With the balance of power in Congress hanging by a thread, the House of Representatives’ fate in next year’s election may have been determined on Tuesday—not by the people, but by New York’s highest court. In a 4–3 majority opinion written by Chief Judge Rowan Wilson, the Court of Appeals ordered the state’s bipartisan Independent Redistricting Commission (IRC) to redraw a congressional map by February 28. The decision, which ostensibly gives effect to the state constitution’s revised procedure for redistricting, instead risks giving the Democratic-controlled legislature another chance to draw a gerrymandered congressional map. Worse, a questionable recusal by the high court’s swing vote gives New Yorkers reason to view the case—and the Court of Appeals as an institution—as nakedly political and outcome-oriented.

As I wrote last year, New York’s latest redistricting cycle—the first to implement a 2014 constitutional amendment requiring the IRC to draft districts for the state legislature and U.S. House—was a mess. When the time came for the IRC to submit a proposed congressional map to the legislature, it quickly deadlocked along party lines, and the legislature rejected the two competing maps that the commissioners from each party had drafted. Though the state constitution stipulates that the IRC submit a second plan after rejection of its first, the commission declined to do so. Democratic supermajorities quickly passed a map giving their party a significant edge.

A Republican-led legal challenge on procedural and partisan gerrymandering grounds, Harkenrider v. Hochul, ensued, and the Court of Appeals rejected the legislature’s map in late April 2022. The court held, in a 4–3 decision over a dissent by then-Associate Judge Wilson, that the IRC’s failure to submit a second map ran afoul of the state constitution’s mandated procedure, and that the state legislative map was impermissibly designed to help Democrats. As a remedy, it ordered the district court to draft a replacement, with the help of an expert, nonpartisan special master. That map, approved by the district court that May without limiting it to 2022, encouraged greater political competition. In last year’s midterm elections, New York Republicans flipped three House seats.

Democrats, represented by prominent election lawyer Marc Elias, then led a lawsuit against the IRC and its commissioners in the summer of 2022, seeking a writ of mandamus to compel the commission to submit the second map that it failed to provide the legislature. They asserted that the special master’s map was intended for the 2022 elections only and shouldn’t pertain until the 2030 redistricting. The district court held for the defendants, dismissing the petition. In a 3–2 decision in July, the intermediate appellate court reversed, ordering the IRC to begin drawing a second map. Some of the IRC members appealed.

In October, before oral arguments took place, Court of Appeals Associate Judge Caitlin Halligan, who took Wilson’s seat upon his elevation to Chief Judge, unexpectedly recused herself. As the only judge not present for last year’s Harkenrider decision, Halligan was the key swing vote. She offered virtually no explanation, except for checking a box on a recusal form indicating that she had a close personal relationship with an attorney or party in the case. The editorial board of the New York Daily News, after weeks of trying to uncover the reason for the recusal, concluded that it was because Halligan is friends with a pro-bono lawyer who merely submitted an amicus brief on behalf of the League of Women Voters. In the insular world of appellate litigation, such relationships are by no means uncommon. According to the Daily News, there’s no precedent for this sort of recusal.

If that wasn’t suspicious enough, Wilson then took the unconventional step to “vouch in,” or substitute, Presiding Justice Dianne Renwick to take Halligan’s seat. Renwick, who leads the Appellate Division, First Department, was part of a panel that decided a related case last year in favor of having state Assembly districts redrawn. This history suggests a stronger likelihood of partiality than a mere friendship with an amicus brief’s lawyer.

Considering such apparently politically motivated maneuvering, Tuesday’s decision, based on complex textual acrobatics over the state constitution’s wording, shouldn’t come as a great surprise. State Republican leaders called the outcome “preordained.” Associate Judge Anthony Cannataro, writing in dissent, lamented that “politics triumphs over free and fair elections.”

New York’s interminable and dysfunctional redistricting has layers of irony. In seeking to give life to the 2014 constitutional amendment, enacted for the purpose of replacing decades of partisan gamesmanship with a fairer, bipartisan process, the majority’s decision may lead to a congressional map created by Democratic legislative supermajorities for their congressional allies’ advantage. If the IRC’s second map doesn’t improve Democrats’ chances of winning back the seats they lost last year, the legislature need only reject it to be granted another bite at the gerrymandering apple.

The only thing that stands in their way is the near-certain threat of a Republican lawsuit challenging such a replacement map on partisan gerrymandering grounds. With the Court of Appeals’ 4–3 liberal majority and its apparent willingness to play politics, it seems poised to bless such a map as constitutionally permissible. Republicans therefore have an incentive to file a challenge in a friendly jurisdiction, secure an injunction, and prolong the litigation as much as possible to prevent the new map’s timely use. (But the courts might also, like last year, delay the primary—another adverse possibility.)

The decision therefore subjects New Yorkers not only to the confusion and embarrassment of a mid-decade redistricting but also to still more litigation—the very outcome that impelled a commanding majority of voters to approve the 2014 constitutional IRC amendment. Once again, the will of the few prevails in the Empire State.

Photo by demerzel21/iStock


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