Judge Throws Out NY State’s Democrat Gerrymandered Congressional Map “Unconstitutionally Drawn With Political Bias” (Update: Stay Issued)
Sets April 11 as deadline to submit a new map, or the Judge will appoint an expert to do so: “The court finds by clear evidence and beyond a reasonable doubt that the congressional map was unconstitutionally drawn with political bias….”
After some convoluted procedural maneuvers enabled by having leglislative super-majorities, NY State Democrats passed one of the most absurdly gerrymandered redistricting maps which redistricted most congressional Republicans out of existence. It was a huge win for Democrats in their hope of retaining the U.S. House of Representatives, giving Democrats several more seats.
The NY Times noted that Democrats bragged they had performed a “Master Class” in gerrymandering:
Democratic lawmakers in New York adopted on Wednesday an aggressive reconfiguration of the state’s congressional districts that positions the party to flip three seats in the House this year, a greater shift than projected in any other state.
The new lines would shape races in New York for a decade to come, making Democrats the favorites in redrawn districts currently held by Republicans on Long Island, Staten Island and in Central New York. They would also help tighten the party’s hold on swing seats ahead of what is expected to be a strong Republican election cycle, all while eliminating a fourth Republican seat upstate altogether.
Legal and political experts immediately criticized the new district contours as a blatant and hypocritical partisan gerrymander. And Republicans, who were powerless to stop it legislatively in Albany, threatened to challenge the map in court under new anti-gerrymandering provisions in New York’s Constitution, though it was unclear if they could prove partisan intent.
Overall, the new map was expected to favor Democratic candidates in 22 of New York’s 26 congressional districts. Democrats currently control 19 seats in the state, compared with eight held by Republicans. New York is slated to lose one seat overall this year because of national population changes in the 2020 census.
“It’s a master class in how to draw an effective gerrymander,” said Michael Li, senior counsel for the Democracy Program at the Brennan Center for Justice, which has also sounded alarms about attempts by Republicans to gerrymander and pass other restrictive voting laws.
A lawsuit was filed challenging the new map, and on March 31, 2022, Judge Patrick F. McAllister of the NY Supreme Court (the trial level court in NY) ruled that the map violated state law. The Judge found that the new map was void ab initio because the proper procedure was not followed, and also because the maps reflected political bias, contrary to state law. The Judge ordered new maps to be submitted by April 11, and if that did not happen, he would appoint an expert to do so.
Here are excerpts from the Decision and Order (subheadings and emphasis added):
State Law Does Not Permit Partisan Gerrymandering
The Petitioners, through their attorneys, are seeking to set aside the newly enacted congressional districts and senate districts. The Petitioners allege that the Respondents did not have the authority under the constitution to create the new congressional and senate districts as they did, and further that the Respondents engaged in prohibited gerrymandering when creating the districts. The Respondents oppose the Petitioners ‘ application. The court heard oral argument on March 3, 2022 . The court reserved decision pending further development of the record. The court heard testimony of several experts and final arguments were heard on March 31, 2022.
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The 2014 amendment to the New York Constitution includes both a provision to prohibit discrimination against racial or language minority voting groups and a prohibition · against creating maps with partisan bias. The prohibition against discriminating against minority voting groups at the least encapsulated the requirements of the Federal Voting Rights Act, and according to many experts expanded their protection. That new provision is not currently being challenged . Therefore, the court will focus on the prohibition against partisan bias and the process by which redistricting was to take place.
* * *
Discrimination comes in many forms whether it be against ones race, sex, age, religion, political party or something else. The New York Constitution specifically says, “When drawing district lines, the commission shall consider whether such lines would result in the denial or abridgement of racial or language minority voting rights, and districts shall not be drawn to have the purpose of, nor shall they result in, the denial or abridgment of such rights. Districts shall be drawn so that, based on the totality of the circumstances, racial or minority language groups do not have less opportunity to participate in the political process than other members of the electorate and to elect representatives of their choice.” Art. III §4(c)(l)….
Under the 2014 amendment the districts shall not be drawn to discourage competition or for the purpose of favoring or disfavoring incumbents or other particular candidates or political parties. Under constitutional criteria the maps must be compact, contiguous, of equal populations, avoid abridgment of racial or language minority voting rights, maintain cores, and not cross the boundary lines of pre-existing subdivisions such as counties, cities, towns and communities of interest and there was to be no partisan gerrymandering. “The antigerrymander provision of the State Constitution is found in article III. Section 4 requires that Senate districts ‘be in as compact form as practicable’ and ‘consist of contiguous territory’; and section 5 provides that Assembly districts shall be formed from ‘convenient and contiguous territory in as compact form as practicable. As we recognized in Matter of Orans, (15 NY2d 339, 351, supra), these constitutional requirements remain binding although they must be harmonized with the first principle of substantial equality of population among districts.” Schneider v. Rockefeller, 31 NY2d 420 (1972).
2021 Amendment Giving Legislature Power To Propose Maps Was Unconstitutional
This court finds that the November, 2021 legislation which purported to authorize the legislature to act in the event the IRC failed to act was not a mere enactment of legislation to help clarify or implement the Constitution, but in fact substantially altered the Constitution. Alteration of the Constitution can only be done by constitutional amendment and as recently as November, 2021 the people rejected the constitutional amendment that would have granted the legislature such authority. Therefore, this court finds the recently enacted Congressional and Senate maps are unconstitutional. Further, the enacted maps are void ab initio. Under the currently constructed Constitution when the IRC failed to act and submit a second set of maps there is nothing the Legislature has the power to do. Therefore, the court will need to step in. The court would note that not only are the Congressional District Maps and Senate District Maps void but the Assembly District Maps are void ab initio as well. The same faulty process was used for all three maps. Therefore new maps will need to be prepared for the Assembly Districts as well.
Map Also Reflected Political Bias
Although the court has already stricken the enacted redistricting maps as unconstitutional the court will discuss the Petitioners’ further argument that the congressional and senate redistricting maps were the result of partisan bias. The standard of proof is beyond a reasonable doubt….
What is clear from the testimony of virtually every expert (Trende, Lavigna, Barber, and , Katz) is that at least in the congressional redistricting maps the drawers packed Republicans into four districts thus cracking the Republican voters in neighboring districts and virtually guaranteeing Democrats winning 22 seats. In 5,000, 10,000 or 50,000 unbiased computer drawn maps there were several, and perhaps as many as 10 competitive districts. The enacted congressional map shows virtually zero competitive districts. Trende concludes and the court agrees that this shows political bias….
The court finds by clear evidence and beyond a reasonable doubt that the congressional map was unconstitutionally drawn with political bias in violation of Art. III §4(c)(5). One does not reach the worst of 2,500, 5,000, 10,000 or 50,000 maps by chance. Therefore, the court agrees with the Petitioners that the congressional map was unconstitutionally drawn with political bias in violation of Art. III §4(c)(5) of the New York Constitution.
April 11 Deadline
Having declared the recently enacted 2022 maps unconstitutional where do we go from here. It was clear from the testimony that not only is the 2012 congressional map not useable because New York State now only has 26 instead of 27 Congressional districts, but the 2012 senate map is also not useable because as a result of population shifts that map is now constitutionally malapportioned. Therefore, that leaves no maps. At this point in time, the candidates have been collecting signatures for over a month to get on the ballot for districts that no longer exist. The end of the signature gathering process will occur within a few days. Yet Petitioners urge the court to have the parties quickly submit new maps and create new election time-lines so that the election can proceed on properly drawn redistricting maps that are free of partisan bias. The Respondents contend it is too late in the election cycle to try to draft new maps and then hold elections based on the new maps….
The court is mindful that in the Maryland case decided on March 25, 2022 that court threw out the recently enacted gerrymandered maps and ordered new maps to be drawn. This court finds that although it will be very difficult this court must require new maps to be drawn and the current maps are void and unusable. The court will leave it to the legislature and governor to develop new time frames for gathering signatures, how many signatures will be, required to be on the ballot, whether signatures already gathered can be counted toward meeting the quota to appear of the ballot, etc….
Therefore, the Constitution requires the Legislature to be given another chance to pass maps that do not violate the Constitution. Part of the problem is these maps were void ab initio for failure to follow the constitutional process of having bipartisan maps presented by the IRC. The second problem was the Congressional map that was presented was determined to be gerrymandered. The Legislature could correct the gerrymander issue, but they can not correct the constructional failure to have IRC present bipartisan maps for Congressional, State Senate, and State Assembly Districts. Therefore, the court will require any revised maps generated by the Legislature to receive bipartisan support among both Democrats and Republicans in both the senate and the assembly. The maps do not have to be unanimously approved, but they must enjoy a reasonable amount of bipartisan support to insure the constitutional process is protected. This they will need to do quickly. In Maryland the court gave their legislature 5 days in which to submit appropriate new maps for the court to review. The court will give the legislature until April 11, 2022 (which is slightly more time than they took to prepare the enacted maps) to enact new bipartisan supported proposed maps that meet the constitutional requirements. This court will review those maps. If the maps do not receive bipartisan support or if no revised maps are submitted, then I will retain an expert at the States expense to draw new maps. Not only would the process be expensive it is possible that New York would not have a Congressional map in place that meets the Constitutional requirements in time for the primaries even with moving the primary date back to August 23, 2022.
The decision is being appealed, but contrary to some reports, a stay of the decision was an automatic procedural imposition, not the result of a higher court decision.
Republicans who just won the lower court ruling: Not so fast.
In a letter the NY BOE today, GOP lawyers contend the ruling striking down maps has not, at this point, been stayed. They ask the elections board to issue a corrective tweet pic.twitter.com/cZmbylcGaq
— Nicholas Fandos (@npfandos) April 1, 2022
On April 4, an appellate court judge issued a temporary stay of the lower court ruling until Thursday, April 6, at which time an appellate panel will consider the case:
New York’s recently redrawn congressional and state legislative districts will remain in place for the time being after Democrats won a temporary reprieve.
State Appellate Division Associate Justice Stephen Lindley of Rochester issued an interim stay Monday allowing the Democrat-drawn maps to remain in place for at least much of this week, a key period in which candidates running for office are required to turn in petition signatures they’ve gathered from the district they’re running in to get on the June 28th primary ballot.
The Appellate Division, Fourth Department, will hold a hearing Thursday on whether the stay should remain in effect while multiple appeals are heard, with a decision expected by the end of the day. From there, Lindley expects the court to decide on the full appeals on a fast-tracked timeframe, he wrote in a message to attorneys on the case.
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