Redistricting Revisited - Court of Appeals Decision in Harkenrider, et. al. v. Hochul, et al.

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by Richard Rifkin, Government Law Center Legal Director

August 3, 2022

Last year, the Government Law Center issued an explainer on the redistricting of the congressional and legislative maps that was about to take place following the 2020 census. It opened by noting that “New York is about to engage in a new and untried procedure….”  It then described this procedure, which was required by a constitutional amendment that had been adopted in 2014. The explainer concluded by noting that “How this will play out is, at this point, quite uncertain.”

With the recent decision of the Court of Appeals in Harkenrider, et. al. v. Hochul, et al.,[1] we now know with certainty the end result.

It did not turn out well.

The Court of Appeals found failures on two issues – one procedural and one substantive.

The following is an examination of both.

Procedural Problem

The 2014 amendment to the New York State Constitution spelled out in significant detail an entirely new procedure for the redrawing of district electoral maps following each census. While this is described in more detail in the previous explainer and in the Court’s decision, the fundamental change was the creation of a new Independent Redistricting Commission (IRC)[2] This Commission, divided equally between Republican and Democratic appointed members, was required to hold specified public hearings, draw maps and submit those maps to the legislature. The objective was to have the Commission draft maps that were not gerrymandered and then have those maps adopted by the legislature.

Although the Commission held hearings and drafted maps, it submitted two sets of maps to the legislature, rather than a single set of maps arrived at by a consensus. One set was developed by the Republican commissioners and the other by the Democratic commissioners. This was its initial failure. Under the constitutional procedure, the legislature could accept or reject the submitted maps. It rejected both sets, as it was entitled to do. This then brought on the critical failure.

Under the State Constitution as amended in 2014, the Commission, upon the failure of the legislature to adopt its first submissions, was required to revise the maps and submit a second set to the legislature. Given the lack of an agreement within the Commission, it was unable to submit any maps at this point. This meant that the Commission had failed to meet one of the critical requirements imposed by the Constitution. With this failure, the question arose as how to proceed. Under the Constitution, the next step in the process was for the legislature to adopt or reject the Commission’s second set of maps. If it rejected those maps, it was then free to draft maps of its own, subject to applicable substantive requirements.[3]

There is no provision in the Constitution as to what the legislature is required to do upon a failure of the Commission to submit a second set of maps. Aware this void, the legislature had enacted a statute in November 2021 enabling it to draft its own maps under that circumstance.[4] Acting pursuant to this statute, the legislature proceeded to draft maps on its own.

The Commission’s failure to submit the second set of maps led to the challenge in the Harkenrider case. The plaintiffs claimed that the Commission’s failure deprived the legislature of the authority to draw its own maps despite its authority to do so had the procedure been followed correctly. In response, the legislature argued that its authority remained despite the failure of the commission. In a 4-3 decision, the Court of Appeals held in favor of the plaintiffs. It determined that the congressional and senate maps under challenge were void due to the lack of authority in the legislature to draw such maps.[5]

Since there was no precedent to guide the Court, as this was the first redistricting following the adoption of the 2014 amendment, the judges had only the language of the Constitution on which to base its decision. As previously noted, it contained no provision as to how to proceed upon a failure of the Commission to follow the procedure set forth therein. The Court did look beyond the constitutional language to the legislative history of the amendment, which became an important consideration. Not surprisingly, the Court was divided, with four judges constituting the majority and three in dissent.

The Court began its analysis by noting that, in the 2014 constitutional amendment, the word “shall” precedes the statement of each act required of the Commission. It then provides that “if” the legislature rejects the second set of maps, it is then authorized to draw its own maps. The Court also noted that the authority given to the legislature permits it to “amend” the second set of maps, not to originate new maps. This language, the Court concluded, denies the legislature the authority to draft maps in the absence of a second submission by the Commission.

The Court then looked to the legislative history of the 2014 amendment. It stated that the purpose of the amendment was to “guarantee that the redistricting maps have their origin in the collective and transparent work product of a bipartisan commission that is constitutionally required to pursue consensus to draw district lines. The procedural amendments… were enacted in response to criticism of the scourge of hyper-partisanship….” Moreover, during the Senate debate on the amendment, it was specifically noted that the legislature was free to amend the Commission’s proposed maps, “not the first time, not the second time, but the third time….” As previously indicated, the second time did not occur.

Finally, the Court observed that a recent constitutional amendment had been proposed that would have authorized the legislature to act in the absence of a second submission by the Commission. This amendment was rejected by the voters in the November, 2021 election.[6] Following this vote, the legislature adopted the statute that would have given it the authority to act in the event of a failure by the commission. The court opined that this statute was void, as it conflicted with the procedure mandated by the Constitution.

The Court concluded that “there can be no question that the drafters of the 2014 constitutional amendments and the voters of this state intended compliance with the IRC process to be a constitutionally required precondition to the legislature’s enactment of redistricting legislation.” It declared the senate and congressional maps drafted by the legislature to be void, as the legislature acted without authority.


Even though the Court voided the maps based on the IRC procedural failure, it determined that it also was necessary to consider the challenge brought by the plaintiffs based on the maps having been unlawfully gerrymandered. However, the Court considered only the congressional map, which was the centerpiece of this part of the challenge.

The legal basis for the challenge was a provision that was added to the Constitution in the 2014 amendment. This provision set forth standards for any map drawn for purposes of redistricting. It contained several requirements, such as protecting minority voting rights and mandating that districts be contiguous and as compact as possible. Critical to the case before the Court was the provision that “Districts shall not be drawn to discourage competition or for the purposes of favoring or disfavoring incumbents or other particular candidates or political parties.”[7] This last provision, in essence, prohibited gerrymandering.

At trial in the Steuben County Supreme Court, the plaintiffs offered the testimony of an expert who, using a computer model, drafted several thousand maps (the exact number was in dispute and not resolved). The expert concluded that, when the map drawn by the legislature was compared with those resulting from the computer models, it was clear that the legislative map was gerrymandered to favor the Democratic candidates. The Supreme Court accepted this conclusion, and it was affirmed by the Appellate Division.[8]

In its decision, the Court of Appeals stated that when it is presented with affirmed findings of fact, its review is limited to the question of whether there is support for those findings. It found no basis to disturb the conclusion that was reached by the courts below.


Having concluded that the congressional and senate maps were void due to the lack of authority of the legislature to draft them and that the congressional map was unconstitutionally gerrymandered, the Court was left with determining an appropriate remedy. This was complicated because the petitioning process that is used to determine which candidates will appear on the June primary election ballot had been completed prior to the date of the Court’s decision. With this decision, there were no longer established congressional or senate districts for the 2022 elections. The Court of Appeals sent the case back to Supreme Court to determine the remedial steps made necessary by its decision.

Judge Patrick Mc Allister, sitting in Supreme Court, had already appointed a special master in the event new maps were determined to be needed. Based upon the Court of Appeals decision, he instructed the special master to draw congressional and senate maps and report back to Supreme Court, which would then approve the final maps to be used in the election. Recognizing that this required the entire election process, including petitioning, to start over, he delayed the congressional and senate primaries until August 23. However, all other primary elections were not moved from their scheduled date in June.

On May 20, after holding further hearings, Supreme Court approved the maps submitted by the special master. These are the maps that are to be used in the 2022 congressional and senate elections as well as in all such elections until the next redistricting in 2032. The court made no ruling of any kind with regard to the assembly map since it was not challenged by the plaintiffs.

However, following this decision, a new action was commenced in the Supreme Court of New York County challenging the assembly map. The plaintiffs requested that it be invalidated because, under the Court of Appeals decision in Harkenrider, it was enacted without authority. While the Supreme Court denied the claim, an appeal was taken to the Appellate Division, First Department.

 In a decision issued on June 10, that court agreed with the plaintiffs, holding that the assembly map was void.[9] However, it then said that although this map was drawn by the legislature without authority, it will be used in the 2022 elections because drawing a new map and holding primary elections, even on a delayed date, is “no longer feasible”. The Court sent the case back to Supreme Court for the purpose of drawing new assembly districts to be used “no sooner than the 2024 regular election….” At that point, the current unauthorized map “will be void….”[10]


[1] 2022 NY Slip Op 2833.

[2] New York State Constitution, Article III, Section 5-b.

[3] New York State Constitution, Article III, Section4(b).

[4] Chapter 633, Laws of 2021.

[5] The plaintiffs did not challenge the validity of the assembly map drawn by the legislature. Thus, the Court did not consider the validity of this map.

[6] Proposition 1, 2021 general election ballot.

[7] New York State Constitution, Article III, Section 4(b).

[8] 2022 NY Slip Op 2648

[9] Matter of Nichols et al v. Hochul et al, 2022 NY Slip Op 3809

[10] This was the final decision in this case, as leave to appeal to the Court of Appeals was not granted.