The New York State Court of Appeals shocked New York Democrats last year when it ruled as unconstitutional the congressional and legislative redistricting plans adopted by the State Legislature. With supermajorities, Albany Democrats assumed their plans were immune from attack in the courts. Democratic governors, after all, had appointed the seven members of New York’s highest court and a significant majority of midlevel appellate judges throughout the state.
Past attempts to overturn gerrymanders orchestrated by both political parties had been unsuccessful in New York courts. But a 2014 constitutional amendment approved by voters changed things. It specifically barred crafting district lines intended “to discourage competition or for the purpose of favoring or disfavoring incumbents or other particular candidates or political parties.”
Despite this prohibition, Democratic leaders and Gov. Kathy Hochul executed an extreme partisan gerrymander designed to reduce New York’s GOP representation in the U.S. House from eight seats to four by drawing 22 districts highly likely to elect a Democrat.
GOP voters initiated a lawsuit, Harkenrider v. Hochul, alleging violations of the new state constitutional prohibition against partisan districting. The Court of Appeals agreed and also rejected the Democrats' argument that the legislature should be given another opportunity to redraw the districts, instead ordering that an outside expert be appointed to craft new lines.
The result was eight competitive congressional districts, arguably more than any other state. That plus a close gubernatorial election in 2022 elected 11 Republican members to Congress, a critical factor in the GOP takeover of the House.
Democrats are still smarting from the debacle, but their reaction has not been contrition. Instead, they’ve headed back to court.
Last summer, plaintiffs aligned with the Democratic Congressional Campaign Committee started a new lawsuit in Albany County Supreme Court arguing that the Harkenrider decision was only in effect for the 2022 election and that the legislature should have a new opportunity to redraw the congressional map. As expected, Democrats lost and are appealing before an Appellate Division panel which will hear the matter Thursday.
Many observers suspect Democrats timed that appeal to get the case in front of a newly reconstituted Court of Appeals later this summer.
They argue that Harkenrider only created new districts for the 2022 election and that the Independent Redistricting Commission (IRC) and the legislature should be directed to craft a new map. But the state constitution explicitly directs that the IRC only comes into being each decade after a new census is taken, meaning in this instance 2030. The only exception is when a court orders a modification of a districting plan if required to comply with the federal Voting Rights Act or to correct another violation of law.
Incredibly, Hochul and Attorney General Letitia James argue in an amicus brief that the Court of Appeals in Harkenrider violated the state constitution by imposing a judicially created map. Yet the state constitution clearly authorizes the courts to impose a new map when the legislative process has broken down.
Despite their rhetoric about defending democracy, state and national Democrats are brazenly attempting to rig New York’s congressional seats to their advantage. In addition, legislative leaders are now calling for an end to merit selection of Court of Appeals judges, sending a clear signal to the courts not to block their political agendas.
Hopefully, the courts will see through these blatantly partisan efforts to redo New York’s congressional districts and uphold a process that could be a model for the nation.
This guest essay reflects the views of John J. Faso, a Republican who served as a member of Congress and as minority leader of the state Assembly.
This guest essay reflects the views of John J. Faso, who served as a member of Congress and as minority leader of the state Assembly.