New York’s Top Court Considers Redistricting – Again

Posted by NYPIRG on November 20, 2023 at 10:15 am

Last week, New York’ highest court heard arguments over whether it should intervene to allow changes to the state’s Congressional district boundaries. 

How the court rules could have huge implications for the nation and the world.  The current House of Representatives has a small Republican majority.  That majority exists, at least partially, due to the success Republicans had in 2022 in capturing 11 of the New York’s 26 Congressional seats.  If New York’s Court of Appeals allows for new lines to be drawn, it could enhance the chances of the Democrats to wrest control of the House in 2025 – the next Congress.

Without getting too deep into the legal weeds, here’s some background.  The court case is the latest litigation that emerged from changes made to the state’s Constitution ten years ago.  Those changes, formulated by then-Governor Andrew Cuomo, were inserted into the Constitution to establish a so-called Independent Redistricting Commission (it’s really bipartisan).  The changes included guidelines on how that Commission would set political boundaries after the census – which is conducted every ten years. 

Critics at that time predicted the result would be gridlock since the Commission has equal numbers of Democratic and Republican members.  Thus, unless the two major political parties cut a deal, nothing could get done.  That is exactly the outcome that occurred after the last census in 2021.

The Constitution offers a way to break the gridlock, if supermajorities in each house of the state Legislature cobble together their own plan and have it approved by the governor.  At the time of the changes, no one predicted that Democrats would have supermajorities in both the state Senate and Assembly.  But in 2021 they did – and still do.

The legislative Democrats developed their own plan — which gave their party a good shot at taking 22 of the 26 seats, but Republicans sued and won.  The court ruled that since the IRC gridlocked and did not produce the maps as required under the Constitutional process, the Legislature did not have the authority to draw its own maps.  As a consequence of that decision, a court-appointed “special master” drew the new lines, which resulted in a stronger Republican performance – and control of the House of Representatives that they now enjoy.

In demonstrating that elections have consequences, the Republican Congressional majority has, among other things, forced reductions in federal spending, launched an impeachment inquiry against President Biden, and blocked aid to Ukraine as it battles to reverse Russia’s unprovoked invasion.  Thus, control of Congress can not only impact American politics, but the history of the world as well.

The current litigation stems from the Democrats’ argument that the Court of Appeals should require the IRC to draft new lines.  Their argument is based on the constitutional requirement that it is the IRC that draws the lines.  They further argue that in 2021-22, the IRC’s failure to do so triggered the court’s intervention since the timetable was so short, but that now there is time and thus the IRC should be allowed a “do over.”

Republicans argue that the Constitution contemplates that redrawing the lines after the census is a once-in-a-decade requirement and that it’s done.

Outside legal experts watching the Court of Appeals judges’ line of questioning at oral argument last week anticipate a close decision.  A decision is expected next month.

As mentioned earlier, the impacts of the court’s decision could have ramifications far beyond politics in New York.  Which political party controls the House of Representatives will impact national policies, may decide the course of history in international affairs, and may decide who resides in the White House in 2025.

Americans don’t have to look far into the nation’s history to see the role that the Congress plays in choosing a President.  As we have seen in the elections of 2000 and again in 2016, the popular vote is not how presidents are chosen, but by the vote of the Electoral College.  Under that system, the states have votes for president based on their Congressional representation.  As we have seen in the attempt by former President Trump to overturn the election of 2020, the House plays a prominent role in our system.  Challenges in the House and Senate could have undermined the results, but in both cases the leadership of those Houses agreed that Joe Biden was elected in a fair election.  A different leadership may have triggered a constitutional crisis.

In order to win the Electoral College, a candidate for President must receive 270 of the 538 electoral college votes.  In 2024, that may be tougher than in other recent elections since there could be significant challengers on minor party lines.  If any minor party candidate wins the election in some states, it may be that no one candidate gets the required 270 vote minimum.  Then what happens?

Under the 12th amendment to the U.S. Constitution, the House of Representatives would elect the President, and the Senate would elect the Vice President, in a procedure known as “contingent election.”  In a contingent election, the House would choose among the three candidates who received the most electoral votes.  Each state, regardless of population, casts a single vote for President in a contingent election.  A majority of state votes, 26 or more, is required to elect, and the House must vote “immediately” and “by ballot.”  Control of the House of Representatives, therefore, may be in a position to choose the next President.

This is not an academic consideration, contingent elections have been implemented three times in American history: in 1801, 1825, and 1837.

As a result, how political boundaries are drawn in New York could decide America’s future in ways not contemplated in modern times.  The decision of New York’s top court may well drive that outcome.  New York, the nation, and the world, may feel its impact.