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There's a Lot of Finger-Pointing Around New York Redistricting; What Actually Happened?

Governor Cuomo and legislative leaders, 2013 (photo: Governor's Office)

Democrats in New York are stinging from a rough 2022 election showing in which they lost several congressional seats to Republicans, potentially costing the party control of the U.S. House of Representatives. As they assign blame, many have pointed to a tumultuous redistricting precipitated by a broken state process, state legislative leaders who overreached in trying to draw overly partisan lines, a Court of Appeals that ruled in favor of Republicans, and former Democratic Governor Andrew Cuomo, whose political machinations laid the foundations for that chaos to unfold.

In the end, New York’s 26 new congressional districts were drawn by a court-appointed “special master,” who crafted highly-competitive lines for this year’s elections and the coming decade until the next U.S. Census and redistricting process. While Democrats were able to exceed expectations in many places across the country, they under-performed in New York, leading some to call recriminations of the state’s redistricting process a distraction from the central point of campaign failures of Democrats and successes of Republicans in New York.

But Democrats here and nationally had been counting on favorable New York congressional lines to counteract Republican gerrymandering elsewhere. And in the wake of the party’s losses across a number of New York districts and likely in the final overall House tally, many fingers are being pointed at the state’s redistricting process. So what actually happened?

The 2020 Census and a 2012 Compromise
The state’s redistricting began in earnest with the 2020 Census, when an anemic state outreach operation hobbled by Cuomo meant that New York lost one congressional seat, falling just 89 residents short (The U.S. Census did find later, however, that New York was among eight states where the population may have been overcounted in the Census estimate.)

New York’s House representation would fall from 27 to 26 seats, mostly because of a loss of population upstate, and an even more drastic redrawing of the districts would be necessary. 

New York was also set to undertake a new, untested redistricting process that ultimately resulted in chaos.

In 2012, Governor Cuomo, Democrats who controlled the State Assembly, and Republicans who controlled the State Senate reached an agreement to ostensibly reform redistricting to make it bipartisan and “independent,” putting it in the hands of a ten-member Independent Redistricting Commission. The commission would be tasked with taking into account population trends and various federal and state requirements, and drawing new district maps for the U.S. House of Representatives, State Senate, and State Assembly.

If the State Legislature rejected two consecutive proposals from the commission, it would then take over the drawing of new lines itself, a backdrop that was criticized at the time of the deal. Still, some saw promise in the new layers of independence and transparency, as well as attached anti-gerrymandering language.

The compromise was passed by two consecutive classes of the Legislature and put before voters. In a 2014 ballot referendum, New Yorkers approved by a 57.7-42.3% margin the state constitution amendment to adopt the new process and related requirements.

But even if elements of the new system signified progress, many critics presciently said the commission was designed to fail. Composed of four members appointed by Democratic legislative leaders and four by Republican leaders, plus two independent members chosen by a majority of the other eight, it was apt to deadlock on its proposed new district lines instead of finding consensus. This was especially likely if there were new political incentives at play, like one party controlling both houses of the Legislature. And that is exactly what happened.

Through wins in the 2018 and 2020 state legislative elections, Democrats took supermajorities in both houses of the Legislature, meaning less incentive for compromise from representatives of either party — Democrats with an eye on letting the Legislature craft new state legislative and congressional district maps and Republicans with an eye toward getting the map-drawing process decided by the courts.

That newfound power in hand, Democrats sought to alter the redistricting process ahead of its first implementation. They sought to pass an amendment to the state constitution last year that would have allowed the IRC to appoint two co-executive directors by simple majority vote, frozen the number of state Senators at 63, require that State Assembly and Senate district lines be based on the total state population, count incarcerated people at their place of last residence, change the voting thresholds for approving redistricting maps, and, crucially, let the Legislature take over the process of adopting new maps if the IRC fails to vote on any plans by the set deadline.

But the referendum to do so, which they placed on the November 2021 ballot, was rejected by voters, with 54% voting against and 45% voting in favor. In the low turnout election highlighted by local races, conservatives mounted a major campaign to defeat that and other ballot referendums that would expand voting access, while Democrats did nothing to promote them and secure voter approval.

The Legislature then passed and Governor Hochul signed a law that would accomplish the same goals as the proposed ballot question by amending the 2012 Redistricting Reform Act. But in a court ruling on redistricting, Judge Partrick McAllister found the law “substantially altered the constitution,” a step that could only be taken through a constitutional amendment and not through legislation, striking it down.

The Independent Redistricting Commission Gets to Work, Chaos Ensues
Seven years and a political lifetime after the redistricting amendment was approved by voters, the Independent Redistricting Commission began its work in mid-2021.

After six months of meetings and public hearings, the commission broke into two factions along partisan lines, and each proposed separate plans in January of this year, voting 5-5 in both cases. The plans then headed to the State Legislature, where any successful proposal would have required a two-thirds vote in both chambers to pass. Both proposals failed. 

The onus returned to the commission to create new maps, but the commission again deadlocked and, crucially, did so without passing any map proposals at all. After that, the Legislature took over the process of redrawing district lines. As was later decided in court, that did not follow the prescribed constitutional process, but the Legislature did not compel the commission to pass something for it to consider.

The Legislative Task Force on Demographic Research and Reapportionment (LATFOR), ready for the possibility, quickly drew new maps. Under the maps adopted by the Democrat-dominated Legislature and signed into law by Democratic Governor Kathy Hochul on February 3, the party would have held an advantage in 22 out of New York’s 26 congressional districts, allowing them to potentially grow their conference by three seats.

The new New York map would have the potential to counteract Republican gerrymandering elsewhere in the country in the national fight for control of the House. But the design also made the map ripe for a legal challenge, especially given the anti-gerrymandering language in the state constitution thanks to the 2014 amendment, which explicitly stated that “districts shall not be drawn to discourage competition or for the purpose of favoring or disfavoring incumbents or other particular candidates or political parties.”

The new maps were quickly challenged in court, with Republican opponents arguing in a lawsuit filed strategically in Republican-heavy Steuben County in March that the Legislature did not have the authority to draw new maps for the Legislature or Congress because the commission had never passed a second map to be disapproved in the first place, and also that the congressional map was an unconstitutional partisan gerrymander.

Steuben County Supreme Court Justice Patrick McAllister ruled in favor of the Republican lawsuit on April 1 and struck down the Democrat-created maps. 

McAllister even said in his ruling that the Independent Redistricting Commission could have been legally compelled to issue a second set of maps.

“There is nothing in the constitution that permits the IRC to just throw up their collective hands…Here the IRC stopped working well before its deadline,” he wrote in his order. “What someone should have done was bring an action to compel the members of the IRC to continue their work or for the political sides of the legislatures that appointed 8 of the 10 members of the IRC to remove and replace any IRC member that did not embrace his/her constitutional role.” 

The judge also gave the Legislature an opportunity to submit revised maps that would not require unanimous support but “must enjoy a reasonable amount of bipartisan support to insure the constitutional process is protected.” Democrats chose not to avail themselves of that opportunity, however, banking on their appeal to a more Democrat-friendly court.

Democrats appealed the decision but the state’s highest court, the New York State Court of Appeals, ruled against them on April 27 and instead appointed a special master to draw more neutral maps that would encourage competitive elections.

That process was overseen by Judge McAllister, who also delayed the primary election for Congress and State Senate by two months, moving it from June to August to allow time for the maps to be drawn and candidates to campaign in the new districts.

The Democratic Congressional Campaign Committee then attempted to back a challenge against that delay in federal court but was denied and Judge Gary Sharpe of the Northern District of New York ruled on May 10 that those primaries would indeed be pushed from June 28 to August 23. (The statewide and Assembly primaries remained in June.)

On May 16, Jonathan Cervas, the court-appointed special master, proposed new district lines that threw the Democratic Party into turmoil. According to the court filing, it created eight competitive congressional districts (instead of three under the legislative proposal, and in reality there were more this year) and, in some cases, it led to incumbent Democrats being pitted against each other. “Both the congressional and state senate maps have a substantial number of competitive seats (far more than in the unconstitutional maps) and are going

to be responsive to the public will,” Cervas wrote in his report on the final maps. 

On May 20, Cervas submitted new maps with minor alterations that were approved by Judge McAllister. The final maps, he wrote, “remain almost perfectly neutral, meaning the maps do not favor or disfavor any political party.”

The Blame Game
Democrats have laid part of the blame on the Court of Appeals, with a four-member majority of conservative-leaning justices nominated by Cuomo, including Chief Judge Janet DiFiore (who recently retired from the court).

“I think it's fair to say that there could be disagreement about whether the lines in particular for a particular house of the State Legislature or Congress may have had some pieces of it that needed correction,” said State Senator Michael Gianaris, who is co-chair of LATFOR and chair of the Democrats’ State Senate campaign committee, in an interview on Gotham Gazette’s Max Politics podcast in July. “But to say that the Legislature had no power to draw the lines at all, which is what the Court of Appeals ultimately did, is completely out of left field and not in keeping with the very explicit direction of the state constitution.”

“If the decision was simply, ‘the lines for Congress were drawn impermissibly, in an impermissibly partisan fashion,’ the remedy, according to the constitution, is send it back to the Legislature with direction to do it differently,” Gianaris added. “That didn't get to happen because the court just took it out of the Legislature's hands entirely in an extra-constitutional manner.” 

Experts agree that the redistricting process is inherently flawed, but they don’t agree that the new maps are the reason behind Democratic losses. 

“The real issue is that Democrats lost seats in New York that Joe Biden won by 10 or 15 points,” said Michael Li, senior counsel for the Democracy Program at the Brennan Center for Justice, in a phone interview. Indeed, Biden performed well on Long Island where Democrats saw crucial House defeats on Tuesday. He won Nassau County in 2020 by nearly 10 points while losing Suffolk County by just 232 votes to Donald Trump. “If you look around the country, almost nowhere else do they lose districts that Joe Biden won by 10 or 15 points, which suggests that Democrats underperformed in New York compared to Democrats elsewhere,” Li said. 

“As people go through the post-mortem, trying to figure out whether that's because of candidates or campaigns or some of the political dynamics around crime or other issues, but I suspect that all those are ultimately more to blame for Democrats’ failure than redrawing the maps,” he added. 

Li has also insisted that Democrats failed to take the opportunity to present remedial maps when their proposal was struck down by Judge McAllister, which could have helped them achieve their goals. And when they proposed maps to the special master, they again hewed close to their original proposal, which was bound to fail.

It's unclear whether Democrats would have prevailed if they had gotten their way with redistricting, he noted. For instance, the 4th congressional district, covering southern Nassau County, was marginally more Democratic under the special master’s map than under the Democrat proposed one, but nonetheless went Republican in the general. 

“I think if Democrats are looking for a scapegoat, they need to look inside,” he said. 

Jeffrey Wice, senior fellow at the New York Census and Redistricting Institute at New York Law School, had his own criticisms for the redistricting process but did not attribute Tuesday’s election results to it.

“The redistricting process was designed to fail from the beginning,” he said in a phone interview. “We were dealing with a commission designed by Andrew Cuomo and the Senate Republicans…who put into the plan, into the redistricting process, so many bells and whistles and twists and turns to make a positive outcome impossible ranging from having no tie-breaker, creating ridiculous rules depending on who controlled power in the Assembly and the Senate, to having separate staff directors and operations.”

Wice did say that the “four conservative judges” who make up the majority on the Court of Appeals “misunderstood the law” by denying the Legislature the ability to draw maps after the redistricting commission failed and that Democrats demonstrated in their arguments before the court that their maps were not overly partisan. 

“I think the criticisms of the redistricting process are slightly overblown in terms of what the Democrats did, but the process itself was an inevitable failure designed to end up where it did,” he said. “And unless it’s changed, we can see the same thing happen over again.”

Among some Democrats as well, blaming redistricting seems to be far too simplistic. Harry Giannoulis, president of The Parkside Group, one of the main consultants for the State Senate Democrats, has argued against the rationale that Democrats overreached in the redistricting process. “The claim that NY Dems should've just gerrymandered a little less is bizarre,” he tweeted on November 13. “Assembly made its own lines & their majority decreased. Senate didn't & may stay the same. The Court pointed to the redistricting process not being followed as the main cause for overturning the lines.”

“The Republican Senate passed the bill creating that poison pill in anticipation of blowing up the process. Which they did by walking out,” he continued, referring to the Republican appointees on the redistricting commission. “Also, there is no evidence that in the original lines, the Dems would have picked up 5 Congressional seats. The whole conversation is absurd,” he added of all the fingers being pointed at New York over the national House picture.. 

Cuomo spokesperson Rich Azzopardi, similarly, defended how the new redistricting process was approved by legislative leaders and voters. “The people of the state of New York overwhelmingly approved a constitutional amendment creating this process,” Azzopardi told Vanity Fair. “If they want to blame somebody for this chaotic mess, there are plenty of mirrors in this town.”

There may still be further developments in the congressional redistricting issue. A group of voters filed a suit asking a state judge to order the commission to redraw congressional lines, submitting a second round of maps to the Legislature. The suit was dismissed in September but is being appealed.

by Samar Khurshid, senior reporter, Gotham Gazette

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