On December 12, 2023, the New York State Court of Appeals, New York’s highest court, ruled that the State’s Congressional district maps set in 2022 must be redrawn pursuant to a process that broke down that year, but remains obligated to be completed pursuant to the State’s Constitution and laws. Chief Judge Rowan Wilson stated the ruling succinctly in the opening paragraph of the decision:
“In 2014, the voters of New York amended our Constitution to provide that legislative districts be drawn by an Independent Redistricting Commission (IRC). The Constitution demands that process, not districts drawn by courts. Nevertheless, the IRC failed to discharge its constitutional duty. That dereliction is undisputed. The Appellate Division concluded that the IRC can be compelled to reconvene to fulfill that duty; we agree. There is no reason the Constitution should be disregarded. “
Changing New York’s Congressional maps is politically momentous because the Republican party’s House majority dropped to four seats with the expulsion of George Santos, who represented New York’s Third Congressional district. The Republicans had won their initial five-seat majority in part through New York when they flipped four Democratic seats to Republican in 2022. President Biden had won all four of these seats in 2020, and two more in the State with Republican incumbents at that time, one in Long Island and one in Syracuse. Democrats are hungry to regain these New York seats and victories here are essential to their regaining the majority.
Changing the Congressional district lines again to gain partisan advantage might sound appealing, but the Democrats would be smart to just stand their ground and fight it out on the existing lines, rather than risk what happened in 2022 happening again.
The 2022 Redistricting Debacle
The 2022 elections in these seats in New York were a debacle for the Democrats; I wrote about the run-up to the debacle in my blog. The Independent Redistricting Commission deadlocked, the Legislature took over the process and adopted its own maps. Republicans sued and the New York Court of Appeals ruled 4-3 the Legislature’s lines were a partisan gerrymander prohibited by the New York Constitution and enabling statutes and ordered a court-appointed special master to draw Congressional maps different than those written by the Legislature. Aided by an unusually strong Republican candidate for Governor, Lee Zeldin, poor Democratic turnout in the off-year, and the departure of three of the four Democratic incumbents from the suburban seats around New York City, the Republicans flipped the seats.
What Happens Now With the New Redistricting Mandate?
If the Commission again deadlocks, or the Legislature rejects the Commission’s lines and draws its own and they are once again thrown out by the Court as too partisan, the Democrats could enter 2024 with another political fiasco on their hands. Democrats cannot afford a repeat of that torture.
One element of the dynamic has changed; the composition of the Court of Appeals. The Chief Judge in 2022, Janet Fiore, who helped write the majority opinion that rejected the Legislature’s lines, retired later that year and was replaced by Judge Rowan Wilson, who was among the 3 dissenters who supported the Legislature’s lines in 2022 and wrote the majority opinion ordering the IRC to reconvene. A new appointee, Courtney Halligan, was appointed as a seventh Associate Justice to the Court of Appeals and did not participate in the 2022 decision. She is a respected high-level litigator who served as the solicitor-general in the New York Attorney General’s office but does not come from an intensely partisan background. No matter; any new lines written by the Legislature that alter the districts in Democrats’ favor will run a gauntlet of intense litigation and scrutiny and are far from guaranteed to be approved by the new Court.
Time is of the Essence
The New York State Independent Redistricting Commission, a bipartisan entity with equal numbers of Democrats and Republicans, has until February 28, 2024, to draw new lines. If it makes no decision until then, it will run into conflict with New York’s normal political calendar, which starts with petitioning to get on the ballot on February 27, 2024. Party primaries would normally be occurring in June 2024; delays in decisions about the Congressional lines, resulting from action or inaction from the IRC or the Legislature, or litigation compelling alteration of the lines, could compel splitting off the Congressional primaries from those of the State Legislature and other offices. Delays would act to the detriment of the Democrats, since the Democratic candidates for the House of Representatives would then not be chosen until August primaries, giving their candidates less time to campaign and voters to know who they are.
A delay in the start of petitioning for the Congressional districts looks nearly inevitable unless the IRC makes an early decision, and its decision is affirmed by the Legislature with little to no change with enough time to allow local Boards of Elections to produce new maps and new election districts.
Democrats Could Win With Existing Lines If They Improve Their Dismal 2022 Turnout
In fact, the Democrats have strong chances to win back these districts and avoid the political and legal thicket associated with the Legislature drawing lines to favor the Democrats, even if Congressional primaries get delayed until August. The Democrats could just decide to stand their ground on the existing Congressional lines and just go all out to win the districts. An analysis of the vote in the 2022 midterms in the competitive districts in New York I cited in my article about that election (supra) showed poor turnout among Democrats to be a major factor in their losses :
Nate Cohn, the New York Times‘ chief political analyst, pointed to an Albany Times-Union analysis of the vote across the State. This analysis showed that 63% of Republican and Conservative Party enrolled voters voted in the 2022 General election, compared to 47% of Democrats, 37% of unaffiliated voters, and 45% of other voters (most of whom are former members of the Independence Party). The Republican turnouts were even higher in the competitive districts:
| CongDis. | OnCDline | Dem+% | Rep+% | UnAff+% | Other |
| 3 | 271,000 | 108,000(51%) | 96,572(64%) | 61,000(41%) | ? |
| 4 | 271,000 | 114,000(50%) | 99,000(64%) | 52,000(40%) | ? |
| 17 | 285,000 | 124,000(59%) | 86,000(66%) | 61,000(46%) | ? |
| 18 | 267,000 | 102,000(54%) | 86,000(64%) | 55,000(42%) | ? |
| 19 | 287,000 | 111,000(62%) | 108,000(67%) | 51,000(43%) | ? |
| 22 | 268,000 | 95,000(56%) | 101,000(67%) | 55,000(44%) | ? |
I rounded off the numbers taken from the Times-Union analysis; the OnCDLine column is the total votes on the Congressional lines for the individual matchups. The Other? column reflects the fact that about 5% of the enrollment consists of the sum of Conservative and Independence parties, the Working Families party and others.
The poor turnouts for Democrats were most pronounced in the two Long Island Congressional districts. Only 51% of Democrats voted in the midterm election in the 3rd Congressional district in 2022, the one that saw George Santos elected, compared to 64% of Republicans. The Democrats have now nominated Tom Suozzi, the previous incumbent, for the special election to take place on Feb. 13, 2024. The Republicans have nominated Mazi Pilip, a Nassau County legislator. The election will take place on the existing lines and is likely to be competitive. Should Suozzi win this special election, he would have a strong chance to win the general election in November.
The 4th Congressional district, on the south shore of Long Island, had a similar turnout problem. There, only 50% of Democrats turned out to vote in 2022, compared to 64% of Republicans. The 4th district is heavily minority, about 47%, and Biden won this district in 2020 by 14 points. Once again, an intense and concerted effort to get Democrats out to vote offers the potential for victory. The Democrats have a redistricting option that could convert the district into a majority-minority district by heading east into Queens, but it would be a minority coalition district, a combined Black-Hispanic-Asian majority, an issue already in litigation in the Federal courts in the South as to whether it is a valid minority opportunity district. The Democrats already have a potentially strong candidate, three-term State Senator Kevin Thomas of Nassau County (who might still have to win a primary), who has announced for the 4th district. Getting organized to help him might be a better option than risking getting dragged into Federal court.
The Hudson Valley Congressional districts, the 17th, 18th, and 19th, were among the most competitive in the nation in 2022 and the Republicans won two out of three. In those districts the Democratic turnout was stronger than in Long Island and much closer to, but still below, the Republican turnout. In these districts the Democrats must get their vote out and still persuade moderates and fence-sitters that the common good remains with the Democrats and that the Republican incumbents have aligned themselves with the MAGA extremists. Dave Wasserman of the Cook Political Report suggested the Democrats could bring White Plains, a heavily Democratic area in Westchester County that is majority minority, from the sixteenth Congressional district to the Seventeenth and convert the district from Biden+10 to Biden+16, in a move to defeat Republican incumbent Mike Lawler and help his likely opponent, former Congressmember Mondaire Jones. The problem there is that the adjacent district, the 18th, was won by Pat Ryan, a Democrat, by less than two points in 2022, and he might have to absorb conservative pieces of Lawler’s district to offset Lawler’s population loss to Westchester County. That could be a no win situation. And it would, of course, look like partisan gerrymandering.
The House Democrats have the benefit of polling, a benefit I don’t have, in these districts that gives them current insight into their chances, and there may be configurations that expand minority voting opportunities that could be impervious to legal challenge, but those changes might be minor. The natural increase in voting participation in the Presidential election among those Democrats who didn’t vote in 2022 but voted in 2020 remains among the strongest arguments to avoid another redistricting debacle.
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This very interesting analysis doesn’t take into account the elephant in the room, or in this case the donkey in the room: the lack of leadership from the state Democratic Party, and the concomitant lack of leadership and lack of interest in GOTV in county Committees. I heard Chairman Jay Jacobs interviewed not long ago, and far from acknowledging mistakes made, all he offered was defensiveness and evasion. Without a new attitude from party leaders, one that recognizes that changes are desperately needed, the New York Democratic Party should expect similar results to 2022.