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New York Democrats Make Last-Ditch Bid to Save New Congressional Maps

This story was originally published in The New York Times.

New York Democrats made a last-ditch appeal to the state’s highest court on Tuesday to overturn a pair of lower-court rulings and salvage newly drawn congressional districts that overwhelmingly favor their party.

In oral arguments before the New York State Court of Appeals, lawyers for the governor and top legislative leaders said that Republicans challenging the lines had fallen short of proving that the state’s new congressional map violated a state ban on gerrymandering.

But the arguments turned tense at times, especially as several members of the seven-judge panel scrutinized the constitutionality of the mapmaking process itself.

Voters created a new redistricting commission in 2014 to help wean politics from the mapmaking process, at the same time that they outlawed gerrymandering. But after the commission’s efforts broke down this winter, the Democratic-led Legislature quickly shunted aside the commission’s proposals in favor of more politically favorable maps.

“Isn’t that evidence of a purpose to gerrymander?” Judge Michael Garcia asked lawyers for the Democrats.

The court’s decision, expected as soon as Wednesday, could have far-reaching implications for New York and the rest of the country.

A bare-knuckle political fight over representation and power lies beneath the complex legal arguments. National Democrats are relying on New York to help offset Republican redistricting gains in other states. Without it, their path to maintaining the House of Representatives in Washington could become considerably more difficult.

The congressional map, approved by Democratic supermajorities in February, threatens to cut the state’s eight-member Republican House delegation in half and creates three new Democratic friendly seats on Long Island, Staten Island and in central New York. The map, which favors Democrats 22 to four, shores up several swing districts that Democrats hold now with more left-leaning voters.

But an Appeals Court ruling could also determine the future of the 2014 reforms to the redistricting process, which takes place once a decade. If the court upholds the maps and the process behind them, its ruling could effectively neuter the redistricting commission after just one cycle of activity and would set a high bar to prove maps are partisan gerrymanders.

“It’s a total disregard for the Constitution and what the voters chose in 2014 as a process to try to improve the way the lines were drawn,” Laura Ladd Bierman, executive director of the nonpartisan League of Women Voters of New York State, said of the Legislature’s actions. “That’s what just makes me so frustrated: They just seem to have no regard for what the public wanted.”

Ms. Bierman’s group has submitted an amicus brief in the case siding with Republicans to argue that the courts should strike down the maps and draw new ones using a special master.

The Court of Appeals judges, all of whom were appointed by Democratic governors, appeared to be wrestling with how to balance the interests of the voters, the longstanding right of the Legislature to set district lines and more pragmatic questions about how and when this year’s critical midterm elections should proceed.

The court has traditionally shown deference to state lawmakers to set boundaries that they feel are appropriate. But the questions this time were particularly thorny because the case — Harkenrider v. Hochul — is the first time that the courts have tested the 2014 constitutional changes.

The challengers, New York voters backed by national Republicans, have argued that the mapmaking power should have gone directly to the courts, not the Legislature, when the commission collapsed this winter. Instead, they contend, Democrats hijacked the process and drew lines expertly devised to knock out Republicans.

The commission violated the law, the Republican lawyer, Misha Tseytlin, said, “but then the Legislature attempted to take a step that it had no legal authority to take.”

Democrats rejected both claims. They maintain that the commission was an advisory body whose maps required lawmakers’ approval to become law. And they defended their congressional map as a good-faith effort to balance competing requirements to preserve the cores of existing districts and communities of interest — which includes racial and ethnic groups — while achieving maximum compactness and adjusting for population shifts that generally benefit Democrats.

“Maybe the petitioners would have drawn the map a little differently, maybe someone from a think tank or the editorial board of a newspaper would have drawn these maps differently, or somebody on Twitter,” said Craig R. Bucki, a lawyer for State Assembly Democrats. “But the fact is they are not the Legislature, and they are not elected by the people, and that’s why all these maps should be upheld.”

The proceeding before the Court of Appeals was guided by two earlier lower-court decisions that have broadly sided with Republicans.

A State Supreme Court justice in rural Steuben County issued an expansive ruling in late March that found the congressional maps were not only impermissibly partisan but the product of a mapmaking process that had been completely tainted. The justice, Patrick F. McAllister, ordered lawmakers to replace the congressional, State Senate and State Assembly maps with fresh “bipartisanly supported maps” — a new standard that does not appear in the State Constitution.

Last week, a midlevel appeals court in Rochester significantly narrowed that decision. The divided five-judge panel concluded that the line drawing process itself had in fact been legal, allowing the Senate and Assembly maps to stand, and it tossed out Justice McAllister’s new bipartisanship requirement.

But the judges ultimately agreed that the congressional lines were unconstitutionally skewed, citing the partisan nature of the mapmaking process and a set of computer simulations produced by Republicans that suggested the Democratic map was bluer than it ought to be.

The litigation has attracted significant interest in New York and across the country, where state courts have begun taking a more active role in policing partisan gerrymandering by both parties.

Nicholas Stephanopoulos, a Harvard law professor who studies redistricting, said New York’s map was not “remotely” as skewed as maps adopted by Republicans in Florida or Democrats in Illinois. And he cautioned that striking down New York’s maps while allowing other Republican-drawn gerrymanders to stand across the country would only further bias the national map toward one party.

Still, Mr. Stephanopoulos said the litigation in New York and other states this year offered some reason for optimism in a decades-long fight by public interest groups to curb the influence of gerrymandering.

“The fact that both sides are now willing to bring partisan gerrymandering claims, and state courts have struck down both Republican and Democratic maps, I think that is encouraging in terms of sweeping national reform in the future,” he said.