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Gov. Kathy Hochul’s latest picks for New York’s highest court could play a key role in deciding whether the state will rip up its congressional district maps and start over — a move that could help determine which party controls the U.S. House of Representatives in 2024 and beyond.
Hochul on Monday nominated Associate Judge Rowan Wilson, a liberal, to take over as chief judge of the state Court of Appeals. At the same time, Hochul said she will tap Caitlin Halligan, the former state solicitor general, to take Wilson’s current position should he be confirmed by the state Senate.
The nominations come as a Democrat-led appeal challenging the state’s congressional maps continues to work its way through the courts. Democrats, who lost multiple New York seats last year en route to losing control of the House, are fighting to have a state panel redraw the state’s 26 congressional districts. Those boundaries were drawn by an independent expert last year. Republicans performed well under the current map and are fighting to keep it in place.
Should the case make it to the Court of Appeals as many legal observers expect, Halligan could be in a position to cast the deciding vote. The other six Court of Appeals judges — which includes Wilson, who has been on the court since 2017 — split on a similar case last year that forced the removal of a set of Democrat-friendly maps.
Halligan, a private attorney who specializes in appeals, has never served as a judge and has no known record on redistricting law. But Democrats are hopeful the latest court shakeup could improve their prospects for success, and legal experts say they’ve got a better chance now that former Chief Judge Janet DiFiore — who cast the deciding vote in last year’s case — is no longer on the court.
“The future of the appeal may rest in part on [Wilson’s] ability to sway judges to his side, as well as [Halligan] and where she might come down as a possibly deciding vote to send the congressional redistricting back,” said Jeffrey Wice, a New York Law School professor who has specialized in redistricting issues for decades.
Making an appeal
The pending appeal has support from Democrats in Washington and Albany, including Hochul, who filed a joint brief with state Attorney General Letitia James in support of redrawing the maps. It’s being led by the Elias Law Group, a firm that regularly represents national Democratic organizations like the Democratic Congressional Campaign Committee.
Republicans, however, have suggested Hochul and Democrats are trying to pack the Court of Appeals to get a favorable outcome, knowing the 2022 congressional maps helped tip the balance of the House to Republicans. The GOP now holds 11 seats in New York after it gained four last year, including the Long Island seat now held by embattled Rep. George Santos.
The future of the appeal may rest in part on [Wilson’s] ability to sway judges to his side, as well as [Halligan] and where she might come down as a possibly deciding vote to send the congressional redistricting back.
Last year, Republicans were behind the successful lawsuit to overturn a set of Democrat-drawn congressional maps that would have had a Democratic edge in 22 of 26 districts. The Court of Appeals, then led by DiFiore, threw the maps out and ordered a “special master” selected by a state Supreme Court justice to draw new ones.
In their appeal, Democrats claim the special master’s maps should only apply to the 2022 elections. Instead, the state Independent Redistricting Commission should be given another chance, they argue. Last year, the commission’s deadlock allowed Democratic state lawmakers to step in and draw their own maps, the ones that were eventually tossed.
“Our state’s constitution makes it clear that an independent body, with participation from the general public, is charged with drawing maps for congressional districts,” James said in a statement last week as she filed her brief supporting the appeal.
Former Rep. John Faso, who has been assisting the state Republican Party with its redistricting strategy, said Democrats are just “trying to get a mulligan.”
“They’re trying to get a do-over,” he said. “They attempted an egregious gerrymander, which three courts last year found to be unconstitutional, and now they’re going back with this kind of Hail Mary approach to say, ‘Oh, that redistricting was only for 2022.’”
The midlevel Appellate Division in Albany is scheduled to hear the Democrats’ appeal next month, after state Supreme Court Justice Peter Lynch dismissed it late last year. (“I think not!” Lynch wrote in his ruling.) If the midlevel court issues a split decision, it would clear the path for the case to go to the Court of Appeals. Otherwise, the attorneys would have to seek the top court’s approval before appealing the case further.
[Democrats] attempted an egregious gerrymander, which three courts last year found to be unconstitutional, and now they’re going back with this kind of Hail Mary approach to say, ‘Oh, that redistricting was only for 2022.’
Where will Halligan stand?
There’s little doubt where Wilson — a judge with a reliably liberal record — stands on the issue of redistricting. He wrote a thorough dissenting opinion in last year’s case, arguing that the Democrat-drawn maps did not violate the state constitution and should have been allowed to stand.
Vincent Bonventre, an Albany Law School professor who has long studied the Court of Appeals, says all signs point to Halligan also being more of a liberal judge, considering she clerked for liberal judges, including former U.S. Supreme Court Justice Stephen Breyer.
But that doesn’t necessarily give any indication of how Halligan may rule in the redistricting case, he said.
“We never can be certain how somebody is going to be once they put the robes on,” said Bonventre, who believes there is merit to the Democrats’ appeal.
Whether Halligan is in place by the time the redistricting case makes it to the Court of Appeals could be in question, however.
Hochul nominated Wilson to chief judge from a list of seven finalists selected by the state Commission on Judicial Nomination. She’s nominating Halligan to replace Wilson as associate judge from the same list of seven finalists, rather than a new list after Wilson is promoted — a move only made possible by a recently passed bill Hochul signed into law just last week.
The governor claims it will expedite the process and ensure that the Court of Appeals will be at its full complement quicker. But Republicans claim it violates the state constitution and are weighing a lawsuit; they claim the commission will have to come up with a new set of seven finalists before Hochul can appoint someone to fill Wilson’s associate role.
As of Thursday, Republicans hadn’t yet filed a legal challenge. Wilson, meanwhile, will face a Senate confirmation hearing in the next 30 days, with Halligan’s to follow.