After More Than Two Years, New York Will Finally Get New Maps

In a highly consequential case for control of the U.S. House of Representatives, New York’s highest court ruled that the state’s Independent Redistricting Commission (IRC) must redraw its congressional map in time for a new map to be used in the crucial 2024 elections.

The decision stems from a lawsuit filed last year on behalf of voters arguing that the IRC failed to complete its mandatory redistricting duties when the commission deadlocked in January 2022. A 2014 voter-approved constitutional amendment establishing the IRC stipulated that if the Legislature rejects two sets of maps from the commission, the Legislature then has the opportunity to draw the map.

Following the release of 2020 census data, the commission was unable to agree on new maps for the state. Democrats submitted one proposal and Republicans submitted another, neither of which the states independent commission accepted. Republicans on the IRC, fearful of a Legislature-drawn map, then recklessly refused to meet, prompting a legal filing asking that the commission be forced to fulfill its constitutional duty and draw new maps.

After a trial court dismissed the case, the petitioners appealed to a New York appellate court, which ordered the IRC to redraw the state’s congressional map, ruling that “[t]he IRC had an indisputable duty under the NY Constitution to submit a second set of maps upon the rejection of its first set” and that “It is undisputed that the IRC failed to perform this duty.”  

Republican intervenors and members of the IRC appealed the decision to the New York Court of Appeals (the state’s highest court), which this week sided with New York voters who filed the lawsuit and upheld the lower court’s order. The opinion, which read that “the IRC failed to discharge its constitutional duty. That dereliction is undisputed,” and that “[t]here is no reason the Constitution should be disregarded,” likely finally brings the start of the end to an arduous and needlessly drawn out redistricting process.

The IRC has until Feb. 28, 2024 to submit a new congressional map to the Legislature. 

The 5th Circuit Strikes Again, This Time in Galveston County

Last week, the ultra-conservative 5th U.S. Circuit Court of Appeals paused a lower court order that required Galveston County, Texas to implement commissioner court districts that comply with the Voting Rights Act. The Commissioners’ Court is the county’s legislative body.

Two rulings, one by a Trump-appointed district judge and another by a three-judge 5th Circuit panel, had previously made clear what the U.S. Department of Justice, voters and civil rights organizations had argued: the county’s commissioner court map diluted Black and Latino voting power, violating Section 2 of the Voting Rights Act. The lawsuit that led to the ruling stemmed from a decision by the county to eliminate its lone, long-standing majority-minority district — composed of a coalition of Black and Latino voters.

But the panel decision had a caveat — it asked the entire 5th Circuit to overturn precedent allowing for minority-coalitions to be considered when approaching Section 2 vote dilution claims, the same precedent that had precipitated their own decision. The 5th Circuit followed suit on Nov. 28, 2023 agreeing to re-hear the case en banc (the entire circuit) the week of May 13, 2024, nearly two months after the March 5, 2024 primary. 

While the en banc request was being considered, the 5th Circuit had maintained, and then lifted, a pause on the redraw. Since that pause was lifted, Galveston County had been forced to enact a compliant map. However, the county filed a renewed pause request, and that request was granted last week in an 11-6 ruling. 

The ruling hinged on the often-dubiously exploited Purcell principle, which prohibits changes to maps or voting rules too close to an election. No actual time period stems from Purcell, and as a result, courts can stretch “too close” any way they see convenient. The 5th Circuit did just that, ruling that it “​​is far too late for a federal court to tinker with the machinery of a state election and to displace the [county’s] Original Map.”

The majority also held that Galveston County “has shown a likelihood of success” in arguing that minority-coalition Voting Rights Act districts are impermissible. In a scathing dissent, Judge Stephen Higginson, an Obama appointee, noted that “the majority’s stay order offers no rebuttal—factual or legal—of the district court’s 150-page opinion entered with firsthand benefit of an evidentiary hearing that lasted 10 days,” and argued that minority-coalition precedent is “settled law.” 

The saga came to an end when the Supreme Court, in a 6-3 order, denied the plaintiffs’ emergency request to unpause the 5th Circuit’s ruling, thereby leaving the illegal districts in place for next year’s elections.

Republicans Are Coming Together To Destroy Section 2

Galveston County isn’t the only area seeing 5th Circuit movement. Earlier this month, Louisiana Republicans asked the court to rehear a case challenging the state’s congressional map, and more specifically, are challenging part of a Nov. 5 ruling from the 5th Circuit that affirmed the ability of private parties to bring lawsuits under Section 2 of the Voting Rights Act, a concept known as a private right of action.

State Republicans are asking the court to reconsider this concept, just a month after the court affirmed it, because of a landmark and devastating decision that the 8th U.S. Circuit Court of Appeals handed down on Nov 20. The 8th Circuit ruling, which applies to the seven states under its jurisdiction, held that there is no private right of action under Section 2 — meaning only the U.S. Department of Justice, not individuals or organizations, can sue under the key Voting Rights Act section.

On the heels of the catastrophic decision, Louisiana Republicans are now arguing that the conflicting opinions between the 5th and 8th circuits require reconsideration of Section 2 precedent. “The result of the circuit split is an untenable scenario where a VRA claim by private litigatns [sic] can proceed in Louisiana but not in neighboring Arkansas,” they wrote. 

Private litigants’ inability to file lawsuits under Section 2 would be devastating. Over the past 40 years, there have been at least 182 successful Section 2 cases, and of those 182 cases, only 15 were brought solely by the U.S. attorney general, and only three active cases have been brought by Attorney General Merrick Garland since 2021.

Though such an approach is extremely radical, dangerous and unprecedented, Republican attorneys general nationwide have coalesced around Louisiana’s argument. An amicus brief was filed in support of Louisiana Republicans by 13 attorneys general, flagrantly claiming that “Section 2 contains no express private right of action. And the VRA’s structure confirms that the provision creates no implied private right of action either.” 

The brief similarly rests on the 8th’s Circuit’s decision, which was also supported by numerous Republican attorneys general. In total, 21 Republican attorneys general are advocating for the destruction of a private right of action. 

If the 5th Circuit were to follow the 8th Circuit’s lead, voters in Mississippi, Louisiana and Texas would similarly be without legal recourse for maps that dilute minority voters’ voting power. Currently, there remains established precedent for a private right of action under Section 2 of the Voting Rights Act in the 5th, 6th and 11th U.S. Circuit Courts of Appeals. 

“Extraordinary Request” Sends a Historic Trump Case to SCOTUS

One of the most consequential criminal cases in U.S. political history made its way to the nation’s highest court this week after special counsel Jack Smith asked the Supreme Court for immediate clarity on whether Trump could be prosecuted for his election subversion attempts following the 2020 election.

At the center of Smith’s filing for a writ of certiorari — a request that the Supreme Court review a lower court case — is whether or not a “former President is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin.”

Trump was indicted in August by a federal grand jury on four charges including conspiracy to defraud the United States and obstruction of, and attempt to obstruct, an official proceeding.

Judge Tanya Chutkan, who is overseeing Trump's Jan. 6 indictment case, ruled last week that Trump does not have immunity, a decision the former president has appealed. Smith’s decision to go to the Supreme Court signals a desire to have the questions settled once and for all, as well as an interest in maintaining a speedy process.

Smith acknowledged the weight of the move, writing in a filing that the request for immediate review is an “extraordinary request” in an “extraordinary case.” He added that the charges “implicate a central tenet of our democracy” and that the case’s broad public interest requires an “immediate resolution of the immunity question to permit the trial to occur on an appropriate timetable.” 

While no precedent supports Trump’s claim of immunity, the question has never been settled by the Supreme Court. Trial in the case is scheduled for March 4, 2024, and Trump has pleaded not guilty.

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We are listening to 5-4’s fantastic podcast episode on felony disenfranchisement, an often overlooked issue that guest author DeAnna Hoskins, president and CEO of JustLeadershipUSA, also wrote about this morning.

A new episode of Defending Democracy dropped today! Marc and Paige discuss the 14th Amendment and how it could impact Trump’s eligibility for the presidency. Listen on Apple, Spotify or wherever you get your podcasts or enjoy it in newly available video form on YouTube.