Constitutional Election Machinations and the New York Court of Appeals Crisis
Last week’s Thanksgiving-eve release of the list of seven candidates for the chief judge of the New York Court of Appeals comes on the heels of last month’s elections in which the court’s handling of New York’s congressional redistricting map likely swung the House of Representatives to the Republican Party. In that case, four judges of the Court of Appeals—all appointed by Democratic former governor Andrew Cuomo—handed to a Republican Supreme Court Justice in tiny Steuben County the authority to draw the state’s congressional map, with predictable results.
The redistricting litigation dramatically illustrates how consequential will be the appointment to fill the vacancy created by the abrupt August retirement of former Chief Judge Janet DiFiore, who authored the redistricting decision. And along with a less-heralded challenge to the state’s expanded absentee-balloting scheme—also before a Republican judge in a small upstate county and ultimately decided less than a week before the election—the case also illustrates the tight interrelationship between New York’s highly detailed constitution and the unsavory electoral machinations of both the Democrats and the Republicans.
Before turning to the high-profile redistricting controversy, it’s worth examining another constitutional election litigation that received scant attention: a Republican challenge to the state’s expanded absentee-voting scheme. That challenge, resolved on the eve of the election, threatened to imperil hundreds of thousands of absentee ballots in an election decided by narrow margins.
Following the 2021 election, the Legislature—controlled by Democrats—enacted two measures that were the target of Republican challenges. The first, prompted by delays in processing absentee ballots in the 2021 elections, expedited the process by which boards of election would count absentee ballots, largely eliminating the freezing of absentee ballots for potential challenge by political parties, candidates, or private citizens. The second change extended to the end of 2022 a prior legislative enactment that allowed COVID-19 to be a basis for qualifying for an absentee ballot. That second change was expected to significantly increase the number of people voting by absentee ballot, thus amplifying the effect of the first set of changes to the processing of absentee ballots.
On September 29—more than nine months after these measures went into effect and less than six weeks before the November 8 election—Republicans filed suit in Saratoga County, a venue that assured them of a Republican Supreme Court Justice and resulted in the case being heard by one who had been a Republican Party official. The suit invoked various provisions of the New York Constitution to claim the new absentee-ballot statutory scheme was unconstitutional on its face, meaning a win could invalidate absentee balloting across New York. (The NYCLU intervened on behalf of voters whose ballots were at risk.)
On Friday, October 21—the day before the first batch of absentee ballots were to be processed—Supreme Court Justice Dianne Freestone issued a decision finding the new processing scheme to be unconstitutional and directing the Republican plaintiffs to submit an order that would bar the opening of absentee ballots. Justice Freestone premised her holding on the notion that expediting the counting process impermissibly deprived the courts of their role in adjudicating ballot challenges and deprived private-citizen poll watchers of a substantive due process right to contest a ballot. Without discussion of or even citation to a single constitutional ruling from any court, Justice Freestone declared the scheme “conflicts with Article 1, §6, Article I, §11, Article II, §8 and Article VI, §7 of the New York State Constitution.” Amedure v. State of New York, 2022 WL 14731190 (Saratoga Supreme Court, Oct. 21, 2022).
As for the challenge to the extension of the COVID-eligibility for absentee ballots, that presented a more serious issue. The New York Constitution includes a provision that expressly addresses eligibility for absentee ballots:
The legislature may, by general law, provide a manner in which, and the time and place at which, qualified voters who, on the occurrence of any election, may be absent from the county of their residence or, if residents of the city of New York, from the city, and qualified voters who, on the occurrence of any election, may be unable to appear personally at the polling place because of illness or physical disability, may vote and for the return and canvass of their votes.
The Republican challengers contended the “because of illness or physical disability” language limited absentee voting to those who were actually sick on the day of the election and did not permit absentee balloting for those who only feared being exposed to COVID if they voted in person, as was the position of the state Board of Elections. As with the Republicans’ challenge to the streamlined processing, Justice Freestone found considerable fault with the COVID-eligibility extension. Nonetheless, she concluded she was bound by an Appellate Division decision rejecting a nearly identical challenge that Republicans had mounted in 2021 to the original legislation authorizing absentee ballots on the basis of COVID.
Both sides quickly appealed to the Third Department, while Republican election officials across the state disclosed they intended not to process absentee ballots, even in the face of an emergency stay the Third Department granted. (Ultimately, they relented.) Following full briefing over the course of less than a week, the Third Department heard argument on Tuesday, November 1, one week before the election and with over 200,000 absentee ballots already counted. In more politically-neutral territory, the Republicans’ last-minute challenge was met with considerable skepticism. Most notably, when the lead Republican lawyer stood up to argue, he was meet with a sharp question from presiding Justice John Egan: “Where have you been?”
As Justice Egan’s question foreshadowed, the Third Department ruled the following day that the Republicans had waited too long to bring the case and that to decide the matter in the middle of the election would be impermissibly disruptive. The court therefore dismissed the case on laches. Surprisingly, the Republicans did not appeal to the Court of Appeals, which was standing by to handle the appeal immediately.
Though the Court of Appeals was not called upon to decide the election-eve, absentee-ballot challenge, it was the central player in the redistricting litigation earlier this year. And the court’s actions in that case loom large over the upcoming appointment of a new chief judge to replace Janet DiFiore.
The redistricting challenge had its roots in a constitutional amendment that voters adopted in 2014 to create what was dubbed an “independent” redistricting commission to draw electoral maps for state and congressional elections that would be submitted to the Legislature for approval. As with nearly all aspects of New York’s election apparatus, Democrats and Republicans equally controlled the redistricting commission, which was a recipe for stalemate. And sure enough, following the 2020 Census, the commission deadlocked on proposed maps, with each side forwarding its map to the Legislature, which in turn rejected both and, pursuant to the 2014 amendment, sent them back to the commission. When the commission deadlocked again in January 2022 and would not produce further maps for legislative approval, the Democrat-controlled Legislature drew and adopted its own maps, which many viewed as gerrymandered.
On February 3, Governor Hochul signed the new maps into law. That day, Republicans challenged the maps in a case they strategically filed in western Steuben County (with about 61,000 registered voters out of the state’s nearly 13 million) and unsurprisingly were assigned a conservative Republican judge. In that case, the Republicans contended the maps ran afoul of the procedures the 2014 constitutional amendment prescribed for operation of the redistricting commission. In addition, they claimed the maps violated a separate constitutional provision, also adopted in 2014, barring partisan gerrymandering: “Districts shall not be drawn to discourage competition or for the purpose of favoring or disfavoring incumbents or other particular candidates or parties.”
The real fight in this dispute was less about whether the process conformed to the 2014 amendments and whether the congressional map was an impermissible gerrymander—reasonable people could argue either side—and more about what would be the appropriate remedy for any such violation. Notably, while both the Steuben County justice and the Appellate Division, Fourth Department invalidated the congressional map, their remedy was to require the Legislature to submit an appropriate map quickly.
The conservative majority of the Court of Appeals, however, took a far more radical approach. In an opinion by then Chief Judge DiFiore and Judges Garcia, Singas and (now Acting Chief Judge) Cannataro, the Court, after affirming the congressional map was impermissible, took redistricting entirely out of the hands of the Legislature and put it in the hands of the conservative Steuben County Republican judge the Republicans had obtained. This extraordinary act of judicial usurpation of a quintessentially legislative prerogative came without any claim that such an extreme remedy was constitutionally required nor any explanation as to why it was appropriate as a matter of policy or of democratic governance. Harkenrider v. Hochul, 38 N.Y.3d 494 (2022).
Unsurprisingly, the Steuben County judge developed a congressional map that greatly disadvantaged Democrats; Democrats lost four of their House seats, and Republicans gained three (New York having lost one seat in the 2020 reapportionment). With only two House seats to be decided as of publication, Republicans have won 220, just two more than needed for control.
A Consequential Vacancy
Dramatic as it was, the redistricting decision was no aberration for the Court of Appeals, which prior to Janet DiFiore’s departure was a conservative court at its core hostile to civil rights and civil liberties. Her departure creates an even split between the three conservative members of the Court—all of whom joined Judge DiFiore’s redistricting opinion –and its three moderate-to-progressive judges—all of whom disagreed with the majority.
Not only is there an ideological divide, but the Court appears fractured in other ways. The redistricting decision included some barbed rejoinders, most notably with Judge Wilson—who has emerged as a voice of conscience on the court since his 2017 appointment—being accused by the majority of “parroting” the Attorney General’s brief and “begin[ning] his dissent with a nonsensical advisory opinion.” And the Vatican-like opaque process by which an acting chief judge was selected—which ultimately concluded with an appointment contrary to the tradition of naming the most senior member of the court—raised many concerns about comity amongst the judges.
With Acting Chief Judge Cannataro on the list of seven candidates, the appointment of a new chief judge may or may not determine the ideological balance of the court. If he is selected, the court still will have a vacancy, which will require another round of candidate selection. If another candidate is chosen, however, that person will become both the chief judge and the seventh member of the court.
Either way, we are at a pivotal moment. The Court of Appeals has a long and proud history, and Governor Hochul has an historic opportunity to add to that illustrious history.
This piece was originally published in the New York Law Journal