Legal Expert: NY Redistricting Unlikely Before Midterms, Red States Push Partisan Maps

As Republicans fear losing their narrow House majority in the upcoming midterms, GOP leaders in some states are discussing redrawing Congressional district boundaries to give their party an advantage in 2026.

In Texas, Republicans could gain as many as five House seats if redistricting efforts are successful.

In response, New York Democratic Governor Kathy Hochul recently suggested she would take a “close” look at the possibility of redistricting in the Empire State.

But unlike Texas, New York has in place a constitutional amendment that tasks an independent authority to redraw district lines in accordance with the U.S. Census, which occurs every ten years.

Now, some New York Democratic lawmakers are supportive of legislation that would amend the state constitution to allow for mid-decade redistricting if other states follow through.

To learn more about the latest redistricting battle, WAMC’s Lucas Willard spoke with Richard Briffault, a professor at Columbia Law School.

It’s pure President Trump pushing for partisan gerrymandering. It’s entirely about trying to increase the number of Republican seats by taking districts which are currently constitutionally valid and have been in use and saying, ‘If we can find some states where we can rearrange them, we can increase the number of Republican seats. We can add more Republicans to seats where the Democrats are, or maybe remove Democrats from areas where the Democrats have won and turned those districts into Republican districts, just so that the Republicans can maintain control of the House of Representatives in next year’s elections.’ That’s it. It’s entirely about that there’s no good government, voting rights, constitutional basis for this, it’s entirely a partisan gerrymandering power grab.

So, there’s a real fear among Republicans that they could lose the house in the midterms,

Right. I mean, traditionally, the party in power loses seats in the midterm elections, not always, but that the general cycle, they have a very narrow majority. So, I think there can stay on a pad their majority by adding seats, places like Texas, where there, I think they hope they can add as many as five to offset the possible loss of seats elsewhere.

Now, typically, redistricting is done every 10 years. It coincides with the US Census. But is there anything in the Constitution that prevents states from redistricting early, so to speak, five years in from the usual tenure.

Or late. It’s not really that early. So much as just doing it over again, the U.S. Constitution has said nothing about this, so there’s no U.S. constitutional prohibition.

Now, New York Governor Kathy Hochul recently took a look around and saw what was happening in states like Texas and said, ‘Well, maybe this is something that we can look into as well.’ But New York had a bit of a long, drawn-out saga with its last bout of redistricting and that turned into a political mess. So, you know, do you have chances that New York will actually open the door to this?

Almost certainly not. You asked before whether the Constitution prohibits this mid-decade redistricting. The federal constitution doesn’t, but the New York State Constitution does, as a result of a redistricting reform amendment that was adopted about 10 years ago and then got its first work out at the beginning of this decade. So, one of the few things that New York State Constitution basically says, once the redistricting is completed, it’s good until the next census. So, in order for New York to do a mid-decade redistricting, New York would have to amend the state constitution and that is impossible to do before the 2026, election. So, I don’t know what people are talking about. I mean, it could be you could amend it to make it possible for future years, and even then, you’d have to get the voters to approve the amendment. But to me, the ads, the odds of it happening in New York are less than 1%. You never say never, I guess. But the odds of it happening in New York are kind of under 1%

Now, maybe, Richard, if you could, sort of take me back a little bit about the saga that New York experienced in 2022. An Independent Redistricting Commission proposed maps, two sets of Congressional maps because the commission itself couldn’t agree on one, and that was ultimately rejected by lawmakers, state lawmakers, and then that kicked off a whole back and forth that stretched on in the courts for a couple of years after that. Can you give me sort of a brief history lesson here?

Well, that’s what you said is basically what happened the New York. New York voters amended the Constitution sometime in the 2010 decade, I forget exactly what year. And it kicked in for the 2020 the post 2020 redistricting, they created an independent redistricting commission whose, which couldn’t force their recommendation on the legislature, but the legislature had to deal with it. This time, and it also, the constitution also put in various procedural and substantive provisions about what could and could not be done in redistricting. As you mentioned, the IRC, the Independent Redistricting Commission deadlocked, so the legislature was kind of a bit freer to do what it wanted to do when it adopted a plan which kind of leaned Democratic, and that was challenged on both procedural grounds, in terms of their failure to even give any weight to what the IRC had done, and on substantive grounds, it violated various provisions in the Constitution. The courts were kind of divided, but in the end, they agreed with the challengers in part, and struck down the maps. Things went back to the let went back to the let went back to the redistricting process, and this time, the IRC actually came up with a recommendation. There was a bipartisan support, which the legislature basically adopted. So, it was a rough ride, but in the end, the system more or less worked, and we have a plan that did have bipartisan support

Now, we started this conversation by talking about and mentioning the US Census. And the reality for New York State is that the population growth here is outpaced by a lot of other states, particularly in the South and in the Sun Belt. New York is losing population compared with those other states. Now, that means it could have an impact on the next round of redistricting after the next Census. So even if New York were to somehow change the Constitution and go through another redistricting process before the next U.S. census, there’s a reality there that the state is losing its people, and therefore it’s representation, its number of representatives in Washington.

Right, I mean, after New York, state will almost certainly lose at least one more seat in after the 2030 census, which will show up in the 2032 election. It’s not going to show up before then that. And so that will certainly affect the composition of the state Congressional delegation. It’ll affect the way, the redistricting of the state legislature, of course, the size of the state legislature won’t change. But not only are we looking at with it within the state, we’re looking not just the overall population, but the distribution of population within the state. And my sense is, I don’t know this for sure, is that in New York State, most of the population losses upstate, so to the so that that will show up the next time the legislature is redistricted, which, again, would be post 2030

When it comes to states that are going through the redistricting process, like Texas, do you think that this could leave a bad taste in some voters’ mouths, if one side is picking up potentially five seats in the midterms because of redistricting, that this could have a backlash that could hurt Republicans in Texas?

Well, I gotta say, I kind of hope so that voters would be upset by this manipulation. But you never know what with voters. It may not be top of mind when voters actually go and vote. We don’t know what people we don’t know now what people are going to be focusing on 15 months from now, but you’re gonna hope that people are at least annoyed by this kind of blatant manipulation.

Story by Lucas Willard/New York Public News Network

Image Credit: National Park Service