Nadler on redistricting: ‘Courts are gonna end up having a large role to play in this’

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Jerrold Nadler. (Jerrold Nadler, via flickr)
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Amid the abundant concerns surrounding New York's legislative and congressional district lines, Rep. Jerry Nadler this morning predicted that, "courts are gonna end up having a large role to play in this," and that those courts, thanks to a recent Supreme Court decision that left him "astonished," will have to defer to the desires of the politically motivated state legislature.

"How much deference, is the question," said Nadler.

On Jan. 26, the Senate Republicans and Assembly Democrats released their proposed state legislative district lines, something they're required to do every 10 years after the census reveals shifts in state population. The idea is that the legislature should amend district lines so that citizens are as fairly represented as possible. In truth, the ruling parties in the Senate and Assembly (the Republicans and Democrats, respectively), use the process as a means to cement their own power.

So it came as little surprise when the proposed new lines, particularly the lines for the Senate, where the Republican majority is under threat, outraged good-government groupsminority voters and apparently Andrew Cuomo, who has been left look uncharacteristically weak after having promised to fix the state's notoriously unattractive redistricting process.

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Though the governor had long threatened to veto any new lines that weren't drawn by an independent process, the legislature's lengthy show of ostensibly seeking public input and then crafting the lines hasn't left enough time for an independent commission to reconsider the districts. And the state legislature has yet to release its proposed new congressional lines, this even though a court recently moved the state's congressional primary to June 26.

"That means petitions have to go out March 26," said Nadler, who represents much of Manhattan's West Side, lower Manhattan and a swath of Brooklyn, and whose own district lines remain in doubt. "That means that you have to submit the signed bill to the Justice Department by January 26, for 60 days, which is over. So, I mean, I assume, I assume the courts are gonna end up having a large role to play in this."

But how big a role those courts will play also remains in doubt, thanks in good part to a Jan. 20 Supreme Court decision regarding the redistricting process in Texas.

In the Texas case, the state legislature had approved new lines, but had yet to get them "precleared" under section 5 of the Voting Rights Act. The Voting Rights Act of 1965 was designed to guarantee the franchise for minority voters. In order for a state to change district lines in certain parts of the country, including Texas, Brooklyn, Manhattan and the Bronx, it must first get preclearance from either a three-judge U.S. District Court in Washington, or the attorney general.

Texas sought preclearance, but, noted the Supreme Court, "As Texas’ 2012 primaries approached, it became increasingly likely that the State’s newly enacted plans would not receive preclearance in time for the 2012 elections."

And so a district court took over and substantially redrew the lines, in an effort to ensure fairer representation for Hispanic voters. The dispute landed with the Supreme Court, which ruled that the district court had failed to pay sufficient deference to the will of the legislature.

The state plan, argued the court, "serves as a starting point for the district court," even when that state plan has not been precleared.

"What really astonished me frankly, was that the legislature had drawn lines, apparently egregious lines that violated the Voting Rights Act," said Nadler. "It hadn’t been pre-cleared ... Normally, one would expect that until it got pre-clearance, it’s a nullity. There’s nothing to give deference to. The court said no. Even though it hadn’t gotten pre-clearance yet, it’s an expression of the will of the legislature, to which the court owes deference, and sent it back."

What might that mean for New York State?

"What that means, I think, is that if the legislature passes a bill and the governor vetoes it, the court still owes deference ... How much deference, I don’t know. Probably somewhat less deference than if the governor signed it but hadn’t gotten pre-clearance yet."

"And that raises another question," continued Nadler. "Let’s assume the legislature can’t agree, and so the Assembly passes a bill and the Senate passes a separate bill. Nothing goes to the governor. The court has to draw lines. I think they all do one-house bills, there’s some deference under the Supreme Court decision. It’s a startling conclusion. As I read the decision, that’s what it says."

One possible silver lining to all of this is that, though the congressional primary has been moved to June, the legislative primaries look slated to take place in September, which gives state leaders more breathing room on that front.

"If that’s true, as obnoxious as that is and if that costs $50 million, that still gives you more time," said Nadler. "So the congressional lines are much more rushed. Now the legislature always uses the congressional lines as an afterthought after they do the important ones, their own."

As far as the lines now stand, Nadler, like most Democrats, is not impressed.

"The State Senate lines in particular are so egregious, are so ridiculous," he continued. "I don’t know what’s going to happen. And New York will once again maintain its tradition of being the last state in the union to accomplish reapportionment."