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Brian Lehrer: It's the Brian Lehrer Show on WNYC. Good morning again, everyone. We'll get details now of the New York state primaries thrown into chaos and along with them, Democrats' hopes of retaining control of Congress in the midterm elections, why New York's Highest Court yesterday threw out the new congressional district lines as unconstitutional, state senate districts too. We'll explain how the lines might have to change to be more friendly to Republican candidates, how there now may need to be two different primaries in the state this year. What about Texas and Florida and all those Republican-controlled states that gerrymander for their party's advantage and get away with it?

With us is WNYC and Gothamist, New York State Capitol reporter, Jon Campbell. Hi, Jon. Welcome back to the show.

Jon Campbell: Hi, Brian. Thank you.

Brian Lehrer: How much did the district lines that the court threw out, and more likely seats for Democrats in Congress in New York State and take from Republicans?

Jon Campbell: As of right now, New York has 27 congressional districts that's getting knocked down to 26, because of the latest census numbers, but right now, we have 19 Democrats and eight Republicans. This map which was drawn entirely by Democratic legislators in Albany, it would have made for 22 Democratic districts and four Republican districts so that's a big swing.

It's one that national Democrats, they were hoping to pick up a few seats in New York as they desperately cling to their majority in the House of Representatives, but it's a total wildcard. We have no idea what this special master, a guy by the name of Jonathan Cervas from Carnegie Mellon University, we have no idea what he's going to draw, and now a lot of people are really on edge. That's not even to mention we don't know exactly what's happening with the primary date so everything's a mess right now.

Brian Lehrer: We'll get to the primary date. There was a process involving an independent redistricting commission that was new this year that the state was supposed to follow, but didn't that's one of the reasons the court threw out these districts. How much was it a process problem, and how much did the court just judge these congressional and state senate districts to be too partisan?

Jon Campbell: It was a process problem for both the congressional and the state senate districts, but it was a gerrymandering problem only for the congressional districts, if that makes sense. It was a complicated decision, but essentially, the judges of the court of appeals or at least four of the seven of them, ruled that Democrats gerrymandered the congressional lines to benefit Democrats.

They did not make that same ruling in the Senate lines, they did make the ruling that the proper process wasn't followed, that essentially, the Independent Redistricting Commission, which voters approved in 2014, they were supposed to send a set of lines to the legislature, the legislature rejected those. Then they were supposed to send a second set of lines, and if the legislature were to reject those, then the legislature could step in and draw their own lines. That never happened.

The Commission which was made up of five Democratic-aligned commissioners and five Republican-aligned commissioners, they totally deadlocked. They never sent a second set of lines. The legislature stepped in any way and the Court of Appeals ruled that wasn't proper so that's why they threw out both the Senate and the congressional lines.

Brian Lehrer: Listeners, if you have a question about this earthquake in New York state politics, with big implications for control of Congress, Jon Campbell will take a few questions at 212-433-WNYC, 212-433-9692, or tweet @BrianLehrer. Jon, I see you brought a clip of Michael Li, Senior Counsel for the Brennan Center for Justice, their democracy program, about something that makes this New York case different than gerrymandering cases in other states. Here's that clip.

Michael Li: Historically, partisan gerrymandering claims were brought in federal court, I think because people thought that was a better venue. But with the Supreme Court in 2019 saying that federal courts could not hear partisan gerrymandering claims, people have increasingly turned to state courts and found a lot of success in state courts.

Brian Lehrer: What's he saying there? What are the implications for New York being different and the national implications of that?

Jon Campbell: It's not so much that New York is different, it's the court is different here. Redistricting comes up once every 10 years, and in the past, when there were gerrymandering challenges, a lot of people would bring them to federal court. They would think that the federal judges are removed from the state system and maybe you get a fair shot at determining whether these maps were violated one person one vote or violated gerrymandering protocols, et cetera, et cetera.

He's saying in 2019, there were these redistricting cases in Maryland and North Carolina that made their way to the Supreme Court, and the Supreme Court said, "Well, it's not really up to federal courts to police gerrymandering, that's a state question."

This year, you saw a lot of challenges in state courts, and you're seeing some state courts playing ball, at least in some states in terms of tossing these lines and ruling that they are gerrymanders. Maryland tossed their lines this year that's a Democrat-controlled process. The same thing with North Carolina that's Republican-controlled. Now we have New York where a Democrat appointed court threw out the Democrat drawn lines. It's a new world with these state courts weighing in on redistricting questions.

Brian Lehrer: Chalk one up for the independent judiciary, a court of appeals with its members appointed by a Democratic governor, or a series of Democratic governors overtime ruling against something the Democratic Party was trying to do and its interest.

Jon Campbell: Yes. Republicans are really cheering this decision. This is a major, major victory for Republicans in New York and nationally. This could have been a swing of a few seats, and that makes a big difference when the Democratic majority is only a few seats. It's a big deal. Democrats are shocked by this decision, quite frankly. They thought that as they progress through the court system, each step of the court system was going to be more deferential to them. It didn't happen. This was a big win for Republicans.

Brian Lehrer: I see that Florida is also going through a partisan gerrymander led in that Republican-controlled state by Governor Ron DeSantis, and their Republican-controlled legislature. It'll be the state court there that decides if the Republicans get away with it. I ask because maybe the Republican-appointed court in Florida won't be as non-partisan as the Democratic-appointed court in this case. I guess that's a risk of a double standard disadvantaging Democratic voters unfairly and unequally.

Jon Campbell: Yes. In New York, we should say too. The reason why the congressional maps were ruled to be unconstitutional gerrymander is because a clause was added to the state constitution in 2014 that prevented this very thing. It prevented the drawing of maps to benefit or harm a particular party or particular candidate, and that really came up big. Elections have consequences. Voters were asked to approve this redistricting process and the changes to the Constitution that included that anti-gerrymandering provision in 2014, and it really had a difference, it really made a difference. Now, it's going to have an impact for the next 10 years.

Brian Lehrer: Let's take a phone call. Carla in Franklin, New York, you're WNYC. Hi, Carla.

Carla: Hi. Thank you so much for having me on. One of the questions I have about this is how-- In New York state if you look at the voter enrollment numbers, approximately 50% of the people are registered as Democrats. 21% are registered as Republicans and about 23% are registered as non-affiliated voters. New York, we have many more Democrats than the Republicans.

We have districts in the city where 90% of the registered voters are Democrats. Upstate, we have districts in the way it is now, where maybe 65% are Republicans and the other number is Democrats. It doesn't make sense that the Republicans have so much power in this decision because they're just not here in the state, and why are none of these people paying attention to that part of this?

Brian Lehrer: Well, I guess the judges who remember were appointed by Democratic governors looked at this and said, "Still unfair." Jon, do if they were looking at stats like Carla was saying, and of course, I don't know if all her stats are accurate, but they're probably roughly accurate? It is a much more democratic registration state than Republican registration state. Would the percentage of districts that were drawn basically to get Democrats elected to Congress be roughly proportional to those who registered democratic in New York state?

Jon Campbell: Well, here's what they looked at, and her percentages, if they're not spot on, they're very close. It's two to one Democratic to Republican. At this point, you have more independent, non-affiliated voters than you do Republicans at this point, though, it's pretty close. Here's what they looked at.

The Republicans who sued over this and challenged this, they hired an elections expert by the name of Sean Trende, he's from the website Real Clear Politics. He built a computer simulation and he did, I believe, it was 15,000 simulations, he created 15,000 maps said, "Hey, draw these fairly." Basically, what he came up with was the Democratic drawn maps that the legislature came up with, they just were far more Democrat heavy than any of these computer simulations that he came across. That played a big role in this case, it is what the Appellate Division cited, the mid-level court when they issued their decision in favor of Republicans.

The Court of Appeals basically said, "Yes, we don't really see any reason to overturn that." Basically, what the courts came up with was Trende's analysis, plus the fact that it was 22 to four Democrats to Republican, plus the fact that Republicans were totally cut out of drawing the maps all of that added up to show intent and that was enough to show that Democrats gerrymandered the maps.

Brian Lehrer: Karen in Brooklyn, you're on WNYC, with our Albany correspondent Jon Campbell, Hi Karen.

Karen: Hi, Brian, thanks for taking my call. I heard Jon's story on this issue over the weekend. By the way, I'm with a group called Draw Democracy that's been active on this redistricting issue over the past year. I was stunned by the fact that he didn't say anything about the way these districts are meant to represent people, not parties. They're not owned by parties. There's been a whole movement in New York and around the country to build that independent redistricting commission and to put the voice of the people more into developing these districts to represent communities.

I see this throwing out of the districts as a win for the people, not for Republicans. We do have a preponderance of Democrats in New York, therefore, we don't need to gerrymander to have more democratic seats. The way they set up the commission was broken from the beginning. It is self interested legislatures who chose those people and so they refuse to agree. They did, however, come up with maps after hours and hours of public hearings that represented a lot of what people wanted. Then the legislature threw out those maps and drew maps that were completely different.

Let me just give you one example that I'm sure you've heard of. There is this, it's called the Long Island Sound district that they drew for Congress, I believe it's district three. It includes parts of Westchester, tiny, tiny sliver of the Bronx, and then it covers the coastline all the way out to Suffolk County. That's not a community of interest. That's just drawing a district for Democrats and it's wrong. That poor slice of the Bronx in particular is completely going to be unrepresented within that district.

I'm really happy they threw the districts out. I'd like to point out also the common cause threw in on this Republican lawsuit, because they also saw that those maps were wrong. I'm hoping that by the next time, we're going to have a real Redistricting Commission which is not chosen by legislators but which has truly independent members on it and then we may get some better representation.

Brian Lehrer: Karen, let me ask you a follow up question as somebody who is involved in a group that is for what sounds like a mom and apple pie goal and standard, which is non-partisan, redistricting everywhere. In fact, I can remember when former mayor of New York City Ed Koch, way after he was out of office before he died, his last campaign was to try to get members of both parties in the New York State Legislature and candidates for governor and for New York State Legislature to agree that they were going to institute a non-partisan redistricting system. Many agreed but then they didn't really follow through.

If you look at the national context, Karen, what a lot of Democrats say is, "We don't want to unilaterally disarm," because if they're doing very pro Republican partisan gerrymandering in Texas and Florida and wherever, and the federal courts, as Jon was explaining, have said they will not take a position on this. If the Republican states are willing to go their way for their districts, and the courts won't do anything about it there and unbalance the districts, and a state like New York unilaterally disarms from the Democratic Party perspective, how are you going to find your way to an American single standard?

Karen: Well, I understand that that's the issue on people's minds. It is true that the Republicans, in my view, because they just have a much more long-term and strategic way of approaching political power than do the Democrats, they set out years ago to control those state legislatures which control redistricting. The Democrats just didn't pay any attention to politics at that level, and then all of a sudden, boom. It disempowers people and it makes our political system even more sick, when the districts are drawn in such a way that communities don't have any impact on who gets elected because they've been drawn block by block to make one party stronger than the other.

We have states all over the country in California as a leader that has a true independent Redistricting Commission. What happens when you allow these Commissions to work is that districts are more competitive, they're not more Republican, they're not more Democrat, they're more competitive. One of the things that that means is that moderate people can get elected whereas this system where each party draws the districts to be like 70% for their people, you get the extremes of both parties. You get the MAGA people and you get some socialists which I personally agree with a lot of what they do, but a lot of people find it frightening and they don't support that and it doesn't help Democrats-

[crosstalk]

Anyway, sorry.

Brian Lehrer: Karen, it's a worthy goal to have non-partisan districting everywhere. At the moment, we seem to have it in some places and not in other places and it seems to benefit Republicans in Congress. I think, Jon, after the 2010 census, when Republicans had recently won control of so many legislatures, Republicans gerrymandered like crazy to their advantage so we currently have a Congress with a larger percentage of Republican representatives than the percentage of Republican voters in America. It's already partisan to some degree, this New York thing is happening in the context of that.

Last question for the moment, what happens to the primaries, the Congressional and State Senate primaries, like the ones for governor and other offices have been scheduled for June 28th but it's going to take time to re-draw these lines and then give potential candidates a period of time to get on the ballot. Will they have to be delayed now?

Jon Campbell: Well, some of them will have to be delayed. The court's decision seem to suggest that they want to move only the State Senate and congressional primaries to August and leave everything else in June, including the governor's primary, the Lieutenant Governor's primary, judicial delegate primaries, those kinds of things. That is, at this point, elections, commissioners are scrambling trying to figure out what is going on right now.

The legislature, in theory could move the primary date to August itself or they could just wash their hands of this whole process and let the courts do that. That would be judge Patrick McAllister in Steuben County who was the the original trial court judge for this case. It's a mess right now but it's gearing up as if we're going to have a split primary with some of the races on June 28th as scheduled right now and some others at some point in August.

Brian Lehrer: Especially for governor on June 28th, and then for especially Congress in August, in addition to State Senate. Do you have a quick political analysis of who that might benefit? I imagine that turnout will be even lower for the second primary than for the first primary. Turnout is always low in primaries. Is that likely to help or hurt somebody, and then we're out of time.

Jon Campbell: I haven't really thought that through yet but you're right, it would make primary turnout lower, especially for that second primary where you don't have like a big statewide race.

Brian Lehrer: Our Albany correspondent Jon Campbell. Jon, thanks a lot.

Jon Campbell: Thank you for having me.

Brian Lehrer: Brian Lehrer on WNYC, more to come.

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