The Decision that Could Flip Control of the House

New York’s highest court, in a narrow decision, hands Democrats the power to retake the House using the GOP’s own tactics

Rowan Wilson, Chief Judge of the NY Court of Appeals. Photo: Hans Pennink / AP

On Tuesday, a long awaited ruling by New York’s highest court set in motion a redistricting process that, if carried through to its logical end, could result in three to six congressional seats flipping from red to blue. That could be enough for Democrats to regain the majority in the House of Representatives.

To understand why that is, we begin from the fact that, in the state of New York, the ultimate say over how district lines are drawn resides in the hands of the Democrats in the state legislature. That means that, in theory after this ruling, district lines can be redrawn before the 2024 midterms to make it much harder for several House Republicans to hang on to their seats.

But wait. Isn’t this gerrymandering? Isn’t it the very kind of thing that Democrats complain Republicans rammed through across the South, especially recently in North Carolina? There, a change in the Supreme Court make-up allowed a Republican supermajority in the North Carolina legislature to redraw the state’s congressional district maps. The historically 7-7 congressional delegation split now looks more like a 11-3 lopsided one going into 2024—a loss of four Democratic seats. It was a pure GOP power play, and Democrats have been itching to strike back. New York was their opportunity.

There is certainly a lot of political and judicial gamesmanship at work. And unlike in North Carolina, New York legislators are constrained by limits on political gerrymandering and need to tread far more carefully so as not to repeat the debacle of 2022, which I’ll recount below. 

Assuming this is at least gerrymandering-“light,” this raises a significant question: If given the opportunity, should New York Democrats press their power and draw district lines more favorable to them, significantly increasing the chance that congressional Democrats regain the majority in the House? Or should Democrats stand on principle and allow the GOP alone to push the limits of its power?

Otherwise put, does the need to counter aggressive gerrymandering by the GOP, and to prevent a Christian Nationalist like Mike Johnson from retaining the House Speakership during a likely contested electoral count, justify these raw knuckle means?

I offer my thoughts here. But to understand how we got to this place, we need to rewind to 2022.

New York Democrats’ catastrophe

In 2022, a red wave didn’t materialize across the nation as expected. In the highly contested battleground states, where things like abortion rights were on the line depending on who was in power, Democrats outperformed expectations by a long mile.

Not so in New York. Five districts that had been handily won by Biden in 2020 flipped to the GOP, handing Republicans a narrow House majority and the nation two years of total dysfunction in that body.

So what happened?

In part, this was a failure by the Democratic state party to answer the GOP’s negative messaging on crime and immigration. It was a failure of leadership at the top of the ticket with a lackluster campaign by Gov. Kathy Hochul against an aggressive, well-financed opponent. 

But it was also a big disaster when it came to redistricting.

As Marc Elias of Democracy Docket explained,

The maps story began in earnest last year, when the state’s independent redistricting commission was tasked with redrawing district lines in the aftermath of the 2020 Census, which resulted in New York losing one House seat. But the bipartisan panel failed to come to an agreement on a set of maps, prompting the predominantly Democratic State Legislature to step in and draw its own lines that heavily favored the party. 

In other words, Democrats saw an opening, and they sought to capitalize on it. The state’s redistricting commission is split evenly among Republicans and Democrats, so it’s hardly a surprise that they could not come to agreement on a new map. The problem is, from a structural standpoint, that meant the legislature (controlled by the Dems) would have the final say. Armed with this assurance, however, Democrats on the commission could simply withhold support for any map that wasn’t highly favorable, knowing that this would mean the commission would come up empty and the maps would get kicked to the Dems in the legislature.

And that’s exactly what happened. The Dems, at the urging of Gov. Hochul, who was once gerrymandered out of her own congressional district, went to work, packing and cracking Republican votes in the same manner GOP-controlled states often do to Democratic ones.

There was a problem to this, however. Even though the New York’s highest court (confusingly called the Court of Appeals) comprises all Democratic appointees, they apparently still have strong legal principles. Per Elias:

When Governor Kathy Hochul signed the new map into law, it was immediately challenged in court by Republicans, starting a drawn-out saga of rulings and appeals that led all the way to the Court of Appeals. The court would ultimately rule the map unconstitutional and appointed a neutral special master to draw new lines for the districts. 

Ruh-roh. A special master appointed by the courts is a roll of the dice. And in this case, it went very badly for the Democrats.

Colleagues found themselves drawn into districts together, prompting some to either seek new seats or challenge their newfound neighbors. The new map made several districts more competitive than they would have been under the Democratic version, with Republicans winning most of the races in tight districts.

Democrats sue for new maps and get a new state High Court

There is no rule that says that ill-considered maps drawn by a special master must remain in place for the whole decade. In fact, Democrats argued the maps are not legal because, under the state constitution, it must be the independent commission that draws them.

Unhappy with this map, Democrats sued in court, claiming that the commission failed to do its constitutional duty in submitting maps, and it should be ordered now to do so. And on Tuesday, the state’s highest court agreed.

But there’s something else at work here. Going back to the same Court of Appeals that threw out the Democrats’ map was unlikely to achieve a more favorable outcome. But just as in North Carolina, a change in the state high court’s composition proved determinative. 

The old map was rejected by the prior court 4-3. But since then, one of the dissenters was appointed Chief Justice, and his seat was filled by a more left-leaning associate justice. That new justice actually recused herself on the matter of the maps, and her temporary replacement voted with the new majority 4-3 to order the commission to draw new maps.

Lucky break.

If this feels familiar, I’ve written earlier about how, in the state of Wisconsin, the election of Justice Janet Protasiewicz flipped the majority on that state’s high court to the liberals. Shortly after she was sworn in, progressives sued to invalidate the rigged maps that keep the GOP in an unfair supermajority in the legislature, despite the state being a deeply purple one. Were the legislature to reflect the state’s voters, after state assembly and senate district lines are redrawn, state representation would also be nearly evenly split, meaning a possibility for more fair congressional district lines as well. That’s the power one justice on one state high court has. Republicans in Wisconsin hate this so much that they talked openly of impeaching Justice Protasiewicz to keep her from stripping them of the maps that keep them in permanent rule. (That impeachment effort appears to have died off.)

The New York decision is not without significant controversy. The former majority, now in the minority, blasted the decision as purely political and a delegitimization of the court. As in North Carolina, it sure feels like the only thing that has changed is the make-up of the court. But the New York Court of Appeals ordering the commission to do its constitutional duty and draw a new map is far less repugnant than changing the law itself in North Carolina, where that state’s supreme court had held just a year ago that political gerrymandering itself was unconstitutional.

What happens next?

Unlike in North Carolina, the die is not cast on new New York maps. The state’s independent commission must now attempt to draw maps again and fulfill its constitutionally prescribed role. 

And this means that a map that heavily favors the Democrats is not a slam dunk. If GOP partisans on the commission dig in, then once again it will go to the Democratic legislature, which might produce a result worse for Republicans than if they had worked in a bipartisan way on the committee. Conversely, if Dem partisans on the commission dig in, they risk a repeat of 2022: a map so skewed by the Dems in the legislature that it gets tossed out by the courts.

Also unlike North Carolina, in New York actual partisan gerrymandering is prohibited. Lines and districts can be drawn in contiguous ways to reflect things like communities of interest, but efforts to expressly draw voters in or out of districts based solely on their party might get struck down.

Stay within the law, but no unilateral disarmament

I am a political pragmatist. There is the world I would like to see, and there is the world we live in now. My general political philosophy is to seek to arrive at the former while taking keen account of the latter.

The world I would like to see is one where political gerrymandering does not exist, where dark money doesn’t infect our politics, and where racial minorities have real opportunities to elect representatives from their own communities. 

But the world we live in now is one where legislatures in red states will continue to gerrymander, even if those in blue states decline to; where big dollars will flow only to the GOP if Democrats don’t also seek it; and where Republican majorities will suppress minority votes and representation unless we actively demand color-conscious opportunity districts.

I do not wish to disarm unilaterally when the GOP is fighting an all-out war for its own political survival. Too much is at stake to allow anti-democratic forces to press their power unanswered. And if we don’t respond in kind, then we have permitted a grave unfairness and injustice to take further root.

At the national level, Democrats have proposed legislation to end gerrymandering, dark money and racially-motivated vote suppression. But these have all failed in large part because Republicans retain a minority veto in the form of the Senate filibuster. We must continue to press for these reforms, but in the meantime we simply cannot just lay down the tools we still have.

This is not a position I arrive at lightly. The temptation to abuse political power exists on both sides, and once it is allowed through the door, it is hard to curtail it. Democrats elected through gerrymandered districts, for example, will fight hard to keep their unfair advantage. And so the problem is self-perpetuating—at least until both sides stop.

The people have the power to force an end to this. In Michigan, voters approved a measure that put an independent redistricting commission into place in time for the 2022 elections. What resulted was a flip in control of the statehouse, from the GOP to the Dems. Ohio is now considering a similar statewide measure next year to undo more than a decade of terribly unfair maps. And in Wisconsin, where there is no power by the citizens to introduce initiatives or referenda at the statewide level, the people nevertheless have spoken resoundingly by electing Justice Protasiewicz by more than 11 points. 

In the specific case of New York, to my mind the answer is a bit simpler. New Yorkers should vote under a map that more closely resembles how things were before this new map was imposed by a single special master in 2022. The state’s independent bipartisan redistricting commission should draw the map within the rules prohibiting political gerrymandering and with an eye instead toward keeping communities of interest together—meaning they have common policy concerns and considerations. 

That leads to better and more effective representation in Congress. And yes, it does mean more Democrats than we have now, back toward how things were under the 2020 maps. But that is because these communities of interest, when lumped together, tend to skew more Democratic and aren’t split by more arbitrary lines as they are now.

If there were no guardrails around how maps could be drawn, and the state’s highest court was prepared, as it did in North Carolina, to rubber stamp whatever unfair maps the legislature proposed, I’m not sure how I would answer this question. To be honest, with the future of the country and millions of lives at stake, I would probably say, “Go for it, New York. Press with all you’ve got. Answer North Carolina’s gerrymander with your own.”

But that’s not the world we actually live in. The new maps will have to follow New York law, and while there is admittedly a great deal of gray area and likely a more receptive state Court of Appeals majority, nothing is guaranteed. We need maps that can survive intense judicial scrutiny and advance a non-partisan rationale for how they are configured. That likely means a more modest shift of three to four seats toward the Dems, instead of the six that a hyper-aggressive redraw could produce. 

No matter how you slice it, 2024 is going to be a nailbiter, both for control of Congress and the White House. Today, millions of Ukranians are wondering if they will still have a country, in large part because the House, controlled by a razor-thin GOP majority, has demanded poison pills on migration be included. Instead of legislating for the good of the American people, the House GOP has spent a year passing nothing and deposing their own leaders, all while threatening to blow up the economy and impeach Joe Biden based on zero evidence. And when the Congress meets in January 2025 for the electoral count, the tally very well might send the matter to the House of Representatives for final determination. I would sleep far better knowing the Democrats were in charge on that day.

Given all these considerations, and with the future of the country and indeed the entire planet on the line, it is hard for this political pragmatist to argue we should simply let the GOP get away with its own power plays with zero response. The time to fix the system is not always when we are racing to the finish line. Let’s get there, take assessment, and reform the system at the national level when we have the power to do so.