incumbents or other particular candidates or political parties.” That line now in the State Constitution would appear to specifically make a justiciable question out of what the Supreme Court has said is not a justiciable question under the federal Constitution (which does not contain such a provision). The dissents in the Court of Appeals tried to argue that in ruling the legislature’s map too partisan the court was merely issuing an advisory opinion. But the problem they have is that, if the court can’t rule on this, then the constitutional provision has no meaning.

Final result: it looks like the state Supreme Court, with the help of a special master, is going to do the redistricting in New York this year. The Democrats had a very strong hand, but they over-played it.