AS THE 2024 ELECTION APPROACHES, NEW YORK’S CONGRESSIONAL LINES AND ITS VOTE-BY-MAIL PROCESS MAY ONCE AGAIN BE IN PLAY

The Congressional elections in New York have become pivotal to both political parties for control of the House of Representatives in 2024.

Upset victories by the Republicans in four New York House seats held by the Democrats were critical to their winning a five-seat majority in the House in the 2022 midterms.

CONTROVERSIAL NEW CONGRESSIONAL MAPS MIGHT BE REDRAWN; LITIGATION UNDERWAY

These Republican victories in 2022 were triggered in part when a New York court ordered a special master to draw new  Congressional maps after the State’s highest court, the Court of Appeals, in a 4-3 decision in late April 2022, rejected the lines adopted by the New York Assembly and Senate in the winter of 2022. The maps ordered by the Court were themselves only part of the story; I wrote about how the Democrats got themselves in the fix they were in during 2022 in a column earlier this year.

New York State’s fights about its Congressional district lines are not over.

In early April of this year, Governor Hochul and Attorney General Letitia James intervened in a pending case about the 2022 redistricting in the New York State Appellate Division in Albany. They argued, along with the original petitioners, that the redistricting process that broke down in the winter of 2022 must be restarted to comply with both law and the State Constitution. That restart compels the New York State Independent Redistricting Commission to proceed past a deadlock that occurred at the Commission in January 2022, which caused the Legislature to proceed with its own plan, the one that was rejected by the Court of Appeals. The Governor and the others argue that the Commission must proceed with a second set of Congressional maps, which they should have done in 2022 after their first ones had been rejected by the Legislature. The Legislature could approve them or, if they disapprove them, once again draw the Congressional lines. If this scenario played out and the Legislature once again drew new lines, there would no doubt be litigation again that would ultimately reach the Court of Appeals.

THE LEGISLATURE SEEKS TO CHANGE VENUE IN CONSTITUTIONAL CHALLENGES TO ELECTION LAWS

On June 10, both Houses also passed legislation which sets court jurisdiction over Constitutional challenges to the election law to only four counties in the State – Erie, Albany, Westchester, and New York (Manhattan). This means that a challenge to new legislative maps could only be brought in those four counties, unlike the situation in 2022 when challenges to the maps were brought in heavily Republican Steuben County. If this bill, which has also not been sent to the Governor, becomes law, maps drawn by the Democrats in the Legislature might get a more sympathetic initial review because so many more of the judges in those counties are Democrats. Judges must still do the right thing and interpret new district maps according to the fair district standards in the State Constitution and laws. A law such as this will surely be challenged in court.

 I will explore later in this column how the redistricting scenario may unfold in New York.

VOTING BY MAIL IN NEW YORK: THE LEGISLATURE TRIED AGAIN

For many decades, voting by mail in New York had been very limited. A voter had to apply for an absentee ballot for cause, meaning illness, disability, or absence from their county of residence on Election Day, following the language of Article Two, Section Two, of the State Constitution. COVID-19 changed vote by mail temporarily.

New York was preparing for its April 2020 Presidential primary, its party primaries, and the general election when the COVID-19 health emergency disrupted the State and the nation. Then Governor Andrew Cuomo used his emergency powers to order the State Board of Elections to postpone the Presidential primary to the regular June primary, to introduce COVID-19 as cause for using an absentee ballot to vote, and to require mail ballot applications to be sent for the June primary to protect voters from infection at the polling places.

Local Boards of Election developed online applications for absentee ballots. The effort was quite successful; almost 40% of the ballots cast in the Democratic primary were mail ballots (Board of Elections election results archive 2020). In the 2020 General Election, 1.7 million of the 8.6 million votes were cast by mail, and there were more than 2 million early votes.

In 2021, COVID-19 was continued as a cause for using absentee ballots for the primaries and general elections. In the meantime, in the continued belief that voting by mail offered opportunities for increased participation in elections, the Legislature had created a Constitutional amendment that NYS voters had to vote on that November. It would allow generalized voting by mail without the need for cause. However, It was defeated statewide. Only about 3.4 million New Yorkers voted on the ballot measure, a far cry from the 8.6 million who voted in the Presidential election, and over 400,000 voters left the ballot measure blank when they voted!

In 2022, the Legislature continued to allow COVID-19 as an excuse to apply for an absentee ballot, but in the general election, mail ballots had reverted to only 7% of the total in New York City, as voters used early voting or in-person voting on Election Day.

In 2023, the Legislature was considering extending the COVID cause for absentee ballot voting again, but several other states with Constitutions similar to New York’s had passed general vote-by-mail statutes using other legislative means, and courts in Pennsylvania and Massachusetts had upheld those legislative actions.

I co-authored an article with retired CUNY Professor Deborah Franzblau in the Gotham Gazette suggesting New York try this tack to achieve general voting by mail. Another section of the State Constitution, Article Two, Section 7, offered an alternative:

Article II, Section 7: Manner of voting; identification of voters
All elections by the citizens, except for such town officers as may by law be directed to be otherwise chosen, shall be by ballot, or by such other method as may be prescribed by law, provided that secrecy in voting be preserved…

Using this Section of the Constitution, New York enacted early voting in 2019. The Legislature, of course, recognized that Pennysvania had used a Constitutional provision similar to the one cited above, when its Supreme Court upheld general voting by mail.

On June 6, 2023, the State Senate passed a bill authorizing early voting by mail and the Assembly followed through and passed the bill on June 9^th. The bill permits applications for early voting mail ballots until ten days before the Election, and they can be counted as long as they are posted by Election Day and received within seven days of the election. The bills were sponsored by Senator Gianaris (D – Queens) and by Assemblywoman Reyes (D – Bronx).

The bills were literally introduced and passed within the span of a few weeks. Governor Hochul has not yet signed it. Should she do so, which I hope she does, it will surely face legal challenges that it violates the absentee ballot for cause section of the Constitution.

NEW CONGRESSIONAL LINES AND VOTING BY MAIL WILL LIKELY MEET IN THE NEW YORK COURT OF APPEALS

The redistricting case in which Governor Hochul intervened, (Hoffman v. New York State Independent Redistricting Commission, et al.), was heard by the New York State Appellate Division, Third Department on June 8^th. Whether the Governor and her allies win, or the defendants, who include the Republicans on the Independent Redistricting Commission (who want the existing lines to stay intact) win, the loser will appeal to the New York Court of Appeals.

The composition of the New York State Court of Appeals has changed, however, since the Court’s 4-3 decision rejecting the Legislature’s lines for both process and partisan gerrymandering reasons.

Chief Judge Janet DeFiore, who wrote the majority opinion in the Court’s decision, left the Court several months after the decision. In April, during the legislative session, the Governor nominated Rowan Wilson, who had been serving as an Associate Judge on the Court, to be Chief Judge, and Caitlin J. Halligan, to serve as an Associate Judge. Judge Wilson had been one of the dissenters in the redistricting case, supporting the position of the minority that the Legislature should be given another chance to draw the maps. Ms. Halligan was not on the Court at the time. The State Senate confirmed the two nominees in short order.

The new Court would have to order the restart of the redistricting process, and then ultimately rule on the outcome of the Independent Districting Commission’s actions and the Legislature’s response to them, including the drawing of new maps. Assuming that the positions on the redistricting case of Judge Wilson and the other two dissenters don’t change, Judge Halligan’s position could swing the court the other way, and ultimately support the Legislature drawing the maps again, as long as they followed the guidelines in the Constitution and laws for fair districts.

This could be a drawn out process heading into 2024, and it’s anybody’s guess if and when the process reaches the Legislature and any subsequent appeal of its actions. This new Court will also rule on the validity of the bill to establish early voting by mail, assuming the Governor signs that bill, as well as the new venue bill for hearing Constitutional election cases, assuming the Governor signs that bill too.

ANOTHER CONGRESSIONAL MAP IN 2024?

The four House seats in New York the Democrats lost in 2022 still had majorities of their voters support Joe Biden for President over Donald Trump in 2020. But the lower midterm turnout, a strong Republican gubernatorial candidate at the top of that party’s ticket, and the departure of the Democratic incumbents in three of the four districts, contributed to the defeats. In 2024, with higher turnout and good candidates, there is no reason to think the Democrats wouldn’t be highly competitive to win some, or even all, of the districts back.

The Democrats in the Legislature could easily find themselves in a position next year, where the Independent Districting Commission has deadlocked again, or made minimal changes to the districts that do not look appealing to Democratic chances. The new Court of Appeals will still give tough scrutiny to an overtly partisan new map written by the Democrats and reject it.

The legally safest route for any change is to improve minority voting opportunities in the four districts in a geographically coherent manner compatible with communities of interest in those districts. This might mean only small improvements in Democrats’ chances compared to the current districts, but they would be changes pursuant to commonly understood Voting Rights protections for Black, Hispanic, and Asian constituencies.