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WPCNR FOR THE RECORD. Partial Transcript of the of Court of Appeals Decision on Redistricting. April 27, 2022:

EDITOR’S NOTE: In a 78-page decision handed down this afternoon, Chief Justice of the New York State Court of Appeals, Janet DiFiori author of the majority opinion declared both State and Congressional redrawn districts “procedurally unconstitutional” and provided the following “remedy” to show the way ahead to settle the districting problem. The compl;ete decision may be read here paste in your browser to go direct to this historic decision:

Here is the transcript from Chief Justice DiFiori’s court decision explaining the court remedy for the correcting of the “procedurally infirm” districts and what comes next:

The majority correctly concludes that sections 4, 5, and 5-b of article III of the State Constitution, as ratified by the citizens of the State, provide the exclusive process for redistricting (see NY Const, art III, § 4 [e]). This process requires, among other things, that any redistricting plan to be voted on by the legislature must be initiated by the Independent Redistricting Committee (IRC) (see § 4 [b]).

Once this Court holds that the 2022 plans were unconstitutionally enacted and must be stricken on that threshold basis, it should not then step out of its judicial role to further opine on the purely academic issue of whether the 2022 congressional map failed to comply with the substantive requirements of section 4 (c) (5).

The 2022 plans, which the majority concludes are void ab initio, are no longer substantively at issue, nor can the majority seriously claim them to be so.

Furthermore, although the majority purports to provide “necessary guidance to inform the development of a new congressional map on remittal” (majority op at 24 n 12), the majority’s opinion provides no such guidance.

Its conclusion, based on affirmed findings of fact that the congressional map was drawn with partisan intent, is not illuminating in the least because the majority does not engage in the kind of careful district-specific analysis that might provide any practical guidance to an actual mapmaker, nor could it on this record (cf. Wilson dissenting op at 12-25).

By opining on this academic issue, the majority renders “an inappropriate advisory opinion” by “prospectively declar[ing] the [redistricting] invalid on additional . . . constitutional grounds” (T.D. v New York State Off. of Mental Health, 91 NY2d 860, 862 [1997]; see Self-Insurer’s Assn. v State Indus. Commn., 224 NY – 3 – No. 60 – 3 – 13, 16 [1918] [Cardozo, J.]

[“The function of the courts is to determine controversies between litigants . . . They do not give advisory opinions. The giving of such opinions is not the exercise of the judicial function”]).

Given the procedural violation flowing from the breakdown in the constitutional process, we must fashion a remedy that matches the error.

1 The Constitution contemplates that a court may be “required to order the adoption of . . . a redistricting plan as a remedy for a violation of law” (NY Const, art III, § 4 [e]). In so ordering, where a court finds that redistricting legislation violates article III, “the legislature shall have a full and reasonable opportunity to correct the law’s legal infirmities” (§ 5).

Consistent with these provisions, this Court should order the legislature to adopt either of the two plans that the IRC has already approved pursuant to section 5-b (g). Those plans show significant areas of bipartisan consensus among the IRC commissioners. The boundaries of the districts of Upstate New York, in particular, are nearly identical between the two plans and similar to those in the procedurally infirm plan enacted by the legislature (see Matter of Harkenrider v Hochul, — AD3d —, 2022 NY Slip Op 02648, *7 [4th Dept April 21, 2022] [Whalen, P.J. & Winslow, J., dissenting in part]).

Given the existence of these IRC-approved plans, there is no need for a redistricting plan to be crafted out of whole cloth and adopted by a court.

Rather, the legislature should be ordered to adopt one of the IRC-approved plans on a strict timetable, with limited opportunity to make amendments thereto.

As part of our judicially crafted remedy, we could order that any amendments to either plan “shall not 1 The majority seems unwilling to grasp this concept (majority op at 31-32 n 20). – 4 – No. 60 – 4 – affect more than [2%] of the population of any district contained in such plan” (Legislative Law former § 94).

In other words, the legislature would be bound by its own self-imposed restrictions, which were in effect at the time these plans were first presented for legislative approval. Such a remedy not only adheres more closely to the constitutional redistricting process, but it discourages political gamesmanship.

Throughout this proceeding, respondents have asserted that the legislature has near-plenary authority to adopt a redistricting plan, whereas petitioners have sought to take the process out of the hands of the legislature and to place it into the hands of the judiciary.

It is of course disputed why the constitutional process broke down, but it is readily apparent that the IRC’s bipartisan commissioners failed to fulfill their constitutional duty. None of the parties is entitled to the resolution that he or she seeks.

In addition, this remedy allows the legislature to enact a plan that minimizes the impact on the reliance interests of both the voters and candidates. Petitions have been circulated, citizens have contributed monetary donations to the candidates of their choice, and eligible voters have had the opportunity to educate themselves on the candidates who are campaigning for their votes, all in reliance on the procedurally infirm redistricting plan enacted by the legislature.

Of course, entrenched candidates have the party apparatus to support them in the event that further redistricting causes excessive upset to the current plan. In such a circumstance, outside candidates, upstart candidates, and independent candidates, who lack the resources of the well-heeled, will be disadvantaged most, leaving – 5 – No. 60 – 5 – the voters who support them without suitable options.

The legislature, duly elected by the citizens of this State, is in the best position to take these considerations into account. Yet, the remedy ordered by the majority takes the ultimate decision-making authority out of the hands of the legislature and entrusts it to a single trial court judge.

Moreover, it may ultimately subject the citizens of this State, for the next 10 years, to an electoral map created by an unelected individual, with no apparent ties to this State, whom our citizens never envisioned having such a profound effect on their democracy.

That is simply not what the people voted for when they enacted the constitutional provision at issue.

Although the IRC process is not perfect, it is preferable to a process that removes the people’s representatives entirely from the process.

The majority states that it “decline[s] to render the constitutional IRC process inconsequential in the manner requested by the State respondents” (majority op at 23); however, the majority does just that by crafting a remedy that cuts the legislature out of the process. The citizens of the State are entitled to a resolution that adheres as closely to the constitutional process as possible.

By ordering the legislature to enact redistricting legislation duly initiated by the IRC, this Court could afford the legislature its “full and reasonable” opportunity while honoring the constitutional process ratified by the people.

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