By Jeff Wice & Alexis Marking
This week: Trump Revokes Biden Census Rule, Nassau County Sought Removal of Judge in Redistricting Case, Time Extension Requested in Mayoral Party Designation Lawsuit, Assemblyman Wieder to Serve in state and county office, Ulster Legislator Challenged Over Residency, Census Citizenship Question Legislation Introduced, Lawsuit Seeks to Exclude Undocumented Persons from Reapportionment, Register Now for January 28th Census Conference
N.Y. ELECTIONS, CENSUS & REDISTRICTING UPDATE
BREAKING NEWS- EXECUTIVE ORDERS
Trump Revokes Biden Executive Order on Census Counting
In one of his first rounds of issui9ng executive orders, President Donald Trump revoked President Biden’s 2021 executive order affirming that the census count the total number of persons living in each state. While it is not clear what “next steps” will be taken by the new Trump Administration on the census, revocation of the Biden order may make it easier to adjust the 2030 decennial count to exclude non-citizens from the census count for congressional reapportionment. More to come soon.
N.Y. VOTING RIGHTS ACT LIGITATION
Nassau County Legislature: Coads et al. v. Nassau County & NY Communities for Change (NYCC) v. Nassau County
On January 5th, Nassau County filed a motion for disqualification and a memorandum of law (“memo”) in support of this motion to remove the Judge from this case for making allegedly biased remarks to one of the county’s attorneys.. In the memo, the defendants argue that the state supreme court’s disqualification is required under the N.Y. Code of Judicial Conduct for three reasons.
First, the court’s ex parte communication to the defendants’ counsel on December 20th “creates a circumstance—standing alone—where the court’s impartiality might reasonably be questioned.” Second, the court’s statements relating to the Even-Year Election Law on December 19th and 20th created “an appearance of impropriety.” Lastly, the court’s impartiality may reasonably be questioned in combination with the above and the “manner of the court’s appointment.” The defendants also argue that failure to disqualify the court would violate the Due Process Clause of the Fourteenth Amendment.
On January 5th, Bennet Moskowitz and Mary “Molly” DiRago, both serving as counsel for the defendants, submitted affirmations in support of this memorandum. Later that week, the judge orally rejected the motion for disqualification.
ELECTION LAW
Eastern District of New York (Brooklyn): Walden v. Kosinski et al.
On January 17th, the federal district court in Brooklyn granted the parties’ request for an extension of time to file an answer and to set a briefing schedule on plaintiff Jim Walden’s motion for a preliminary injunction, which must have been served by January 15th. Defendants may serve any opposition on or before January 31st. Walden is seeking to run for mayor on an “Independence” party line and state law currently prohibits use of that word on the ballot.
Walden shall serve any reply and file all documents on or before February 7th. The State Board Defendants shall file an answer or otherwise respond to Walden’s complaint on or before ten days after the Court decides the motion for a preliminary injunction.
CENSUS
U.S. House Bill Seeks 2030 Census Citizenship Question
As reported by Helen Brewer of the National Conference of State Legislatures, “U.S. Representative Chuck Edwards (R-NC) introduced HR 151 (linked here) in the U.S. House of Representatives last week. The bill’s description says that the bill seeks to “[t]o require a citizenship question on the decennial census, to require reporting on certain census statistics. And to modify apportionment of Representatives to be based n United States citizens instead of all persons.” Historically, apportionment has been based on all persons. This is a reintroduction of last year’s HR 7109, which passed the House of Representatives last May. Text of HR 151 is not available yet, but you can view last year’s bill here.”
Four States Seek to Exclude Undocumented Persons & Non-immigrant Aliens From Reapportionment
Led by Louisiana Attorney General Liz Murrill, Louisiana filed an action in the Western District Federal Court in Louisiana to exclude undocumented persons and non-immigrant aliens (such as foreign embassy personnel) from the population count when determining the number of congressional districts for each state. Louisiana was joined by Ohio, Kansas, and West Virginia in this action against the Commerce Department. The case was filed on Friday against Biden Administration officials but will now be addressed by the Trump Administration. Past legal efforts to exclude undocumented persons from the congressional reapportionment have been unsuccessful.
LEGISLATORS
Assemblyman Wieder to Remain in Rockland County Legislature
Freshman Assemblyman Aaron Wieder (D-Rockland) announced his intention to keep his position as an elected member of the Rockland County Legislature while he also serves in the state Assembly. There is no prohibition in either the state constitution or Rockland County charter prohibiting dual service.
As reported by Chris McKenna in LoHud, Wieder may be able to attend legislative sessions in Albany during daytime and cover Rockland County meetings that are held in night. One issue Wieder will have to deal with is the state prohibition (now in court) on making over $35,000 a year. That state law is now pending appeal, so Wieder can accept his state and county salaries without conflict for the time being.
Ulster County Legislator Responds to Allegations He Lives Outside His District
Ulster County Legislator Joe Mahoney is facing allegations that he does not live in the Saugerties district he represents in the county legislature.
Howard Baul, a labor-relations specialist with Civil Service Employees Association (CSEA) made that charge during a recent legislative meeting, according to HV1 (Hudson Valley One E-Paper). Maloney denies the accusation, arguing that he owns a home in Saugerties. Baul alleges that he lives in Monroe where his in-laws owned a home and where he also spends time.
State law requires that a legislator live in the district they represent. However, legislators whose districts were changed after a recent redistricting can be elected from a residence outside a newly redrawn district and must relocate into the proper district within a year. Legislator Mahoney’s next steps on residency are unclear.
AROUND THE NATION
U.S. Supreme Court Upholds North Dakota House Districts
The U.S. Supreme Court has upheld the North Dakota Legislature’s creation of subdistricts (for state House districts 4 and 9), which went into effect in 2021. The law was challenged by local Republican officials in North Dakota. The lawsuit claimed that these two subdistricts—which were drawn to prevent vote dilution in the Native American populations on two reservations in this area—were unconstitutional racial gerrymanders.
This lawsuit had previously been rejected by a federal three-judge panel in 2023. The panel found that state lawmakers had “good reason” to create the subdistricts under the federal Voting Rights Act because it would give Native American voters a “better chance to elect their candidate of choice.” The Mandan, Hidatsa, and Arikara Nation supported the legislation.
In a separate case, the Eighth Circuit Court of Appeals is weighing a lower court ruling that ordered a new joint North Dakota legislative district for two other Native tribes. The two tribes had argued the new 2021 redistricting plan diluted their voting power. This new district was used in the 2024 elections.
U.S. Department of Justice Sues Tennessee County Over Redistricting Plan
The U.S. Department of Justice (DOJ) has sued Tennessee’s Fayette County, claiming that the county adopted a redistricting plan that “denies Black voters an equal opportunity to elect candidates of their choice.”
According to the DOJ, Fayette County’s Board of Commissioners rejected several plans that would have combined Black communities during the 2021 redistricting cycle. If approved, these combined communities would have had the voting power to elect any candidate of their choice.
The DOJ alleged that the Board disregarded the guidelines and recommendations provided by its redistricting committee, as well as the advice of an attorney that the Board hired for guidance during the redistricting process.
Four Black candidates have lost in the county’s general elections since the adoption of this redistricting plan and no Black candidate has been elected to the nineteen-member County Commission. Approximately twenty-six percent of the county’s voting age population is Black.
The DOJ has asked the district court to block the Board from using this redistricting plan for any upcoming elections.
UPCOMING EVENTS
New York “American Community Survey” Census Conference
January 28, 2025- Census” “ACS On the Road” – Join New York Law School, New York Counts, the Population Reference Bureau, New York City Planning Department, and the U.S. Census Bureau to learn how different data users in New York City use American Community Survey (ACS) data. We will conclude with small breakout sessions where you will have the opportunity to interact with Census Bureau staff and share what you need to better use ACS data in your own work. The event will be held at New York Law School, 185 West Broadway, Manhattan from 9:00 AM to 2:00 PM. Registration is required. You can register here: https://nyls.wufoo.com/forms/qnqo80v1iobqqa/
INSTITUTE RESOURCES
The New York Elections, Census and Redistricting Institute has archived many resources for the public to view on our Digital Commons Page.
Our Redistricting Resources page contains resources on the John R. Lewis Voting Rights Act. You can access the page
here: https://digitalcommons.nyls.edu/redistricting_resources/
Archived Updates can be accessed
here: https://digitalcommons.nyls.edu/redistricting_roundtable_updates/
Please share this weekly update with your colleagues. To be added to the mailing list, please contact Jeffrey.wice@nyls.edu
The N.Y. Elections, Census & Redistricting Institute is supported by grants from the New York Community Trust, New York Census Equity Fund and the New York City Council. This report was prepared by Jeff Wice & Alexis Marking.