With the dust mainly settled in the New York redistricting litigation, let's take a quick look back at how the state Court of Appeals missed the boat in its decision to invalidate congressional and state senate lines this year. See Harkenrider v. Hochul, in which a 4-3 majority found an improper partisan gerrymandering and chastised the Independent Redistricting Commission for its missteps in the process. Rather than concentrate on the court's substantive view that the legislatures drew unconstitutional lines (we think they were wrong) or the problems with the redistricting procedures (we think the court overreached on this as well), we focus on the court's problematic remedy.

The court issued its April 21st decision weeks after nominating petitions had been filed and the primary election campaign was already in full swing for a June 28th vote, and yet it ordered new lines to be drawn weeks down the road, obviating the scheduled primary. In so doing, it ignored what U.S. Supreme Court Justice Kavanaugh has called a "bedrock tenet of election law," that courts should not change rules so close to an election. We may not be enamored with this Justice's opinions in general or the many ongoing misapplications of this principle (see, e.g., Prof. Rick Hasen's analysis at https://electionlawblog.org/?p=129174), but in theory the doctrine makes sense. As Kavanaugh put it, "When an election is close at hand, the rules of the road must be clear and settled. Late judicial tinkering with election laws can lead to disruption and to unanticipated and unfair consequences for candidates, political parties, and voters, among others."