Litigation continues over whether the state's congressional map should be redrawn following a court ruling declaring the 2022 map drawn by the legislature unconstitutional. The 2022 mid-term elections were held under a revised map drawn by a court-designated special master. In June 2022, a group of Democratic voters filed a lawsuit (Hoffmann et al. v. Independent Redistricting Commission) in Albany County State Supreme Court requesting that the state's independent Redistricting Commission (IRC) pick up where it left off and to submit a new congressional map to the state legislature, but that effort was rejected by the court. Subsequently, the mid-level Appellate Division reversed the lower court in 2023 and directed the IRC to go back to work. That decision was stayed by the Court of Appeals and set a hearing date for Wednesday, November 15 at 1:00 PM in Buffalo. In the meantime, however, the Court of Appeals is permitting the IRC to continue to operate. Case summaries and updates are provided by Jeff Wice, Adjunct Professor of Law and Senior Fellow and Piper Benedict, a student fellow, at the New York Census and Redistricting Institute (New York Law School).

Hoffmann v. New York State Independent Redistricting Commission

THE PARTIES

Democrats

Petitioners: Anthony S. Hoffman and others are a group of Democratic voters who filed this challenge last year seeking to compel the IRC to submit to the legislature a second congressional map.

Jenkins Respondents: IRC Chairperson Ken Jenkins along with IRC Commissioners Ivelisse Cuevas-Molina and Elaine Frazier are Democratic-appointed commissioners who support the petitioners' position.

Republicans

Brady Respondents: IRC Commissioners Ross Brady, John Conway III, Lisa Harris, Charles Nesbitt, and Willis H. Stephens are Republican-appointed commissioners who appealed the Appellate Division's order.

Harkenrider Intervenors: Tim Harkenrider et al are Republican voters who filed the original Harkenrider v. Hochul case last year resulting in the appointment of a special master who redrew the state senate and congressional district maps. They are intervenors, meaning they are not original parties to the case but have joined as they have an interest in the outcome. They support the Brady Respondents' position and also appealed the Appellate Division's order.

Trial Court

On June 28, 2022, a group of New York voters filed a Petition for an Order and Judgment Pursuant to Article 78 against the New York Independent Redistricting Commission (IRC) seeking to compel the IRC to submit to the legislature a second set of congressional and state legislative redistricting plans in order to ensure a lawful plan would be in place following the 2022 elections. The petitioners argued that the IRC failed to fulfill its constitutional duty under the New York Constitution.

On September 12, 2022, Judge Peter Lynch released a decision dismissing the petitioners' argument that aimed to compel the IRC to act. In the decision, Judge Lynch stated that there is no authority for the IRC to issue a second redistricting plan after February 28, 2022, in advance of the federal census in 2030. The judgment of the court also stated that there is no enforceable remedy available to the petitioners to limit the 2022 Congressional redistricting map to the 2022 election, nor to compel the IRC to act, thereby dismissing the petitioners' action.

On October 17, 2022, the petitioners appealed this decision to the Appellate Division of the Supreme Court, Third Judicial Department.

On July 13, 2023, the Appellate Division issued its decision ruling in favor of the petitioners (Democratic voters). Presiding Justice Elizabeth Garry penned the decision and Justices Molly Reynolds Fitzgerald and Eddie McShan joined. Justice Stan Pritzker dissented, joined by Justice John Egan Jr.

The decision moved several processes forward with no clear end date before 2024 primary petitioning begins (by early March 2024). The GOP intervenors and GOP Independent Commission members have appealed this decision to the Court of Appeals. The IRC was directed to go back to work and develop a second congressional map. If the appeal fails, the legislature will also need to schedule a session to address redistricting later this year or early next year, and with anticipated public hearings, commission action, and the appeal, the late Summer to Fall months promised to be busy with redistricting activity.

The appellate court rejected the GOP Respondents’ contention that the proceeding was untimely. The court found that the claim accrued on March 31, 2022, when New York Supreme Court judge McAllister determined that the 2021 redistricting legislation was unconstitutional. The court explained that the petitioners began this proceeding on June 28, 2022, which was well within the statute of limitations.

Next, the court acknowledged that this case puts the court in the “uncomfortable position” of determining what the Court of Appeals in Harkenrider meant by its silence regarding how long it intended for the judicial remedy (map drawn by the special master) to remain in place—only for the 2022 elections or for the remainder of the decade. The court further emphasized that, in making this determination, it “must be guided by the overarching policy of the constitutional provision: broad engagement in a transparent redistricting process.”

On this question of duration, the court refused to conclude that the Harkenrider decision precludes the petitioners’ requested relief. The court pointed to the state constitution’s “limiting language in the provision that grants the courts the power to intervene” in the redistricting process: "[t]he process for redistricting…established by [the redistricting amendments] shall govern redistricting…except to the extent that a court is required to order the adoption of, or changes to, a redistricting plan as a remedy for a violation of law." Because the Court of Appeals was not “required” to alter the redistricting process beyond the imminent issue at the time (the 2022 elections), the court declined to determine that the Court of Appeals intended to create further repercussions on the process than was strictly “required.”

Next, the court held that under Article III, §4(b) of the state constitution, the IRC had an “indisputable” and “mandatory” duty to submit a second set of maps after the rejection of the first set, and it is undisputed that the IRC failed to carry out this duty. Furthermore, the court agreed with the petitioners that Harkenrider did not remedy this failure as it only addressed the “Legislature’s unconstitutional reaction to the IRC’s failure to submit maps” and not the IRC’s failure itself.

Based on the above reasons, the court held that the petitioners “demonstrated a clear legal right to the relief sought.” The court emphasized that this decision “honors the constitutional enactments as the means of providing a robust, fair and equitable procedure for the determination of voting districts in New York.”

The decision concluded by stating that “the right to participate in the democratic process is the most essential right in our system of governance. The procedures governing the redistricting process, all too easily abused by those who would seek to minimize the voters' voice and entrench themselves in the seats of power, must be guarded as jealously as the right to vote itself; in granting this petition, we return the matter to its constitutional design. Accordingly, we direct the IRC to commence its duties forthwith.”

Implications of Appellate Division Decision

Unlike the ruling in the State Assembly case, Nichols v. Hochul, where the trial court sent the IRC back to work with an updated set of deadlines mirroring the constitutional dates, the Appellate Division decision in the congressional redistricting case offers no such guidance.

New York’s 2014 Redistricting Amendment set forth a new constitutional process where the IRC and the legislature proceed through the challenging responsibility of redistricting the state’s senate, assembly, and congressional districts every ten years through Commission map submissions to the legislature and legislative approval.

The Plaintiffs in the congressional redistricting case, Hoffmann v. Independent Redistricting Commission, asked the court to order the IRC to fulfill part of its constitutional duty by sending a second submission to the legislature for consideration as required by the State Constitution’s Article III, Section 4(b) in the event that the legislature fails to approve the first submission or the governor vetoes it and the legislature fails to override the veto. Last year, the legislature rejected the first set of maps.

Section 4(b) sets forth requirements for both submissions. The section begins with “the [IRC]…shall prepare a redistricting plan to establish senate, assembly, and congressional districts every ten years commencing in [2021], and shall submit to the legislature such plan and the implementing legislation therefor on or before January 1^st or as soon as practicable thereafter but no later than January 15^th in the year ending in two beginning in [2022].” This language provides the requirements for the first submission.

For the second submission, if one is needed due to the legislature failing to approve the first plan, Section 4(b) provides that the legislature must notify the IRC and “[w]ithin fifteen days of such notification and in no case later than February 28^th, the [IRC] shall prepare and submit to the legislature a second redistricting plan…”

Because we are now starting at the second submission stage, and the fifteen days as well as February 28^th following the legislature notifying the IRC have long passed, it is unclear what timeline the IRC must follow as it returns to work on the congressional lines.

What is clear, however, is that a map must be in place by early March 2024 for primary petitioning to get underway. If a new map is to be enacted if the Court of Appeals affirms the Appellate Division decision, a new map should be approved by the state legislature by early February 2024. If the Court of Appeals reverses the Appellate Division decision, the 2022 map drawn by the Special Master should remain in place.

On August 8^th, the New York Court of Appeals issued a letter to the parties with the briefing schedule for the appeal. The appeal will proceed in the normal course of briefing and argument and mentions that the petitioners’ calendar preference request and the Intervenors’ opposition was noted.

Briefing Schedule

• Appellants’ briefs and amicus briefs supporting reversal due September 18, 2023
• Respondents’ (Democratic voters) briefs and amicus briefs supporting affirmance due October 23, 2023
• Appellants may file reply briefs by November 6, 2023

On September 19, 2023, in a technical win for Republicans and procedural win for the Democrats, the Court of Appeals announced that there is an automatic stay of the Appellate Division order that directed the IRC to “commence its duties forthwith” (i.e., to send a second map submission to the legislature) but clarified that the IRC is not prohibited from taking “any actions.” The court’s order “stayed” or paused the IRC from taking official action, “but the stay does not prohibit the IRC or its members from taking any actions.”

State Court of Appeals Judge Caitlin Halligan has recused herself from participating in hearing the N.Y. congressional redistricting case appeal due to her relationship with one of the attorneys in the case. She is being replaced by 1^st Department Appellate Division Presiding Judge Dianne Renwick. Judge Renwick was part of a five-judge Appellate Court panel that approved New York County State Supreme Court Judge Lawrence Love’s decision in Nichols v. Hochul to send the state assembly remapping back to the Independent Redistricting Commission and state legislature.

The Court of Appeals will hear the appeal in Buffalo on November 15 at 1:00 PM at the Old County Hall, 92 Franklin Street.

Trial Court

New York Supreme Court, Albany County – No. 904972-22

docket

• Petition (June 28, 2022)
• Petitioners’ memorandum of law in support of petition (June 28, 2022)
• Petitioners’ letter to judge (July 6, 2022)
• Petitioners’ Memorandum of Law in Support of Motion to Amend Petition (July 14, 2022)
• Proposed Amended Verified Petition (July 14, 2022)
• Attorney affirmation of Aaron M. Mukerjee in support of motion for leave to amend petition for authorization of substituted service (July 14, 2022)
• Respondents' letter to judge (July 26, 2022)
• Order granting motion for leave to file amended complaint (Aug. 2, 2022)
• Petitioners' amended verified petition for writ of mandamus
• Petitioners' memorandum of law in support of amended verified petition (Aug. 4, 2022)
• Memorandum of law in support of proposed intervenors' motion for leave to intervene (Aug. 23, 2022)
• Verified answer of respondents David Imamura, Ivelisse Cuevas-Molina, and Elaine Frazier (Aug. 26, 2022)
• Memorandum of law in support of motion to dismiss (Aug. 26, 2022)
• Petitioners' opposition to Harkenrider petitioners' motion to intervene (Aug. 30, 2022)
• Reply memorandum of law in support of proposed intervenors’ motion for leave to intervene (Aug. 31, 2022)
• Order granting motion to intervene (Sept. 2, 2022)
• Harkenrider intervenors’ memorandum of law in support of motion to dismiss (Sept. 2, 2022)
• Petitioners' memorandum of law in opposition to moving respondents' motion to dismiss and in support of order to show cause (Sept. 6, 2022)
• Court notice declining to sign order to show cause for leave to amend the petition (Sept. 6, 2022)
• Petitioners' memorandum of law in opposition to intervenors' motion to dismiss (Sept. 8, 2022)
• Reply memorandum of law in support of intervenors’ motion to dismiss (Sept. 9, 2022)
• Reply memorandum of law in support of motion to dismiss (Sept. 11, 2022)
• Decision and order granting motions to dismiss (Sept. 12, 2022)
• Petitioners' notice of appeal (Oct. 17, 2022)

Appellate Division

New York Supreme Court, Appellate Division, Third Judicial Department – No. CV-22-2265

docket

• Brief for petitioners-appellants (Jan. 20, 2023)
• Respondents' brief Jenkins, Cuevas-Molina, Frazier (Feb. 21, 2023)
• Republican commissioner respondents' brief (March 22, 2023)
• Republican intervenor respondents' brief (March 22, 2023)
• Scottie Coads, Mark Favors and Mark Weisman's amicus brief in support of appellants (March 31, 2023)
• Appellants' reply brief (April 3, 2023)
• NY governor and attorney general's amicus brief in support of petitioners (April 10, 2023)
• Republican IRC commissioners' sur-reply to amicus brief (April 28, 2023)
• Intervenor respondents' sur- reply to amicus brief (April 28, 2023)
• Harkenrider intervenors' letter re: Biden v. Nebraska (July 3, 2023)
• Appellants' letter brief re: Biden v. Nebraska (July 6, 2023)
• Jenkins respondents' letter brief re: Biden v. Nebraska (July 7, 2023)
• Coads, Favors and Weisman amici's letter re: Biden v. Nebraska (July 10, 2023)
• Opinion and Order (July 13, 2023) (corrected Aug. 18, 2023)

Court of Appeals

New York Court of Appeals

docket: type "hoffmann" under party name, click "find"

• Scheduling order (Aug. 8, 2023)
• Petitioners' motion to vacate stay pending appeal (Aug. 11, 2023)
• Democratic IRC commissioners respondents' response to respondents' motion to vacate stay pending appeal (Aug. 21, 2023)
• Intervenor appellants' notice of cross motion for stay (Aug. 21, 2023)
• Republican IRC commissioners' opposition to motion to vacate stay (Aug. 21, 2023)
• Petitioners' opposition to cross motion for stay pending appeal (Sept. 5, 2023)
• Lawyers Democracy Fund's amicus brief in support of intervenors (Sept. 8, 2023)
• League of Women Voters's amicus brief in support of intervenors (Sept. 9, 2023)
• Respondent appellants' brief (Sept. 18, 2023)
• Republican intervenor appellants' brief (Sept. 18, 2023)
• Decision on stay (page 7) (Sept. 19, 2023)
• Mark Favors, Theodore Harris, Mark Weisman amicus brief (Oct. 13, 2023)