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 1st or as soon as practicable thereafter but no later than January 15th 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 28th, 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 28th 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.
NEW YORK CONGRESSIONAL REDISTRICTING LITIGATION TRACKER 
