Voting stations at Wyatt T. Walker Senior Housing in Harlem, New York on November 2, 2021. Photo: Ryland West/ALM Voting stations at Wyatt T. Walker Senior Housing in Harlem, New York on November 2, 2021. Photo: Ryland West/ALM

Redistricting

New Yorkers are about to vote from state Assembly districts that have been held unconstitutional. After months of redistricting litigation throughout the country and here in our state as well, how did this happen?

The Appellate Division, First Department recently decided that the state's Assembly districts were unconstitutional. But, given the impending June primary, the court also decided that these lines would nevertheless remain in effect this year. Reaching back to two cases from 1969 and 1973, the court relied on previous instances where voters elected public officials from invalidated districts. Those decisions were long before much of the nation's robust voting rights jurisprudence, and, although the June 28th primary was around the corner when the First Department heard the case, there was already in place an August 23rd primary for U.S. Congress and state Senate that could have included the Assembly races as well. Moreover, a court-appointed Special Master who had created the new congressional and senate districts already had the demographics of the entire state on his desk, which would allow him to draw new Assembly lines in short order.

Leave to appeal was sought to the Court of Appeals, which was denied. This was surprising. After all, it was only several weeks ago that the Court of Appeals ordered unconstitutional congressional and state Senate districts to be re-drawn, forcing a change in the originally-scheduled June primary to August for those offices. In fact, although the court at the time declined to order new lines for the Assembly because those districts had not been challenged in the pending lawsuit, it did opine that the Assembly lines were just as "procedurally infirm" as the congressional and senate districts. So, when the Assembly lines were ultimately challenged in a subsequent lawsuit, the First Department relied on the Court of Appeals' previous opinion and invalidated them.