Laura Nahmias, City&State, reports that the “three-judge [federal court] panel in Brooklyn decided today they would not dismiss complaints challenging the constitutionality of the recently enacted New York state legislative redistricting plan.”
Nahmias also reports that “the judges said they still had unanswered questions about whether the plan was in violation of the state and federal constitution in several aspects: the number of Senate seats, in the apportionment of people per district upstate versus downstate, and in potential violations of both sections 2 and 5 of the Voting Rights Act.”
As I have stated in previous postings, I think Perez v Perry (2012) is the prevailing precedent that trumps Larios v Cox (2004). My research reveals that Perez ruling affirms Justice Scalia’s dissenting opinion in Larios. The Senate Majority’s counsel should argue the law citing that Perry v. Perez resolved the tension between Rodriguez v. Pataki (2004) and Larios v. Cox (2004).
Associate Justice Antonin Scalia was of the opinion in Larios that partisan gerrymandering by itself cannot violate the Equal Protection Clause in a way that Courts can police. In Perry v Perez, SCOTUS ruled that the Courts must cede partisan decisions to the elected Legislature in an enacted plan. That would seem to tie the hands of the Eastern District Court.
Otherwise, this Court is laying down a challenge to Perez v. Perry which seems to permit partisan gerrymandering.
Update: After more research, I now think the judges want the Senate Majority to justify the use of widely different population deviations in downstate and upstate districts. If the Senate Majority’s desire was purely partisan and without harmful constitutional and VRA violations, under Perez the plan passes muster.
I found a Stateline article explaining that since both the Rodriguez and Larios cases were summarily affirmed they are not considered binding precedents. And interestingly, E. Mark Braden, Republican redistricting lawyer who litigated both cases, said last year that he thought Larios carried greater significance because it “rejected a hard 10 percent [deviation] rule.”.
The Stateline article asked, “When, if ever, should courts throw out district maps as unconstitutional because they were drawn for clearly political reasons?” I believe SCOTUS answered, “not ever” in Perry v. Perez.
“… [A] court, as a general rule, should be guided by the legislative policies underlying” a state plan—even one that was itself unenforceable—“to the extent those policies do not lead to violations of the Constitution or the Voting Rights Act.”
Simply put, a federal court can’t invalidate a legislative redistricting plan solely on partisanship grounds. The partisan gerrymander has to have created constitutional or VRA violations.
Concerning the one-person, one-vote aspect of Favors v. Cuomo, the Senate Majority’s plan and argument is weakened by its use of different population deviations, not only upstate and downstate, but even in some adjoining districts. The Assembly, on the other hand, uses the same deviation within counties and groups of upstate counties.
That’s the one and only point that may win the case for the Senate Dems. The fact that the Court didn’t raise the possible Section 2 violation on LI should concern the plaintiffs.
Judge Lynch reportedly accused the Senate Majority’s counsel of trying to run out the clock. That sort of thing does not sit well with judges. The lawyers would be well-advised to argue the law and the constitutionality of the expanded senate.
Stay tuned as the oral arguments will continue on Friday.
Read more here via - Three-Judge Panel Questions New York Senate and Assembly Redistricting Plan.