You were hardly alone if you anticipated the New York Court of Appeals, the state’s highest court, would side with the state in the 2022 redistricting challenge.

Or if you anticipated the court would let 2022 elections proceed – with district lines newly drawn by the state Legislature – and decide on their constitutionality in plenty of time for 2024 elections.

Yet as Gomer Pyle might have said, “Surprise, surprise, surprise.”

The court held on April 27 that the state Legislature violated the state Constitution by (1) gerrymandering the state’s congressional districts and (2) disregarding the procedure that the state Constitution mandates for drawing congressional-district lines and state Senate-district lines.

The court then (3) sent the challenge back to the state Supreme Court, which in New York is a trial-level court, to draw new district lines.

¯ The court of appeals needed only four pages of a 32 page opinion to affirm the lower courts’ finding that the congressional districts – as the state Legislature redrew them in 2022 – were a partisan gerrymander.

The court says several of the state’s experts “did not take into account the reduction in competitive districts.”

¯ The holding on the procedure is much longer.

The problem began, the court says, when the state’s Independent Redistricting Commission – pleading a bipartisan deadlock – didn’t submit a second redistricting plan to the state Legislature after the Legislature rejected the commission’s first plans.

As an aside: The commission’s name is misleading. It’s not independent in the sense of nonpartisan, because it’s bipartisan.

In short, when the commission didn’t submit a second redistricting plan, the state Legislature started with a blank slate and drew its own plan.

But the court says the state Constitution doesn’t permit starting with a blank slate.

Here’s what the state Constitution says, in Article III, Section 4(b): “If either house (doesn’t) approve the legislation implementing the second redistricting plan, … each house shall introduce such implementing legislation with any amendments each house of the legislature deems necessary.”

The court says the phrase “introduce such implementing legislation” means the starting point must be the commission’s second redistricting plan. That’s what must be introduced in the state Legislature.

What’s introduced can then be amended, the court says. However, “even then, a statutory restriction enacted as a companion to the constitutional reforms (establishing the commission) preclude(s) legislative alterations that would affect more than two percent of the population in any district.”

That 2 percent law boxes in the state Legislature’s ability to amend the second redistricting plan. So don’t be surprised if it occurs to some in the Legislature’s majority party to repeal that law. Yet such a statutory repeal wouldn’t repeal the partisan-gerrymander ban in the state Constitution.

What if there’s no second redistricting plan?

The court answers that question too: Then a state court may draw the lines, including congressional-district lines.

But won’t that just give minority-party commission members incentive to do nothing?

The court responds to that as well: “Legislative leaders appoint a majority of the (commission) members and, in the event those members (neither) appear at commission meetings (nor) otherwise perform their constitutional duties, judicial intervention in the form of a mandamus proceeding, political pressure, more meaningful attempts at compromise, and possibly even replacement of members who (do not) faithfully perform their duties, are among the many courses of action available to ensure the (commission) process is completed as constitutionally intended.”

And if none of those work, then a state court may draw the lines, including congressional-district lines.

¯ Is there a potential problem with that?

You, faithful reader of this column, already know the answer is “yes.”

One potential problem, you know from this column in March 2022, is this: The U.S. Constitution’s Elections Clause – in Article I, Section 4 – says the “Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

In a challenge to congressional redistricting by a state court, not a state legislature, four U.S. Supreme Court justices said on March 7 that the court should decide whether, given the Elections Clause, state courts – as opposed to state legislatures – may draw congressional-district lines.

It’s not hard to see that in varying states, such a decision would have the effect of varyingly benefitting Democrats and Republicans.

The Constitution, however, doesn’t turn on that.

So stay tuned.

In the nationwide sense, this one is far from over.

Dr. Randy Elf’s most recent U.S. Supreme Court brief is at https://works.bepress.com/elf/84.

COPYRIGHT ç 2022 BY RANDY ELF