Federal Court Ruled Incumbency Is Not a Judicial Concern


One immediate takeaway from the federal Court’s congressional redistricting plan and ruling is that incumbency protection (i.e., seniority and residence) should not be a factor when crafting a judicial plan. The ruling will have no influence on the bipartisan redistricting commission proposed in the recently passed legislation amending the state constitution.

In a stinging rebuttal of the state Senate Majority’s urging of judicial deference to incumbency protection as a “state policy” and a “well-established, traditional districting principle in New York,” Judge Dora Irizarry wrote

“Had the New York State Legislature done its job and passed its own redistricting plan, judicial deference would be paid.”

Judge Irizarry wrote,

“After considering and weighing all the competing legal and equitable arguments, the Court concluded that the creation of a redistricting plan that ignored incumbency would enhance both the reality and appearance of judicial impartiality, and would be entirely consistent with governing case law.”

Although, the Supreme Court has identified incumbency protection as a permissible factor in fashioning redistricting maps, it said so regarding plans enacted by state legislatures. [In Bush, 517 U.S. (964), the Court recognized “incumbency protection, at least in the limited form of avoiding contests between incumbents, as a legitimate state goal”]

And Judge Irizarry noted that Eastern District courts have observed that “the powerful role that seniority plays in the functioning of Congress makes incumbency an important and legitimate factor for a legislature to consider.” [Diaz, 978 F.Supp. at 123 (emphasis added); see also Rodriguez II, 308 F.Supp.2d at 370 (legislatively drawn plan reflected permissible policy of limiting incumbent pairing].

Judge Irizarry carefully states that “it does not follow that a court-drawn redistricting plan must — or even should — take incumbency into account.

“Many factors, such as the protection of incumbents; that are appropriate in the legislative development of an apportionment plan have no place in a plan formulated by the courts.” Wyche v. Madison Parish Police Jury, 769 F.2d 265, 268 (5th Cir. 1985).

The bipartisan redistricting commission crafted by the state legislature appears poised to engage in the kinds of political deal-making and partisan compromises that good government groups and critics fear.

Judicial History

In 1982, Judge Robert Patterson refused to consider continuity of constituencies” and “political fairness” in crafting New York’s congressional redistricting plan. He explained:

[W]hile considerations of “political fairness” may well be appropriate in approving a legislative plan, they may not be appropriate for a court fashioning its own apportionment plans, absent an articulated and rational basis in the statutes or Constitution. These considerations are not included in the Court’s criteria and I have concluded that I should not use such a criterion as it may place the Court in the tenuous position of appearing to serve partisan political interests. For the same reason, while I recognize that some courts have made allowance for the protection of incumbents in drawing their plans, the plans I submit have not done so.

Pairing of incumbents

The Court found the concern to be overstated. “Contrary to the arguments advanced to the Court, an incumbent whose residence happens to fall outside the judicially drawn boundaries of her congressional district will not be deprived of the opportunity to serve her constituents, nor will her constituents be deprived of the opportunity to vote for her (provided she decides to run).

The Court reminded defendants that the only residency requirement for congressional candidates is that they reside within the state in which the district lies. “Consequently, when, as a result of redistricting, an incumbent finds herself outside her old district and “paired” with another incumbent in a different district, the disappointed incumbent may nevertheless run for re-election in her former district.”

The Court also noted that for defendants to complain that the incumbent shouldn’t be handicapped, reveals the concept of incumbency protection for what it is: an attempt to protect the position of the politician, rather than the right of the voters to re-elect a preferred incumbent. (My emphasis added.)

Incumbent Residency

“If, as the advocates of incumbency protection so urgently argue, incumbents have come to know and understand the concerns of their district, thereby forging relationships with constituents that are worth maintaining, then an “outdistricted” representative should run for re-election on the basis of that relationship, and not on the particulars of her address.”

“Unlike some parties to this action, …, this Court trusts that voters can rationally decide whether to support an incumbent whose home happens to be in an adjoining district.”

Reducing the number of Congressional districts

“…[If] the Court were inclined to consider incumbency, it would then have to decide which incumbents should be unpaired. No party has proposed a neutral principle to guide the Court in making such a decision.”

“In the course of the legislative line-drawing process, lawmakers plainly can and do protect their own; this judge is not convinced that courts should follow that tradition of political horse-trading.”

Clearly, the Court has established that the State Legislature is the appropriate realm for considering incumbency in crafting a redistricting plan. It will be interesting to see if voters will want the proposed independent bipartisan redistricting commission to engage in incumbency protection and political deal-making.

Stay tuned…

About SquarePegDem

A former state legislator turned NY Post editorial board member, thought-leader, public affairs consultant and commentator, columnist and blogger. Michael has appeared on Al Jazeera America Tonight, NY1/Inside City Hall, FoxNews.com LIVE, YNN/Capital Tonight, The Brian Lehrer Show, The Fred Dicker Show, The Capitol Press Room, and The Daily Show. His op-eds have appeared in the NY Post, City and State, The Legislative Gazette, Bronx Times, The Troy Record, Buffalo News, and the Rochester Democrat and Chronicle. To schedule speaking engagements, email MBenjamin9@optimum.net.
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