SCOTUS may steepen an uphill climb to fair maps

New York keeps muddling its way through a chaotic, flawed redistricting process.

Earlier this year, state lawmakers produced a partisan set of maps for state and federal legislative races. Then, state courts found those maps to be unconstitutionally gerrymandered. The congressional and State Senate plans were voided. Later, so was the Assembly map.

So far, the result has been fairer maps at the cost of a crazy primary-election calendar. State Senate and House primaries had to be delayed until Aug. 23 to leave time for the court rewrite. Assembly lines, also ruled illegal but not targeted in the original lawsuit, were used on June 28, the same day as the statewide primaries, but changes are pending for 2024.

Our every-10-year plunge into the granules of partisan mapmaking continued when state Supreme Court Justice Laurence Love, sitting in Manhattan, last month instructed lawyers who challenged the legislature’s Assembly map to advise him on how to redraw it.

Love must soon decide: Should the bipartisan commission that deadlocked before be assigned the task in time for the 2024 election? Should the legislature be ordered to do it over? Or must Love appoint a special master like the one who rewrote the House and Senate maps?

To bring this process under control for the future, our state constitution must clearly be amended to create a more nonpartisan and independent redistricting commission, one with a clear mission, clout, priorities and procedures. Truly independent commissions, rather than bipartisan task forces doomed to deadlock, have reportedly done the job professionally in California, Michigan and Arizona. Voters in every state deserve that much.

For the meantime, gerrymandering by both major parties has to be blocked case by case by state courts. That's what happened this year — not only in New York but elsewhere, including Pennsylvania, North Carolina and Maryland. Courts there all acted on the authority of state constitutions.

LOOMING FEDERAL CASE

Making the process fair is an uphill climb. Suddenly, a huge obstacle looms for those who want to see redistricting done properly. A federal case, to be heard next fall in the U.S. Supreme Court, threatens to undermine state-level checks and balances against congressional gerrymandering.

If this case, Moore v. Harper, plays out the way some power-driven Republicans would like, all state legislatures could see new untouchable powers over these maps handed to them by the high court. That might thrill Democrats in New York, as well as Republicans who dominate 30 other statehouses.

The pending case has set off alarms among voting rights defenders around the U.S. — and rightly so.

The Moore case comes from North Carolina. There, courts this year tossed out a congressional map crafted by a legislative majority of Republicans — just as New York courts did with the Democratic House map. The losers appealed in federal court, saying the state cannot regulate federal elections this way.

The U.S. Constitution’s election clause says that the “times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof … ”

That has long been interpreted to mean the state legislature sets the rules — subject to a state's constitution, as interpreted by the courts. That is, by the normal way.

STATE POWER PLAY

But now GOP lawyers claim that the state legislature alone can set redistricting, that state courts can't get involved in the process. It's a contrived theory of the election clause, and it defies common sense. 

Allison Riggs, co-executive director and chief counsel for voting rights at the Southern Coalition for Social Justice, which is representing Common Cause in the case, calls use of this independent legislature theory "a fringe, desperate, and anti-democratic attack by a gerrymandered legislature.”

If such a dubious election-clause doctrine had taken hold this year, New York's Democratic power brokers might have had cause to celebrate a dose of unaccountable clout. They could have kept in place a map designed to expand their 19-8 congressional delegation majority to a 22-4 edge, or even gerrymandered further.

The same twist came into play when Donald Trump's team looked to bring fake electors into the certification process on Jan. 6, 2021. J. Michael Luttig, a conservative former federal judge who recently testified about legal issues surrounding the attack on the Capitol, even characterized the so-called independent legislature theory as part of the "Repub­lican blue­print to steal the 2024 elec­tion." Luttig is suggesting here that the theory could be used to get state legislatures to nullify the votes of the people in a national election.

Still, Supreme Court Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh have previously voiced support for the idea that state courts cannot usurp legislatures on federal elections. How far might they go? The Arizona legislature failed when it tried to use the theory to stop independent redistricting. But that was in a 5-4 Supreme Court ruling a decade ago. The court's supercharged right wing isn't shy about blowing off precedents.

As with abortion and guns, New York lawmakers may need to find ways to work around the court's obstacles to craft good public policy. For now, they need to try to improve the redistricting plan — and avoid any cynical temptation to root for a gift of arbitrary power from the Supreme Court.