Image Credit: Darren McGee- Office of Governor Kathy Hochul.
By Jeffrey M. Wice and Piper Benedict
New York State’s redistricting process following the 2020 Census failed to live up to the reforms envisioned by voters who endorsed the 2014 constitutional changes. Instead, the redistricting process proved unworkable, missed constitutional deadlines, and resulted in judicially-imposed districts. The time to fix the state’s redistricting process starts now, before the 2030 redistricting cycle gets underway.
Redistricting is a major building block of American democracy. It determines the boundaries of the districts for the people we elect to represent us in Washington, D.C., Albany, and localities across the state. Following each decennial census, every state’s congressional, state legislative, and local legislative bodies must have their district lines redrawn to reflect population shifts.
In 2014, New York voters approved an amendment to the state constitution to create a new process for congressional and state legislative redistricting. The purpose of the reform was to eliminate the Legislature’s exclusive control over redistricting that had resulted in politically motivated and unfairly gerrymandered districts. The 2014 constitutional amendment created a new bipartisan advisory commission, the Independent Redistricting Commission (“Commission”). The amendment empowered the Commission to hold public hearings and draw maps of new election district lines and to submit those maps for either approval or redrawing by the Legislature.
The proponents of the 2014 constitutional amendment argued that the new redistricting process would make redistricting transparent, encourage public input, and discourage political and racial gerrymandering. The constitutional amendment, however, included substantive and procedural inadequacies and compromises that led to the drawn-out, litigation-filled cacophony of the past two-and-a-half years.
The now four-year record of confusion and litigation makes clear that the process created by the 2014 amendment was deeply flawed and is in urgent need of substantive reforms. The next redistricting cycle will follow the 2030 Census and is now just a short seven years away. Without reform, New York will likely end up with the same sort of chaotic and unsatisfactory redistricting process it experienced following the 2020 census.
New York now has final maps in place for congressional and State Assembly districts drawn by the Commission and tweaked by the Legislature. The State Senate map was drawn by the state court. These maps will remain in place through the 2030 election cycle. Now that the post-2020 cycle dust has settled, we should consider what happened, what went wrong, what finally worked, and what to do before 2030.
The 2014 Constitutional Amendment
The adoption by voters of the 2014 constitutional amendment culminated a decade of reform efforts. The amendment, to promote impartiality, created a new ten-member Independent Redistricting Commission to prepare district lines and included strict eligibility criteria for the members of the Commission. Persons appointed to the Commission must not have, during the prior three-year period, held state legislative, congressional, or statewide elected office. The amendment provided that two commissioners must be appointed by each of the four top partisan legislative leaders from the Senate and Assembly (for a total of eight). The final two appointees, “shall not have been enrolled in the preceding five years in either of the two [largest] political parties” and are to be appointed by the first eight commissioners. This partisan selection process had the effect in 2021 of creating a partisan Commission consisting of five members who voted together on the Democratic side and five members who voted together on the Republican side, with no tiebreaker.
The 2014 amendment specified that the number of votes required for the Commission to adopt a redistricting plan depended upon which parties controlled the New York Senate and Assembly. This voting scheme was designed to ensure the minority party had a say in the final maps. If the same party controlled both houses (as is currently the case with two Democratic supermajorities), the plan must be approved by at least seven Commission members, including at least one member appointed by each of the legislative leaders. If different parties control each house, the plan must be approved by “at least seven members including at least one member appointed by the speaker of the assembly and one member appointed by the temporary president of the senate.” In practice, the voting scheme gave the minority party a veto over any plan recommended by the Commission.
If the Commission cannot reach seven votes on any plan, it is still able to submit to the Legislature the plan that received the highest number of votes. If more than one plan receives the same number of votes, “the commission shall submit all plans that obtained such number of votes.”
The 2014 amendment lacked clear guidance for drawing district lines. It set out a list of unprioritized and unranked criteria for drawing district lines that the Commission must follow. The absence of a ranking or prioritization was a major omission and left the Commission and ultimately the Legislature and courts without constitutional guidance or limitations for district lines.
The 2014 amendment contemplated that the Commission would get two separate opportunities to submit proposed sets of maps to the State Legislature for consideration. If the Legislature rejected the first submission, the Commission would regroup and submit a second set of maps.
The 2014 amendment anticipated litigation concerning district lines and required a decision by the trial court within 60 days. In fact, the trial court and appellate reviews were not speedy. They missed the 60-day deadline by large margins and helped contribute to the confusion.
The Legislature added a substantive provision to the constitutional amendment stating that any changes the Legislature made to a Commission map could not impact “more than two percent of the population of any district contained in such plan.” This limitation too proved unenforceable.
2020 Redistricting Cycle
The Independent Redistricting Commission had its first opportunity to carry out the new process in 2021, following the 2020 Census. The redistricting process got off to a bad start, however, by the delay in the census data due to the pandemic. The Commission’s efforts were also delayed by Governor Andrew Cuomo’s inappropriate attempt to control the Commission’s budget and staffing. Governor Cuomo attempted to staff the Commission with SUNY employees whom he controlled. The Commission eventually gained an independent staff.
Once functioning, the Commission process fractured along political lines. The Commission could not agree on a single redistricting plan submission, so it submitted a partisan offering that included two sets of congressional and state legislative maps, one approved by Commission Republicans and one approved by Commission Democrats.
The Legislature rejected both the Republican and the Democratic maps and sent the process back to the Commission. The Commission, however, was utterly deadlocked and unable to reach an agreement. It failed to even submit a second round of proposed plans.
Without a second submission, the Democratic-controlled Legislature enacted its own congressional map. This action by the Legislature was later judged by the courts in 2022 to have been a critical mistake.
Several Republican voters immediately challenged the Democratic-controlled Legislature’s congressional district map in Harkenrider v. Hochul, filed in rural Steuben County state Supreme Court (New York’s trial court). They alleged that the congressional map was improperly enacted and politically gerrymandered by the Democratic-controlled Legislature in violation of the state constitution. Steuben County Supreme Court Justice Patrick F. McAllister agreed with the Republican plaintiffs. Judge McAllister ruled that the Legislature did not have authority to enact the map and found that the map was overtly partisan in favor of Democrats. He also found that the map violated one of the unprioritized constitutional criteria: that a map shall not favor or disfavor political parties or candidates.
The Democratic parties appealed, and the case reached the state’s highest court, the Court of Appeals, which agreed with the Republican litigants and overturned the congressional map approved by the Democratic-controlled Legislature. The Court held in a 4-3 ruling that the congressional district plan was substantively and procedurally unconstitutional and sent the matter back to Judge McAllister to appoint a special master to redraw the congressional map.
Chief Judge Janet DiFiore, writing for the majority, ruled that the Legislature lacked the procedural authority under the constitutional redistricting process to act on its own without first rejecting a second Commission submission. The Court further faulted the Legislature for violating the 2012 statute enacted in conjunction with the 2014 amendment that had restricted the Legislature from making changes to Commission maps that would impact more than two percent of the population in any district. The majority ruled that the congressional map drawn by the Legislature was substantively unconstitutional as it was “drawn with impermissible partisan purpose.”
Judges Michael Garcia, Madeline Singas, and Anthony Cannataro concurred with Chief Judge DiFiore, while Judges Shirley Troutman, Rowan Wilson, and Jenny Rivera wrote individual dissenting opinions.
The dissents favored the Legislature over the courts with respect to redistricting. One dissent argued that the court should have adopted a remedy that corresponded to the procedural error by giving the Legislature a full and reasonable opportunity to correct the maps rather than dictate a judicial remedy. The dissenting judges would have preferred to put the Legislature on a strict timetable and with limited power to amend the maps rather than give ultimate authority to a single trial court judge. The dissenting judges objected to subjecting New Yorkers to the possibility of ten years of district lines drawn by, as one dissenting judge put it, “an unelected individual, with no apparent ties to this State” (the media had reported extensively on the special master’s background).
The dissenting judges would have upheld the Legislature’s map. As one judge asserted, there was in fact no procedural violation because the Commission did submit two plans, they just happened to be submitted at once, and regardless, the Legislature is not required to approve a Commission plan as drafted.
The Court of Appeals’ majority ruling nonetheless sent the matter back to Judge McAllister to appoint a special master. Judge McAllister chose Dr. Jonathan Cervas, a talented redistricting expert from Carnegie Mellon University and charged him to draw new district maps for the U.S. House of Representatives and State Senate districts. Working on a tight timeframe due to the 2022 election calendar, Dr. Cervas crafted new maps that Judge McAllister accepted and ordered to be used for the 2022 elections. The new congressional map saw Republican gains in several New York districts, though Republican candidates may have won new districts even if the rejected Democratic map had been used. Democrats, however, retained their supermajority in the State Senate under the court’s map.
In June 2022, before the November 2022 congressional elections, a group of Democratic voters filed Hoffmann v. IRC in Albany County state Supreme Court, seeking to compel the Commission to return to the drawing board to fulfill its constitutional duty by submitting to the Legislature a second congressional map. State Supreme Court Judge Peter Lynch rejected the request to redraw congressional districts, ruling that the congressional mapping process was complete and could not be revisited until after the 2030 Census. Judge Lynch ruled that the Commission lacked authority to issue a second redistricting plan after the deadline set by the 2014 constitutional amendment.
The Democratic voters appealed, and the case also made its way to the state’s highest court, the composition of which had changed since it handed down the Harkenrider decision. On December 12, 2023, in another 4-3 decision, the Court of Appeals this time sided with the Democratic litigants and ordered the Commission to “comply with its constitutional mandate by submitting to the legislature, on the earliest possible date, but in no event later than February 28, 2024, a second congressional redistricting plan.” The date was chosen so that the Legislature and Governor could approve the districting plan for the 2024 election cycle.
Newly-appointed Chief Judge Rowan Wilson wrote the majority opinion. Drawing partially from the perspectives of the Harkenrider dissenting judges (including his own dissent), Chief Judge Wilson reasoned that court-drawn districts are disfavored because redistricting is predominantly a function of legislatures—a sentiment shared by numerous U.S. Supreme Court opinions. He also explained that courts should not be in the map-drawing business and court-drawn redistricting plans should be used “only to the extent it is required to remedy a violation of law.” The majority — contrary to the Republican litigants’ contention—ruled the Harkenrider decision was limited to only the 2022 election.
Judge Cannataro, who had been in the majority in the Harkenrider opinion, penned the dissent, in which Judges Garcia and Singas concurred. Judge Cannataro asserted that the judicial intervention in Harkenrider (the special master’s plan) was consistent with the constitutional process and that the constitution mandated that the district lines approved in the earlier case should have remained in place until after the next U.S. Census in 2030.
The Commission, ordered by the second Court of Appeals decision, began work to develop a new congressional district map to send to the Legislature. Surprising to many, the Commission successfully completed its mission, and by a 9 to 1 vote, submitted a new plan.
Most of the Commission’s work on the second plan took place behind closed doors, limiting public input. However, on December 28, 2023, the Commission held a short public meeting to fill a personnel vacancy and to formally re-engage the mapping consultants and a racial and ethnic minority voting rights expert who had worked with the Commission on the new Assembly map that was also the subject of similar earlier litigation. Several good government and voting rights groups criticized the lack of public hearings, arguing that the last public hearing was held in December 2021 and much had changed since then.
On February 15, 2024, the Commission sent a single, bipartisan congressional map to the Legislature along with enacting legislation, thus fulfilling its constitutional duty as ordered by the Court of Appeals’ second opinion. Prior to the vote, Commission Chair Ken Jenkins noted that while the Commission did not hold additional public hearings prior to drafting this final submission, in October 2023 the Democratic commissioners had called for public input while the Court of Appeals’ decision was pending. Chair Jenkins highlighted that this invitation yielded over 2,700 written submissions.
On February 27, 2024, the Legislature yet again rejected the bipartisan Commission map. The Legislature then drew its own map pursuant to the constitutional provision that permits the Legislature to amend the Commission map “as it deems necessary” subject to the Governor’s approval. The Assembly and State Senate approved the new map (Chapter 92 of the Laws of 2024) with supermajority votes and support from several minority party legislators in both chambers.
The Legislature, in approving the new map, demolished its own rule on the population criteria, overriding the statute that prohibited the Legislature from changing any single Commission map district by more than two percent. That would have limited district changes by no more than about 15,000 out of 770,000 people. Instead, the map adopted by the Legislature changed some of the Commission-drawn districts by as much as nearly eight percent from the 2022 court-drawn map.
The new map went into effect in time for the November 2024 election cycle. The start of ballot petitioning for the June 25 primary, however, was delayed from February 27 to February 29, 2024. Republicans who had challenged the 2022 map have not sought judicial review of the 2024 map.
With approval of the new 2024 congressional map and no legal challenges on the horizon, the chaotic and prolonged post-2020 Census line-drawing process appears to have come to an end, two years later than anticipated by the 2014 constitutional amendment.
Redistricting Reform Still Necessary
New York State must reform its redistricting process before the 2030 cycle gets underway. Constitutional reforms are needed in three overall areas: a new redistricting process; tighter redistricting rules and criteria to be followed by the Commission; and standards to be followed by state courts in reviewing redistricting plans.
Redistricting Rules
The Independent Redistricting Commission is far from independent. As Albany County State Supreme Court Judge Patrick McGrath wrote in Leib v. Walsh (a challenge to the text of the 2014 ballot proposal before it went before voters), “the Commission cannot be described as ‘independent’ when eight of ten members are the handpicked appointees of the legislative leaders and the two additional members are essentially political appointees by proxy.” The Commission is only independent by name, a strategic move by the drafters to make the public believe it was something it wasn’t.
Additionally, because the Legislature was permitted to draft its own plan after twice rejecting Commission proposals, the Commission was more akin to an advisory commission than an independent one.
A new and improved redistricting process would involve a revamped commission composed of volunteer citizens who are not appointed by political leaders and who are selected after a robust vetting process by an independent actor. Two models could be considered: 1) A commission with final authority and fully independent of the Legislature, or 2) A bi-partisan commission with final authority and a neutral tiebreaker. With either of these two frameworks, congressional and state legislative maps would not be subject to approval by the State Legislature.
Prospective candidates for the commission could be “vetted” by a disinterested third party, such as the State Comptroller who, although an elected official, would serve a limited and narrowly defined administrative role. Furthermore, future commissions should be required to conduct all business, including mapping sessions, in full public view. No mapping sessions or other meetings should be conducted by small groups of commissioners with less than a quorum to avoid the state’s Open Meetings Law requirements. The redistricting process should be transparent, fair, and accessible to the public, similar to how the process is conducted in California and Michigan where all actions are open to the public.
The 2014 amendment’s rules for approving maps by the commission and the Legislature should be changed to permit simple state legislative majority approval (as is required to pass regular legislation) and the elimination of complicated voting rules controlled by the political party with a majority in the Assembly and Senate.
Voting by the commission should be structured much differently. The arcane rules establishing the approval process for new maps set out in the 2014 amendment should be scrapped in favor of majority voting by commission members. Membership should also be set at an odd number to assure a needed tie-breaker.
Adequate funding and staffing levels, independent from interference by the Governor, must be provided by the Legislature in the state budget. The Legislature can lend administrative assistance to the commission, but its operations and map drawing should be fully independent.
Obsolete provisions left in the state constitution from 1938 and earlier should be removed. The 2014 amendment left in place outdated and irrelevant language that only serves to confuse people. For example, confusing and hard to understand block-on-border restraints on State Senate districts are no longer relevant and should be eliminated. A new amendment should be written in clear language so it is understandable by the public.
Criteria
New York’s constitution currently sets out the redistricting criteria in an unranked order, meaning there is no guidance as to which principles should be prioritized over others. As former Commission Chair David Imamura explained, one of the components of map-making that the 2021 commission struggled to agree upon was “how various communities of interest should be respected in accordance with the constitutional criteria.” Navigating redistricting criteria is difficult in any scenario as the principles are often in conflict with one another, but without any guidance as to prioritization, it can prove impossible to comply with each criterion simultaneously.
To remedy this, criteria should be ranked in priority order, similar to requirements placed on the state’s local government redistricting processes in the state’s Municipal Home Rule Law. Prioritized criteria help guide decisions as higher ranked criteria are given greater weight and precedence over lower ranked criteria. Population equality, minority voting rights, a prohibition on partisan gerrymandering, and maintaining communities of interest should be the top-ranked criteria. This kind of prioritization has worked particularly well for New York City Councilmanic redistricting for over 30 years.
There should also be a permanent cap on the number of state senators, similar to the limit of the Assembly’s 150 districts. Without a cap, future commissions and legislatures could manipulate the number of Senate districts for partisan purposes, as had been done for several decades up to the 2012 redistricting. A new amendment should also make permanent an end to so-called “prison gerrymandering,” so that incarcerated individuals can be counted for congressional and state legislative districts from their homes of record before incarceration (the current state statute addressing this left out reallocation for congressional districts, limiting the change to the state legislative districts).
Court Review
The courts should be provided better guidance on the standard for reviewing redistricting plans. As Todd Breitbart and Jeff Wice pointed out in the 2016 book “New York’s Broken Constitution,” plaintiffs seeking judicial review of a map should only be required to demonstrate that a new map or the process by which it was developed “is clearly erroneous in its application of the rules, not that the error resulted from an act of bad faith, and that they must prove this only by clear and convincing evidence, not beyond a reasonable doubt.”
The Legislature has already taken one important step toward reform. In 2023, it enacted a new statute that requires all judicial challenges to redistricting maps be filed in one of four counties (New York, Westchester, Albany, and Erie) in order to limit “judge shopping” for a favorable court. Further consideration could be given to have all challenges heard in the capital-based Albany County courts with direct appeals to the Court of Appeals.
Redistricting laws in California, Michigan, and Arizona can serve as statewide models. These states enacted redistricting reforms that are independent of state legislative approval. Recent redistricting reforms adopted in Syracuse and Albany County can also serve as models of commission efforts. These reforms created commissions that were mostly independent of the local legislatures and have been successful.
In light of the New York Court of Appeals holding in the Hoffman decision that under the current state constitution it is the responsibility of the Legislature and not the courts to draw maps, consideration should also be given to what would happen if a truly independent state commission failed to develop final maps. Some suggest that given this possibility, reform legislation should contemplate an appropriate role for the State Legislature in this scenario. That will likely be one of the major reform issues for debate. Since most of the final 2024 congressional map was similar to the Commission’s proposal (which was also similar to the 2022 court-drawn map), perhaps New York’s legislators should be more amenable to creating a completely independent process. The Assembly map approved in 2023 was also similar to the Commission map proposal.
When To Reform Redistricting?
To amend the state constitution, an identical amendment must be approved by two successively elected state legislatures before being submitted to the state’s voters for approval. Since a new amendment should be in place before 2029, the legislatures elected no later than in 2024 and 2026 must develop and approve an amendment so it can be approved by voters in the November 2028 election or sooner. Discussion is already underway to enact a new redistricting process and new proposals should be considered by the Legislature by next year. It’s important that the redistricting reform effort gets well underway before the 2025 state legislative session starts. After two years of chaos and uncertainty over the post-2020 maps, New York can ill-afford a repeat performance after 2030.
Jeffrey M. Wice is an Adjunct Professor and Senior Fellow at New York Law School. He directs the school’s N.Y. Elections, Census & Redistricting Institute.
Piper Benedict is a 2024 graduate of New York Law School.