[EL] Breaking: New York’s Highest Court, on 4-3 Vote, Strikes Down State’s Congressional Districting as Violating the State Constitution Because It Was Enacted with Partisan Intent; Special Master Will Draw the Lines

Wed Apr 27 17:13:28 PDT 2022

As Rick suggests, I'm indeed wary of (though not categorically opposed to)
partisan gerrymandering claims against congressional maps in state court.
The concern with these claims is exactly what Rick says: that, if
successful, they might inadvertently *worsen* the partisan bias of the U.S.
House as a whole, by invalidating maps whose skews offset that of the
chamber in its entirety. Today's New York decision is a case in point:
Depending on what remedy is adopted, the U.S. House's existing
pro-Republican bias might be substantially exacerbated. A few more points:

   1. I'm not agnostic between a fair U.S. House map achieved by
   aggregating fair maps state by state, and a fair U.S. House map achieved by
   aggregating offsetting gerrymanders in different states. I think the former
   scenario is preferable because I think there's some value to congressional
   maps that are fair on an intrastate basis. My fundamental point is that
   when there's a *tradeoff *between national fairness and state fairness,
   national fairness should take priority.
   2. Rick is clearly right about the practical obstacles to achieving
   national fairness through state court partisan gerrymandering suits. That's
   precisely why I worry about them! That said, I could at least *imagine* a
   state constitutional provision stipulating that a state's congressional map
   should be drawn so as to promote national partisan fairness to the extent
   possible. In fact, I've previously floated
   <https://urldefense.com/v3/__https://slate.com/news-and-politics/2019/07/democrats-gerrymandering-scotus-rucho.html__;!!CzAuKJ42GuquVTTmVmPViYEvSg!IEjKb2kBhu3dJBNJq1pCVWwPER3vJtG36YeY---FdEo05SZop0kmHSWWpGdqD9BJg85vgAov6w_jN29Aby5F3STKvGjnGQ$ >
   this idea.
   3. As Rick notes, the difficulties with state court partisan
   gerrymandering suits don't apply to two other approaches: constitutional
   claims in federal court under a standard set by the Supreme Court, and
   statutory claims in federal court under a standard set by Congress. Under
   either of these approaches, *every* congressional map would be subject
   to the same exact legal rule. The likely result would be the first-best
   one: a fair U.S. House map achieved by aggregating fair maps state by
   state. Unfortunately, *Rucho *put an end to the first possibility for
   the foreseeable future, and Congress's inaction this year put the second
   option on ice.
   4. Despite my wariness of partisan gerrymandering claims against
   congressional maps in state court, I do see two benefits to them. First,
   they sometimes push in the right direction. When a state court strikes down
   a congressional map skewed in the *same* direction as the U.S. House as
   a whole (e.g., KS, NC), the result is improved national fairness. Second,
   looking to the future, it's helpful that both parties are bringing -- and
   winning -- these suits. This symmetry might convince Republicans, in
   particular, that they don't need to fear a federal statutory claim because
   such a claim will effectively rein in blue state abuses. How bad can a
   federal statutory claim be, after all, if it works much like the theory
   that Republicans just successfully deployed in New York?

On Wed, Apr 27, 2022 at 3:17 PM Pildes, Rick <rick.pildes at nyu.edu> wrote:

> The decision of the NY Court of Appeals to strike down the state’s
> gerrymandered congressional map prompted me to express a thought that’s
> been on the back of my mind in response to earlier commentary on election
> twitter about the case.  I put up this post:
> Partisan Gerrymandering, from the Perspective of Courts v. Congress as a
> Whole
>
> April 27, 2022, 12:14 pm
> <https://urldefense.com/v3/__https://electionlawblog.org/?p=129034__;!!CzAuKJ42GuquVTTmVmPViYEvSg!PsvaUJdLxQGKHmtm9Grv1jea2nLezJ_ucd-yvI3Z5jLzDTIfy4d1rX9jxu1gbM6sZDZPJr8wcVrcoWqTUvXX3Enp7w$>Richard
> Pildes
> <https://urldefense.com/v3/__https://electionlawblog.org/?author=7__;!!CzAuKJ42GuquVTTmVmPViYEvSg!PsvaUJdLxQGKHmtm9Grv1jea2nLezJ_ucd-yvI3Z5jLzDTIfy4d1rX9jxu1gbM6sZDZPJr8wcVrcoWqTUvVoo_TyNA$>
> Edit
> <https://urldefense.com/v3/__https://electionlawblog.org/wp-admin/post.php?post=129034&action=edit__;!!CzAuKJ42GuquVTTmVmPViYEvSg!PsvaUJdLxQGKHmtm9Grv1jea2nLezJ_ucd-yvI3Z5jLzDTIfy4d1rX9jxu1gbM6sZDZPJr8wcVrcoWqTUvV2FSfB3A$>
>
> With New York’s highest court now striking down the blatant Democratic
> gerrymander of NY’s congressional districts, I want to address a point that
> Nick Stephanopolous @ProfNickStephan has made his “hobby horse” — in his
> words — throughout this litigation. Nick argues that what should matter is
> not whether any particular state is gerrymandered, but whether the U.S.
> House as a whole is gerrymandered. From this perspective, an aggressive
> Republican gerrymandering in Florida is fine if it is offset by an equally
> effective Democratic gerrymander of NY. This is a point my colleague, Adam
> Cox, raised many years ago in academic writing.
>
> Ned Foley and Michael Li have already taken issue with Nick on this claim
> for various reasons they address. But I want to raise a different issue
> than they have. If you believe courts should strike down partisan
> gerrymanders, then courts must inevitably assess congressional maps one by
> one. Courts could never operate from the perspective Nick endorses. States
> enact maps at different times, and courts review them at different times.
> Florida has just recently enacted its congressional map, yet courts in
> North Carolina and Ohio struck down their state’s congressional maps a
> while ago. Any one court must act before every state has adopted its
> congressional plan. The courts cannot wait to see what the overall
> composition of Congress is likely to be, then decide whether a particular
> plan is an appropriate gerrymander or an inappropriate one. The NY courts
> cannot hold that the NY plan might or might not be constitutional,
> depending on what Florida does. In addition, the court decisions across the
> country cannot all be made simultaneously, with every court possessing the
> full knowledge of what every other court is going to do. So this problem
> recurs at another level: the NY courts cannot hold that the NY plan might
> or might not be constitutional, until we first know both what the FL
> legislature is going to enact and what the Florida courts are going to do
> with that enactment.
>
> If you really believe that “what really matters is the partisan fairness
> of the whole U.S. House, not any subpart of it” — Nick’s words — than it
> would seem that this argues for state courts staying out of the business of
> partisan gerrymandering cases involving congressional maps altogether. The
> issue might be different for federal courts, since we can imagine federal
> courts adopting a uniform national standard that would constrain
> gerrymandering to the same extent in every state.
>
> I’m not clear if Nick means to argue that state courts should indeed stay
> out of partisan gerrymandering cases involving congressional maps. I would
> be a bit surprised if that’s his point, given that Nick has been a leading
> proponent — and litigant — in seeking to have courts strike down partisan
> gerrymanders. So perhaps Nick means to be making a theoretical point — that
> partisan gerrymandering for Congress is not a problem if partisan fairness
> overall comes out in the wash — but one that has no bearing on what state
> or federal courts ought to do in these cases. But state courts could never
> operationalize anti-gerrymandering doctrine from the perspective of the
> overall composition of Congress.
>
>
>
>
>
> Best,
>
> Rick
>
>
>
> Richard H. Pildes
>
> Sudler Family Professor of Constitutional Law
>
> NYU School of Law
>
> 40 Washington Square So.
>
> NYC, NY 10014
>
> 347-886-6789
>
>
> _______________________________________________
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> Law-election at department-lists.uci.edu
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-- 
*Nicholas O. Stephanopoulos*
Kirkland & Ellis Professor of Law
Harvard Law School
nstephanopoulos at law.harvard.edu
(617) 998-1753
https://urldefense.com/v3/__https://hls.harvard.edu/faculty/directory/11787/Stephanopoulos__;!!CzAuKJ42GuquVTTmVmPViYEvSg!IEjKb2kBhu3dJBNJq1pCVWwPER3vJtG36YeY---FdEo05SZop0kmHSWWpGdqD9BJg85vgAov6w_jN29Aby5F3STAttxSSA$ 
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