Redistricting now rests in judges' hands

The public storm over whether new district lines will take effect for this year's Nassau legislative election has reached that brief, frantic stage where guesswork and inference are all the audience has to work with.

For the moment, none of the lawyers in the fray dare to publicly predict an outcome.

At any point, starting Thursday, the seven-member Court of Appeals, the highest in the state, will rule on the legality of a new district map enacted by the county legislature's GOP majority, purportedly based on the latest federal census numbers.

No courtroom observer can ever assume why a judge asks certain questions -- or whether the advocates' reply reinforces or bends that judge's opinion.

But the trend of questions during morning-long oral arguments Wednesday highlighted the judges' concerns over what Nassau's charter means and how it may fit against state and federal election law. And a cluster of election lawyers from both major parties came to watch, since this is an early case in the 10-year redistricting process statewide.

The Democrats' attorney, Stephen Schlesinger, argued -- in his third courtroom this season -- that three of the Nassau charter's sections, drafted in the 1990s, should be read together to mean that new lines don't take effect until the 2013 races.

Republican attorney Peter Bee and County Attorney John Ciampoli defended once again the Nassau majority's decision to push the new lines into expedient effect right away.

Appointees of Republican ex-Gov. George Pataki outnumber appointees of recent Democratic governors 4-3 on the high court.

If any consensus was apparent from the judges' queries, it had to do with what two of them called the "disconnect" of the Nassau charter as written.

Chief Judge Jonathan Lippman, a Democratic appointee, expressed the view that "regardless of who's right," drafters of the charter "didn't do such a good job of harmonizing" the sections prescribing redistricting.

A few questions came from the bench concerning how the charter came to be drafted this way.

Answers involve compromises made in the transition from the county's old board of supervisors to a new 19-member legislative body back in the mid-1990s.

Judge Victoria Graffeo, a Republican, remarked to Peter Bee, lawyer for the Nassau GOP: "They [Democrats] have one plain-language interpretation [of the charter], and you have another."

Judge Robert Smith, also a Pataki appointee, asked if those who enacted the charter realized that its redistricting provisions "didn't seem exactly to mesh."

"You've got this system that seems to clash with itself," said Justice Eugene Pigott, a Pataki appointee.

With the timing of the redistricting a crucial part of the court case, Pigott noted that lawmakers from his home county of Erie acted on a new map for this year's legislative elections.

That drama ended up with a federal judge earlier this month imposing a plan of his own.

And because it is too late -- as it is in Nassau -- for the state's petition process to nominate candidates for Erie's new districts, U.S. District Judge William M. Skretny turned to a process that allows party county committees to nominate candidates.

From Wednesday's appeals bench, Smith provided the most philosophical narratives of the day.

At one point Smith told Schlesinger: "One thing the court has never succeeded in doing is keeping one political party from taking advantage of the other. . . . If you're opposing the other party's candidacy for sainthood here, you're going to win."

The question, Smith added, is whether the Nassau Republicans can do what they did under the law.