This past week, New York's highest court, in a 4-3 decision in Matter of Hoffman v. NYS Independent Redistricting Commission, ordered the state's bipartisan Independent Redistricting Commission (IRC) to reconvene and to redraw the state's congressional districts. There's much to be said about that decision, both legally and politically.
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Presumably, only a few Court junkies (myself included), the participating lawyers, legal reporters covering the case, the Court's Judges and their clerks, and some diverse others have actually read the 60 pages of judicial opinions. So it might be worthwhile to highlight some of the important--and interesting--takeaways from this case. Here is my own subjective and (out of mercy for my readers) incomplete list.
First, the decision itself and the context:
Last year, the Court, in Matter of Harkenrider v Hochul, declared that the Democratic-controlled state legislature had engaged in partisan gerrymandering, which is explicitly prohibited by the state constitution's 2014 amendment. As a remedy, the Court's 4-3 majority in that case returned the matter to the trial court where the case had commenced, and ordered the trial judge to redistrict the state in time for the upcoming 2022 elections. That upstate Republican judge did so, with the help of a "special master" (a statistician), drawing a purportedly partisan-neutral map for the state's 26 congressional districts.
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The legislature's map that the Court of Appeals had invalidated might well have favored the Democrats to gain as many as six congressional seats. But the trial judge's map resulted in the Republicans flipping four seats from the Democrats, creating a slimmer Democratic majority of 15 to 11.
The Democrats then brought this lawsuit. They argued that the trial judge's map was only a temporary emergency remedy for the fast-approaching 2022 elections; that it was not a more permanent map to last for the remainder of the ten years until the next federal census. As the case proceeded through the state's court system, the intermediate appellate court (the Appellate Division, Third Department) agreed with the Democrats in a 3-2 decision, and the 4-3 Court of Appeals has now agreed as well. In contrast to last year's Harkenrider decision, New York's high court in this year's Hoffman decision ordered the Independent Redistricting Commission (IRC) to do its state constitutional duty and create a redistricting map.
Takeaways from the Decision:
- The Democrats Win. The Democratic senators got what they wanted. They will now get a new redistricting which, almost certainly, will be an improvement for them compared to the trial judge's map last year. Recall that, earlier this year, the Democratically-controlled state senate had (shamefully) rejected Governor Hochul's first nominee for Chief Judge, Appellate Division Presiding Justice Hector LaSalle. Subsequently, after the Judicial Nominating Commission sent the Governor a new--and very different--list of candidates, the Democratic majority approved her second nominee, their much-favored then-Judge of the Court of Appeals, Rowan Wilson (who--even more shamefully--was left out of the Commission's first list to the Governor). Wilson had forcefully dissented from the Court's redistricting decision in Harkenrider last year and, now as Chief Judge, he has authored the Court's majority Hoffman decision, holding that the previous redistricting by the trial judge was only a temporary measure. The Democrats' political maneuvering has little to do with the legal and constitutional merits of this new decision. But it certainly has major political implications.
- The IRC, Not A Trial Judge Wilson's opinion for the majority in this past week's Hoffman decision emphasized the limited role that the judiciary is supposed to play in congressional redistricting. Under the state constitution, it is the IRC--with some legislative modification allowed--that has the authority and duty for redistricting. With that in mind, especially considering the context of last year's Harkenrider decision with elections fast approaching, the redistricting performed by the trial judge, as directed by that decision's majority, could only be viewed as a temporary emergency measure, according to Chief Judge Wilson. It was not a more permanent decade-long redistricting. The IRC must now draw that more permanent map.
- Stare Decisis? According to the dissenting opinion this past week in Hoffman--authored by a clearly angry Judge Anthony Cannataro, who was part of the 4-3 majority in last year's Harkenrider decision--"stare decisis does not permit the majority to overturn our precedent merely because they would decide the case differently now than we did then." [My emphasis.] With all due respect to the dissenters, last year's Harkenrider decision was not a precedent for deciding this year's case. The substantive constitutional issue in this year's Hoffman case was very different. It was not about whether the Democrat's previous redistricting map amounted to invalid partisan gerrymandering. Nor was it about the validity of the Court of Appeals' remedy at that time--i.e., sending the case back to the trial judge to do a quick redistricting that would be ready for the fast-approaching elections. Rather, the case just decided in Hoffman was about whether the remedy ordered last year was a temporary emergency one, or a more permanent decade-long one--i.e., one that entirely superseded the constitutionally assigned duty of the IRC until the next 10-year redistricting. Whether the Wilson majority or the Cannataro dissenters got that question right, it was a very different issue than the ones that were decided in last year's case.
- The Change in Composition Did It? Also, according to the dissenting opinion, "the majority is able to reach this result for one reason only: because the composition of the Court has changed." [My emphasis.] Well, the composition of the Court has indeed changed. Former Chief Judge Janet DiFiore resigned and Rowan Wilson--who was on the opposite side of last year's redistricting decision--has replaced her. Also, Presiding Appellate Division Justice Dianne Renwick was vouched onto the Court to fill in for Judge Caitlin Halligan, who had recused herself from the case. So yes, the composition was different. But, as with the previously discussed complaint of the dissenters, this one misses the mark. It has partisan political appeal, but it has nothing to do with the actual legal and constitutional merits of this past week's Hoffman decision--which, again, involved a very different constitutional issue.
- The Exigencies in 2022 Related to the previous three items, both the majority and the dissenters in this past week's Hoffman decision recognized that last year's redistricting, created by a trial judge, had been ordered by the Court of Appeals in Harkenrider because of the urgent circumstances of the fast-approaching elections. As Chief Judge Wilson's majority opinion in Hoffman explained, the Court last year had
concluded that 'judicial oversight [wa]s required to facilitate the expeditious creation of constitutionally conforming maps for use in the 2022 election'...[The Court] then remitted the matter to Supreme Court [i.e., the state trial judge] to adopt, with the assistance of a special master, constitutional maps 'with all due haste'...Less than a month later, Supreme Court [i.e., again, the state trial judge] certified the maps prepared by a special master as 'the official approved 2022 Congressional map.' [My emphasis.]Similarly, in Judge Cannataro's opinion this past week, the dissenters themselves actually explained that, "[i]n [last year's decision in] Harkenrider, this Court determined that it was required to order the adoption of maps as a constitutional remedy for a variety of reasons, including...the exigencies created by the impending 2022 elections." [My emphasis.] Attempting to minimize the "exigencies" as underlying the Court's decision last year, the dissenters actually reinforced that very factor. In the dissenting opinion's own words: "This Court’s opinion necessarily referenced the impending 2022 election at various intervals. However, such references served only to clarify that the remedy would not be postponed until after the 2022 elections." [My emphasis.] None of the foregoing necessarily demonstrates that the majority or the dissenters were right about the substantive merits of this year's Hoffman decision. But it does show unequivocally that the Court's Harkenrider decision last year, to return the case to a trial judge to perform the redistricting, was, indeed, an emergency measure.
- The Constitutionally Limited Judicial Role (A) Underlying the Wilson majority's conclusion in Hoffman, that the trial judge's redistricting last year must have been a temporary measure dictated by the urgency of the upcoming elections--and not a more permanent substitution for the IRC's role--are several relevant state and federal constitutional prescriptions. As for the New York state constitution, the 2014 Amendment states quite plainly that "an independent redistricting commission shall be established to determine the district lines for congressional and state legislative offices” (NY Const, art III, § 5-b [a]). [My emphasis.] Additionally, addressing a potential role for the courts, that same amendment also provides that "The [IRC] process for redistricting congressional and state legislative districts...shall govern redistricting in this state except to the extent that a court is required to order the adoption of, or changes to, a redistricting plan as a remedy for a violation of law. (NY Const, art III, § 4 [e]. [My emphasis.] The trial judge's redistricting, ordered last year in Harkenrider, might have been the "extent" "required" to remedy partisan gerrymandering in time for the approaching 2022 elections. The majority's argument this past week in Hoffman is that such an "extent" is hardly required any longer, because there is plenty of time for the IRC to perform its constitutional duty before the 2024 congressional elections.
- Constitutionally Limited Judicial Role (B) Regarding the federal constitution, it too prescribes a limited role for state courts in the redistricting process. The "Elections Clause" (Article I, Section 4) places the authority for determining congressional districts in the state legislatures: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof." [My emphasis.] In its 2015 decision in Arizona State Legislature v. Arizona Independent Redistricting Comm'n, the Supreme Court ruled that an independent commission, established in a state constitutional amendment approved by the voters, can validly do the redistricting work as well. So, a state's legislature or a state's redistricting commission may do the work. The dissenters in this week's Hoffman decision relied on another Supreme Court decision, Moore v. Harper, decided earlier this year, for the proposition that--as the dissenters paraphrased it--"while redistricting may traditionally be a legislative function, state courts are the appropriate tribunals to hold state legislatures to compliance with state constitution redistricting requirements." Yes, but in the Supreme Court's own words, the holding was simply that "whatever authority was responsible for redistricting [i.e., state legislature or commission], that entity remained subject to constraints set forth in the State Constitution." [My emphasis.] And more to the precise point here, making clear that state courts were not the ones to do the redistricting themselves, the Supreme Court emphasized that,
Although we conclude that the [federal constitution's] Elections Clause does not exempt state legislatures from the ordinary constraints imposed by state law, state courts do not have free rein...We hold only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections. [My emphasis.]
Again, a limited role for the state courts, and one that surely does not seem to include "arrogat[ing] to themselves the power" of performing the redistricting themselves--like the trial court was ordered to do in the Court of Appeals' Harkenrider decision last year.
I'll spare my readers and stop here. Those were the essential highlights I took away from the Court of Appeals' redistricting decision this week in Hoffman. Other commentators might well select their own different highlights and take issue with mine.
One additional takeaway which we'll consider in the next post, continuing the NYCOA: The Wilson Uptick series, has to do with who is suddenly been dissenting since Rowan Wilson became Chief Judge.