Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. We're seeing this Republican-controlled political moment in Congress now that we talked about earlier in the show with another possible GOP-driven government shutdown moving at the end of this month, and an impeachment inquiry being launched with not much evidence of anything against President Biden. New Yorkers, you may kid yourself into thinking this is about the Marjorie Taylor Greens of the world or people like James Kumer, who will run the impeachment proceeding from a deep red district in southern Kentucky, but don't kid yourselves, New Yorkers, this is happening largely because of you. Four Democratic House seats flipped to Republican in the state last year, including three in the New York City suburbs, formerly held by Democrats Tom Suozzi, Kathleen Rice, and Sean Patrick Maloney. A fifth seat was lost to redistricting, eliminating Democratic Congressman Mondaire Jones of Westchester. Guess how big the Republican majority is in the House of Representatives? Exactly five seats, the number that were lost in Democrats in New York. It's widely believed that, New York, this is on you. You might like last year's outcome or not, depending on your political beliefs and interests, but control of Congress lives here. Next year's congressional elections will be intensely fought in those Long Island plus a little bit of Queens and northern suburbs, those districts. Our coverage starts now. As it happens, the first order of business for both parties is that New York's congressional map is being redrawn yet again because last year's lines have been thrown out in court. Maybe you haven't even heard that story.

Districting, of course, is politically crucial because one party or the other wins an electoral advantage before the voting even starts. Last year, the Republicans got that geographical advantage, and we see what happened. Where do things stand now? Let's get a New York congressional redistricting update from an expert who's made it his mission to cover this war of the lines with a magnifying glass. He is Jeffrey Wice, adjunct professor and senior fellow at New York Law School where he directs the New York Census and Redistricting Institute, a whole institute devoted to this topic, and is recognized as a national authority on all things redistricting. Jeff, thanks for joining us again. Welcome back to WNYC.

Jeffrey Wice: Yes, it's great to be back, and we're expanding beyond that of a cottage industry redistricting a decade-round endeavor.

Brian Lehrer: Absolutely. Here we are two years in a row on something that's supposed to happen only once a decade after each census. For those of us who don't remember, either because we don't follow it or we blocked it out as a bad memory, can you take us through a little of what happened with the maps and the 22 midterm elections? Why are the districts that people voted in last year now required to be revised?

Jeffrey Wice: Sure. The map that was used in last year's election was drawn by an expert appointed by New York State Supreme Court Justice after the state legislature's plan was rejected for a number of process issues. The map that was drawn last year and used last year is being attacked in court as being a map meant for just 2022 because the judge didn't talk about using the map in the out years 2024 through 2030.

Last year, a trial court rejected that effort. About two, three months ago, the appellate division, New York's mid-level Appeals Court reversed the decision and decided that the New York State Independent Redistricting Commission should get back to work and finish the job that it failed to do in 2022, and that is to submit a new congressional map to the legislature for its adoption, or if that map is rejected, then to let the legislature draw a map of its own. This all has to happen before the primary season ends next year, which usually comes around the end of February or early March.

Brian Lehrer: There's a lot of weeds there. We sometimes talk about things that are wonkily in the weeds. In what you described, the weeds have weeds. Last year, to pick up on a piece of this and try to explain it a little more, New York state voters had instituted an independent redistricting commission, independent meaning Democrats and Republicans were equally represented, uh-oh, to set the new district lines following the 2020 census. That resulted in a deadlock, right? You have equal number of Democrats,-

Jeffrey Wice: That's correct.

Brian Lehrer: - equal number of Republicans, and neither of them gave an inch, so they actually did not come up with a consensus districting plan. Then, what happened?

Jeffrey Wice: Well, what happened was the not-so-independent commission because when push comes to shove, it's independent in title only, not in practice, but the commission failed to do its job by sending a second set of maps [inaudible 00:05:53] after a first set of maps were rejected by the assembly and the Senate in February of 2022. Had the commission sent a second set of maps to the legislature for consideration, we wouldn't be in the situation we're in now, but this is a first-time process. As you mentioned, the voters approved a new commission in the state constitution. No one knew what would happen or what really to do. After the commission imploded and the legislature took it upon itself prematurely to draw the maps, the court said, no, legislature, it's not your job to do this yet, the commission had to do it. Therefore, with so little time left last year, well, the court is going to have a special master, an outside expert come in and draw the map. That's what happened. That's where we are today with a map drawn last year. The question being, should that be a map for 2022 only, or should it be a map for the rest of the decade? That's what's being litigated in court right now before the State Court of Appeals.

Brian Lehrer: Right. Were the Senate maps thrown out by the judge more on the grounds that they jumped the gun and that they didn't take into account the whole decade, or because the lines that the legislature drew were too gerrymandered to help Democrats?

Jeffrey Wice: The court found that the Senate and congressional maps were drawn too prematurely, that it wasn't ripe for the legislature's consideration. The courts also found just the congressional plan to be a partisan gerrymander or a map that was drawn to favor one party over another. In this case, being favoring the Democratic party.

Brian Lehrer: Did the lines that ultimately got drawn last year by the court-appointed special master favor Republicans more than the original lines drawn by the legislature?

Jeffrey Wice: The map itself wasn't drawn to favor Republicans, and the jury is out on what would've happened had the [inaudible 00:08:16] own map been used. Some analyses show that even if the rejected map had been used, Republicans would've won in those districts anyhow, given Lee Zeldin's popularity and the tidal wave that took so many Republicans into office last year. We are where we are now, that the map that was created last year may favor Republicans as well as it did last year, and that a map created by the legislature may end up favoring Democrats more if it's drawn legally and correctly. Given the economy, crime, other issues, you never can really predict what's going to happen on election day.

Brian Lehrer: Right. Certainly, the issues mattered, not just the districts last year, particularly crime and perceptions of it in those suburban districts. Here they are, back to the independent so-called redistricting commission with half Democrats, half Republicans, Brandon in Manhattan has a question about that. Brandon, you're on WNYC. Hello.

Brandon: Hi. My question is really simple. Who is responsible really for setting up this 50-50 commission that couldn't possibly succeed? Was that one of Andrew Cuomo's gifts to the state or who thought that up?

Jeffrey Wice: Well, it was thought up and driven by former Governor Cuomo. He insisted that he would only approve a map in 2012 that came from an independent commission, but he didn't get that. Instead, he cut a compromise. He said that if the legislature creates a constitutional amendment to the commission in 2020 and in the future, then he'll approve the legislature's own self-drawn map in 2012. He concocted the whole amendment, all the bells and whistles, two steps forward, one steps backward. He did it also in concert with the Senate Republicans who were then [inaudible 00:10:26] so they were [inaudible 00:10:29] [crosstalk].

Brian Lehrer: They were then in control of the Senate. You broke up there a little bit. Yes, so I mean, there's a good government impulse somewhere at the bottom of that because partisan gerrymandering is a big problem in this country. It's one of the reasons for polarization. People get shuffled into districts that favor the incumbents from whatever party. That means you have very strong Republican districts, very strong democratic districts all over the country. You have people who are more polarized in Congress than maybe the public is. That's an issue. Tell me if you disagree. At the same time, a 50-50 redistricting commission is a formula for gridlock and failure as we saw last year. Why would it come out any different this time?

Jeffrey Wice: Well, if you apply criteria, meaning population equality, respecting minority voting rights, keeping districts compact, making sure that they don't have 58 [unintelligible 00:11:36] to them, that they respect communities of interest where people live and how they interact as neighbors with each other. If you take a series of factors together, you can draw a map that could reflect where voters want to and how voters want to elect candidates, but we don't have that process now. The amendment that the state created had so many fallacies and flaws that almost anything could have blown up to cause this to go off track. The best way to redistrict to avoid political fights is to follow the model of states like California, Arizona, and Michigan, which have truly independent commissions. When I say truly independent, it's where a commission is appointed of non-politicians or people who are not put in office by elected leaders and whose map is not approved by or reviewed by the legislature. This process has worked well in California for 20 years now.

Brian Lehrer: Interesting. It is possible, though, that the state's highest court could rule in November that the in-place maps will hold and they don't have to go through this all again. Is that correct?

Jeffrey Wice: That could happen. That's true.

Brian Lehrer: Do you expect that? There's a new chief justice in place since last year appointed by Governor Hochul.

Jeffrey Wice: That's hard to say. The new chief judge, Judge Wilson, dissented. He was in the minority last year when this whole issue was before the court. Now, the issue before the court this year is a little bit different because of the bells and whistles and process things involved, but Judge Wilson firmly believed that the legislature had responsibility to draw congressional and state legislative maps, and he also didn't believe that the courts adequately analyzed the congressional map to see if it was, in fact, a partisan gerrymander or not. He's of a different point of view. Now, he also respects precedent that he wouldn't overturn a previous court's decision, but this case is different than last year's because now we're looking at whether last year's map, which was valid and enacted by the courts, put in place, only was meant to last for one cycle. This is where the lawyers are fighting over was it a 10-year map or was it a one-year map.

Brian Lehrer: What's the latest that we can expect this all to be resolved? Because honestly, candidates are already declaring their interest in running in these districts, and we are pretty anxious to start covering this because so much is at stake locally and nationally from who controls Congress next year. When will we confidently be able to say, "Hey, if you live in this part of Westchester, or Rockland, or Putnam, or Nassau, or Suffolk, or even Queens, you're in this person's district?"

Jeffrey Wice: Yes, this is a very difficult question, and it's an annoying one for candidates, incumbents, challengers, voters, funders, activists alike. Next year's primary cycle starts around March 1st when petitions are circulated to run in the June primary. That means working backwards, that the legislature has to either approve a commission map or a map of its own by sometime in early February. Working backwards from between November when the court might rule to January, February, time is running out. The Republicans want to delay the process to make it harder to get a new map. Democrats want to speed this litigation up to make it easier if the Court of Appeals upholds the appellate division decision. We've got timetables, we've got political races, we've got a whole bunch of balls up in the air right now that make it very hard to really know what will happen next, so we're taking this one step at a time.

Brian Lehrer: Let's take an example of one especially fraught district in our area and explain it a little bit to our listeners. This was detailed in Politico last month, so we're leaning on them for some of this. It says, "In 2022, in the 17th Congressional District as mapped by the court that's north of the city, Republican Mike Lawler defeated Democratic incumbent Sean Patrick Maloney. Mondaire Jones, who moved to Brooklyn when his Hudson Valley district was remapped to unsuccessfully run there, is now planning to challenge Lawler in this Westchester and Rockland district, as is Liz Whitmer Garrity, the Michigan governor, Gretchen Witmer's sister, Liz Whitmer Garrity, but her area wouldn't be in Lawler's district if the Senate maps are restored." My head is already exploding. "It would be in a Democratically controlled district." I think that's Pat Ryan's district, and that's just one of the districts. Politico also reported that Westchester County Executive George Latimer, a Democrat, was considering challenging Jamal Bowman in the 16th Congressional District, which is a little south of there, but under the Senate maps, he would live in a district now represented by George Santos. Again, my head is exploding within the explosion of my head having previously exploded. Do you think the confusion over district lines helps one party or another?

Jeffrey Wice: Well, that's hard to say because the Republicans who won last year, if the same map is kept in place, there's no guarantee, as you mentioned earlier in the show, that they'll be able to hold on given the volatility and the level of competition that's going to focus on New York given the stakes nationally over control of the House of Representatives. If the current map is kept in place, Republicans who were elected last year may or may not do as well as they did in 2022. Now, if there's a new map, we can certainly anticipate musical chairs and incumbents and candidates trying to determine what district they live in or where they want to run in. [inaudible 00:18:16] only requires the House of Representatives live in the state, but the optics of not living in your district are pretty bad if you're trying to run in a district that you're not currently living in, and voters always don't take too kindly to that. It's a case-by-case, candidate-by-candidate situation.

Brian Lehrer: Here's a nightmare scenario on top of the nightmare scenarios we've been describing. Listener texts, "If no one wins the majority of the electoral college, in other words, if the 2024 presidential election ends in an electoral college tie, which Congress will select the next president, the Republican Congress elected in 2022 or the one elected in 2024?" Do you know the answer?

Jeffrey Wice: I'm going to wager a guess that it's going to be up to the US Supreme Court to decide that because obviously, it will be litigated. The current Congress will be under Republican control through the end of 2024, and should the Democrats win the majority, they'll take office in early 2025. Whichever way you look at it, given the timetable and things we can't even imagine will take place in November and December of next year, that's going to be [chuckles] an issue that'll be shunted to the courts. We did see that kind of situation play out in 2020 between George Bush and Al Gore where we were looking at court action in the federal and state courts [inaudible 00:19:57] [crosstalk]-

Brian Lehrer: In 2000, yes.

Jeffrey Wice: - after 2000, so that's what I think will happen.

Brian Lehrer: Yes, and if something happens in December, it's the old Congress. If it happens in January, say January 6th just to pick a random date, then it's the new Congress. All right, we're going to leave it there. Go ahead.

Jeffrey Wice: We may see a situation of the Republicans trying to speed things up and the Democrat's trying to delay if the Democrats were the majority. It's a race to the courthouse, but [inaudible 00:20:28] who's going to be the tortoise or the hare. [chuckles]

Brian Lehrer: All right, we will be closely following these swing districts no matter how they get districted because control of Congress in 2024 runs through New York to be sure. My guest to help set the scene has been Jeffrey Wice, adjunct professor and senior fellow at the New York Law School where he directs the New York Census and Redistricting Institute. Jeff, thanks so much for coming on and explaining so much.

Jeffrey Wice: Thanks for having me on, and I guess to be continued.

Brian Lehrer: My head is exploding. Brian Lehrer on WNYC, much more to come.

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