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The Empire

Are early redistricting lawsuits too early?

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From left, Assemb. Jack McEneny, Sen. Michael Nozzolio and Sen. Martin Malavé Dilan (Colby Hamilton / WNYC)

Earlier on Tuesday, Democratic State Senator Martin Malavé Dilan filed a lawsuit in state court challenging the constitutionality of Senate Republicans’ plans to create a new district in the Albany area. The plan would bring the State Senate’s total size up from 62 to 63 seats.

“The lawsuit is being filed because the majority in the New York State Senate failed to follow the constitution of the State of New York, Section 4, which…if you follow the formula strictly it would only result in 62 seats,” Dilan said before the Bronx LATFOR hearing on Tuesday. “This time around they decided needed a 63rd seat; perhaps to continue control of the New York State Senate.”

Dilan’s suit is just another salvo in a pre-emptive strike campaign by opponents of the LATFOR process. As the turbulent process moves into its final stages, these lawsuits become pieces on the board as stakeholders—legislators, non-government groups, the Governor and communities throughout New York—prepare for the redistricting end game.

The lawsuit a ruling that “they”—that is, Senate Republicans—didn’t follow their own, court-approved process for figuring out the number of Senate seats. He said the ruling could happen as soon as a week.] For an explanation of how they got to 63 seats--and why Democrats think they're wrong--check out my earlier piece.]

Dilan’s counterpart on LATFOR, Republican Senator Michael Nozzolio, said before the meeting that he had faith that their attorneys had divined the number of senate seats correctly and that the court would agree.

“The constitution of the state of New York will decide this. Not Senator Dilan. Not Senator Nozzolio. Not the Senate entirely,” Nozzolio said. “We certainly believe the analysis done by the attorneys is accurate. We believe the court will ultimately confirm that.”

The Lawsuits

As mentioned, the complaint filed by Senator Dilan in state court is asking a judge to find the Republicans “failed to apply the Senate size formula prescribed in Section 4 consistently, rationally or in good faith.”

The question facing whichever judge hears the case is whether or not the case is “ripe”—that is, if the issue in the case is fully formed enough to decide. What will likely come down to in this case is whether or not the Senate declaring its intent to create the district is enough.

“Courts will only deal with a live controversy,” said voting rights attorney and Pace University law professor Randolph McLaughlin. “One could argue that until the plan is signed into law, any lawsuit arising out of the plan is not really properly before the court.”

McLaughlin, who was involved with another state election case involving the redistricting process in Nassau County (his side won), believes there’s enough evidence for the court to proceed.

“I don't think there's a question that the Senate intends to [create a 63rd seat],” McLaughlin said. “So should we wait for them to do that? Or should we take them on their word, that they intend to this—and they’re doing it for clearly partisan purposes.”

But this isn’t the only lawsuit that’s been filed early.

“We have two lawsuits now. One of them--a federal lawsuit that was filed two months ago--says courts should draw the lines because the legislature wasn't going to move quickly enough,” noted Jerry Goldfeder, a Manhattan-based election lawyer with Stroock & Stroock & Lavan LLP. “Well, now the legislature is about to move. I’m not sure, unless they amend that lawsuit, where that lawsuit goes."

Both of these lawsuits could get held up until actual maps are passed. If the issues they’re hoping to address remain relevant, the cases could go so far as to invalidate the Senate maps through the state courts or be the lead voting rights case in the federal courts.