On December 12, 2023, New York State’s Court of Appeals decided to throw out the State’s current U.S. House of Representatives district maps.
The New York Daily News labeled the decision ‘a disgrace,’ while the Wall Street Journal termed it a ‘map-making coup.’ Those descriptions are both correct, but to be honest, they still don’t capture the rottenness of the entire sordid process.
As background, the New York State Court of Appeals is the highest state court, while New York’s lowest courts are known as Supreme Courts. There may be an interesting historical reason for this naming convention, but I’ll ascribe it to the standard New York State policy of making everything backward and needlessly confusing.
In any event, here’s a simplified overview of the genesis of this redistricting debacle:
2014 Constitutional Amendment
In 2014, Governor Cuomo and the state legislature proposed a constitutional amendment to establish a redistricting commission. Sounds great, right? Who hasn’t seen the extreme gerrymandered districts and thought them to be an affront to common sense and democracy.
And while the amendment sounds good and allows the Governor and Legislature to portray themselves as non-partisan champions of good governance, in fact, it is pretty much a fake reform.
Unlike some states with an actual independence redistricting process (e.g. California and Iowa), New York’s “independent” commission is anything but. The members of the commission are appointed by the Legislature (the exact people the amendment was purported to remove from the process), and if in the off-chance the “independent” commission produces an actually independent map, the Legislature can still reject any maps it produces.
Even at the time, many people and most newspaper editorials recognized this as a transparent facade designed only to give the pretense of good governance. Blair Horner of NYPIRG put it well when he said,
“So, Proposal 1 [the redistricting amendment] not only is a scheme that seeks to bamboozle the public with the status quo merely masquerading as reform, it actually makes the current situation worse!”
That description could be applied fairly to basically everything that has come out of New York State government in the last 50 years.
Nevertheless, the amendment passed. How and why does it pass when it is so clearly fake reform, and most people who actually looked into the proposal were against it?
Essentially by confusing the voters.
Here is the text that appeared on the ballot which voters were asked to vote on:
The proposed amendment to sections 4 and 5 and addition of new section 5-b to Article 3 of the State Constitution revises the redistricting procedure for state legislative and congressional districts. The proposed amendment establishes a redistricting commission every 10 years beginning in 2020, with two members appointed by each of the four legislative leaders and two members selected by the eight legislative appointees; prohibits legislators and other elected officials from serving as commissioners; establishes principles to be used in creating districts; requires the commission to hold public hearings on proposed redistricting plans; subjects the commission’s redistricting plan to legislative enactment; provides that the legislature may only amend the redistricting plan according to the established principles if the commission’s plan is rejected twice by the legislature; provides for expedited court review of a challenged redistricting plan; and provides for funding and bipartisan staff to work for the commission. Shall the proposed amendment be approved?
Are you still here? Still awake? I think it’s fair to say the intent here was obfuscate the issue, capitalize on the voters’ understandable dislike of gerrymandering, and appear vaguely “reform-ish”.
Contrast the above question that actually appeared on the ballot with alternative language which was proposed at the time:
The proposed amendment to Article 3 of the Constitution would allow New York State’s legislative leaders to appoint a bipartisan commission to establish new state legislative and congressional district lines every 10 years pursuant to state criteria with final approval by the Legislature. Shall the amendment be approved?
Which is clearer? Which is more likely to garner an informed response by the voters reasonably indication of the collective will of the people? Which is less likely to induce narcolepsy resulting in injuries to the voting public?
Unsurprisingly, voters approved the amendment: 57.67% voted in favor of the amendment with 42.33% opposing it. Governor Cuomo and the Legislature are able to present themselves as agents of fairness and good governance. And the foundations of the disgraceful judicial decision that came down last December have been set in place.
Operation of the Constitutional Amendment
The 2022 election cycle was the first time the redistricting process set forth in the 2014 constitutional amendment was to be enacted. And, lo and behold, we have ourselves a convoluted mess where it seems incumbent politicians will be placed back in charge of controlling the redistricting process. But how we got here is instructive.
I recognize that electoral redistricting and appellate litigation are not the most naturally interesting of topics, but they are vitally important in determining the federal and state balance of power, and this entire saga is one of the clearest examples of New York State government’s ingrained corruption.
I’ll pause here to note that when I use the word corruption, I’m using it in its broader and more literal sense. The common conception of corruption is a person coming to a public official and asking them to vote a certain way on an issue in exchange for a briefcase full of cash. That sort of corruption has happened all too often in NYS government but isn’t exclusively what I mean by corruption.
An alternative definition of corruption is “a process by which something, typically a word or expression, is changed from its original use or meaning to one that is regarded as erroneous or debased”. Something more akin to perversion.
So when I say that New York State government or this whole electoral redistricting process is corrupt, I don’t simply mean that influence or votes were purchased in exchange for, say, World Series tickets (one of the reasons Governor Patterson didn’t seek reelection). But instead, I mean that the original intent of the institution or process does not, in any way, achieve the goal for which it was originally established, and further, that it is actually antithetical to those goals.
In the case of the redistricting process, rules and ethics are bent and disregarded to ensure that the voters’ intention of non-partisan and fair electoral districts are not achieved, but rather, that incumbent politicians remain firmly in control of the process and partisan gerrymandered districts result.
In New York State, the purpose of the state government has demonstrably been corrupted from seeking to improve the lives of its citizens. Instead, as perfectly illustrated by this redistricting process, the implicit goal of New York state government has been to benefit incumbent government officials and select special interests.
This corruption is felt most acutely in Upstate because, due to ingrained structural realities, Upstate citizens don’t have the electoral power to change this state of affairs and the special interests which hold power in the halls of the state government support policies which have and are simply decimating Upstate’s people and economy.
But isn’t this obvious or already readily acknowledged? New York State is corrupt, snow is white, and birds can fly? What is groundbreaking here? Why bother?
Well, in some sense, yes it’s obvious. New York State government’s poor performance and corruption are well known. But, I’d argue, if anything is to change, we must do the work to examine the details, identify the parties in play, and truly understand the process by which this corruption predominates.
And that’s what makes this redistricting issue such a perfect example of this particular type of corruption and why it is worth examining. We have here in a nice 10-year package, an example of fake “bi-partisan” reform and blatant rule bending by every branch of state government to ensure the voters’ intention of fair non-partisan elections is roundly defeated.
It is a pattern which emerges in everything New York State touches, whether it be redistricting, education, energy, or healthcare.
It is interesting for the sheer level of corruption and rule bending which occurred to ensure the will of the voters did not win out. It is, by any fair standard, a disgrace. But a disgrace of a sort all too familiar in New York State. Throughout this entire mess, whenever elected officials or certain judges had a chance to act honorably or fairly, they inevitably chose another path.
Below you’ll find a chronology of this redistricting charade beginning with the Independent Redistricting Commission’s (“IRC”) predictable failure. This is a factual recitation of events, and I’ve tried to restrain myself from editorializing.
January 2022 – The 10-member IRC, composed of five Democrats and five Republicans, announces they could not reach a consensus on new lines for the House of Representatives, along with the state Assembly and state Senate. The commission’s failure puts the fate of the redistricting process in the hands of the Legislature.
January 2022 – Days later, the Legislature revealed plans that are blatantly partisan and gerrymandered.
February 2022 – Legislature passes a law confirming the legislature’s partisan drawn lines, and Governor Hochul signs it into law. This law seemingly flies directly in the face of the 2014 constitutional amendment.
March 2023 – A select group of voters file suit claiming these maps are essentially partisan gerrymandering and that they clearly violate the language of the constitutional amendment passed by the voters in 2014.
April 2022 – The appellate court and the Court of Appeals (New York State’s highest court) finds the new partisan maps to be unconstitutional. The Court of Appeals decision was a 4-3 decision. The Court of Appeals assigns a neutral expert to draw new, non-partisan election maps for the 2022 election.
May 2022 – The neutral expert releases new election district maps and they are certified by the Court of Appeals for use in the 2022 election.
June 2022 – In the wake of these new maps, a different set of voters bring a lawsuit stating the IRC acted unconstitutionally, seeking a remedy where the NYS legislature would be empowered to draw new (likely partisan maps)
August 2022 – New York State Court of Appeals Chief Justice, Janet DiFiore, resigns from her position as Chief Justice. Judge Fiore wrote the majority opinion of the April 2022 decision holding the Legislature drawn partisan maps to be unconstitutional.
November 2022 – Federal and New York State elections are conducted along the lines of the new, neutrally drawn maps.
December 2022 – Governor Hochul nominates Hector LaSalle to replace Judge DiFiore as Chief Justice. Many groups on the left object to Judge LaSalle’s nomination on ideological grounds, preferring that one of the existing Court of Appeals Justices who voted in favor of the partisan, gerrymandered maps be elevated to Chief Justice.
February 2023 – Judge LaSalle’s nomination is rejected by the Legislature, the first time this has happened in New York’s history.
April 2023 – Judge Rowan Wilson, who voted in favor of the partisan maps, is nominated by Governor Hochul for Chief Justice. He is swiftly confirmed a week later by the Legislature. Judge Caitlin Halligan is appointed to fill the seventh court seat.
October 2023 – Judge Halligan recuses herself from the second redistricting case citing a “close personal relationship” with one of the attorneys or parties to the case. This recusal is deemed “questionable” at best as it’s speculated that the recusal stemmed from a friendship with an attorney for the League of Women Voters, who was not a party to the case. The New York Daily News states that this sort of recusal is unprecedented.
October 2023 – In an unprecedented move, Chief Justice Wilson appoints Judge Diane Renwick to replace Judge Halligan to preside over the second redistricting case. This is highly unusual as a “replacement judge” is typically only appointed after a case is heard and the participating judges fail to reach a majority. Coincidentally, Judge Renwick (the replacement judge) had previously heard a case where she ruled in favor of state Assembly districts being redrawn aligning with the preferences of the State Legislature.
November 2023 – The Court of Appeals hears the second redistricting case filed back in June 2022. The plaintiffs in this case were seeking to have the neutrally-drawn electoral maps replaced by maps drawn by the IRC and effectively the New York State Legislature.
December 2023 – In a 4-3 opinion written by Chief Judge Wilson, the IRC is ordered to redraw New York’s congressional maps, giving the Legislature another chance to redraw blatantly partisan gerrymandered maps.
Who tossed out the neutral, expertly drawn maps?
This whole sordid mess is a prime example of institutional corruption. It is an exemplary instance of how business is conducted in New York State. But it’s all too easy to shake our heads at “the Court”, “politicians”, or the “system”. While true to a certain extent, it’s ultimately an ineffective cop-out to place blame purely on abstractions or institutions.
We previously examined the “Blue Ribbon Commission” of New York State, tasked with shaping the future of education in the state. Despite concerns about its focus on equity over student achievement, we were disappointed (though not surprised) to find only one of its eight members were from Upstate. Applying a similar approach, we thought it would be interesting to take a look at the backgrounds of the seven members of the Court of Appeals.
This examination reinforces one of our main themes: Upstate lacks significant representation in critical decision-making processes. Analyzing the personal backgrounds of individuals in political structures provides a deeper understanding of their decisions and power dynamics. This method, often termed “realism” in international affairs, is equally effective in domestic politics. It reveals underlying motivations and patterns behind the actions of institutions like courts or legislatures.
Now, let’s move beyond this theoretical introduction and more closely examine the judges of the New York State Court of Appeals, their backgrounds, and specifically, their connections to Upstate.
Chief Judge Rowan Wilson
Background: Grew up in Berkeley, California before attending Harvard for undergrad and law school. Worked in Big Law in Manhattan before becoming a judge.
From Upstate?: No. Berkeley is pretty far from Upstate, last time I checked.
Hon. Jenny Rivera
Background: Born in New York City. Entire professional career has been in public sector in NYC, including clerking for now Supreme Court Justice Sotomayor.
From Upstate?: Nope.
Hon. Madeline Singas
Background: Born in Queens, high school in the Bronx. Education: Barnard, Columbia, then Fordham Law. Worked in Queens and Nassau County DA’s office.
From Upstate?: May have visited briefly at some point in the 90s.
Hon. Shirley Troutman
Background: Born in Georgia but raised in Buffalo. UB undergrad and Albany Law. Worked in Erie County DA’s office and Buffalo City Court.
From Upstate?: Yes.
Hon. Michael Garcia
Background: Born in Brooklyn, but went to school in Upstate (Binghamton undergrad and Albany Law). Then worked at various Federal jobs in NYC before becoming a judge.
From Upstate?: Partial credit for educational background.
Hon. Caitlin Halligan
Background: Born in Ohio, undergrad at Princeton, Georgetown Law. Worked in DC, then New York State Attorney General’s Office, and NYC Big Law.
From Upstate?: Not at all. Actually a pretty tenuous connection to anything in New York State, to be honest.
Hon. Anthony Cannataro
Background: Born in New Jersey. Undergrad at Columbia, then New York Law School. Entire career has been in NYC Law Department, clerking for NYC judges, or presiding as a NYC judge.
From Upstate?: No. Probably thinks anything north of Harlem is Canada.
Among the seven judges on New York’s highest court, only one hails from Upstate, which makes our representation equal to that of Berkeley, California. If we stretch the definition a bit to include educational background, we could argue that 1.3 out of the 7 judges have ties to Upstate, considering Judge Garcia’s academic history. This composition is significant for several reasons. It underscores the limited influence Upstate has in substantial policy-making and decision processes. While there might be a token representation of one or two individuals from Upstate, in reality, this feels more like a superficial gesture rather than meaningful inclusion.
This situation emphasizes a recurring theme: Upstate does not exercise self-governance in a practical sense. Sure, residents can participate in elections, but the outcomes have minimal to no bearing on the state’s actual governance. This issue might be less concerning if New York State were managed effectively, but the objective data suggests otherwise. The lack of representation from Upstate in key decision-making bodies like the state’s highest court is a stark reminder of this governance gap. In sum, Upstate is in the worst of all situations. It doesn’t govern itself, and the people who do govern Upstate do so poorly. This won’t be addressed through incremental bouts of reform or a pet policy or ballot initiative. We’ve seen how the seemingly well-meaning 2014 constitutional amendment failed spectacularly to achieve any of the goals desired by the voters.
The creation of a new state is the structural change necessary for Upstate to reverse its 50-year decline and achieve meaningful political autonomy with effective governance.
