Judge Mann asks legislature’s lawyers why on earth redistricting should protect incumbents

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New York's congressional districts. ()
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On Monday afternoon, in a crowded federal courtroom in Brooklyn, Magistrate Judge Roanne Mann peppered a series of attorneys with distinctly skeptical-sounding questions about why the court should consider incumbency when drawing the state's new congressional lines.

Mann, who was appointed by a three-judge panel of district judges to oversee the congressional redistricting process, must chart the court's course somewhere between a set of maps submitted by Common Cause, which deliberately ignore where existing legislators live, and a couple of competing plans offered by state legislators, which seek to minimize competition among current office-holders.

Mann sat quietly through the first few presentations, which mostly argued for a "Unity Map" drawn by a coalition of minority groups, but she began to pipe up when Marc Elias—who represents a group of voters in overpopulated districts, but also has close ties to Democratic congressional committees—began to argue that the court should not start from scratch, but instead use the existing congressional map as a guide. 

Mann wondered why the current lines should be more of a guide than the state constitution, which calls for continguous and compact districts and makes no mention of incumbency.

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And, after Elias called the two Republican plans "good old-fashioned partisan gerrymanders," Mann asked, pointedly, whether "partisan gerrymandering" and legislative "horse-trading" should be considered legislative policy that the court should respect. 

Much of the discussion centered on the Supreme Court's recent decision in Perez v. Perry, which ruled that a district court in Texas should defer to the lines enacted by the legislature. Because New York's maps were never passed by the legislature or signed by the governor, as the Texas lines were, opponents of incumbency-protection argued that the court owed the draft partisan lines no consideration.

But Elias, who admitted to being one of the attorneys who lost that Texas case, argued that the people expressed their preference in 2002, when the legislature did enact a plan that considered existing legislators.

He argued that there were good policy reasons for considering incumbency, and that the court needs an anchor from which to work.

"It's not a very good anchor when you have to carve out two districts," replied Mann, referring to the state's need to eliminate two of its 29 congressional seats after New York registered a relative decrease in population in the last census.

Todd Geremia, a lawyer for Senate Republicans, said the court should aim for "a sort of least-changed plan," and touted his clients' lines as having the lowest possible numbers of "pairings," in which incumbents are forced to run against other incumbents.

Geremia argued that the ties between an incumbent and the communities they represent shouldn't be ignored, and that voters should be spared a choice between two incumbents.

In challenging the attorneys, Mann repeatedly returned to the fact that congressional candidates don't have to reside in their districts, so voters would still be free to choose their existing representative, even if the incumbent was drawn into a neighboring district.

Geremia argued that sacrificing incumbents risked "losing hundreds of years of seniority" from the state's congressional delegation, and said that the good-government group Common Cause's maps—which would "pair" existing representatives in eight districts—was "almost incumbent-averse."

And he suggested the court should give more weight to the legislators' plans, since, he said, voters had sent them to Albany to make just these kinds of decisions.

"I don't think anyone is suggesting the court shouldn't consider them," Mann replied. "I think the question is, what is the starting point?"

"Incumbency is an expression by the voters of who should represent them," Geremia said.

Daniel Chill, representing the Assembly Democrats, also argued for the prerogative of incumbents, saying it's "state policy" based on decades of redistricting plans that considered the existing legislators, and that the court could perhaps make it a significant factor without "putting it at the top of the list."

Mann, who has been described by a party in a previous case as a "smart but humorless jurist," occasionally drew laughs from the crowd of reporters and advocates.

At the beginning of his remarks, Chill said, "You would think from listening to the Senate majority that we're so close maybe we should make a deal."

"Maybe you should," Mann shot back, to laughs from the gallery.