(Cross-posted from The Albany Project.)
A federal three-judge panel (Judges Raggi and Lynch of the Second Circuit, and Judge Irizarry of the Eastern District) heard arguments and comments today about the plan that Magistrate Judge Mann and Professor Persily proposed. I went to the hearing, and thought I'd share my notes, organized roughly by what various people complained about.
I assume familiarity with the current maps, and the proposed maps (see http://www.thealbanyproject.com/...). Judge Irizarry spoke very little, so my assessments of the Court's views are mostly what I took from Judges Raggi and Lynch.
LONG ISLAND
The Republicans (in particular the Senate majority) want to keep Rep. King safe by orienting the 2nd and 3rd districts north-south as they are now, instead of east-west. The Court didn't seem to buy any of their arguments.
First, they argued that preservation of district cores should be principal among the various redistricting principles that the Court applies after satisfying constitutionality and the Voting Rights Act, since core-preservation can be applied more neutrally than other factors like compactness. Raggi pointed out, correctly I think, that it doesn't make much sense for core-preservation to be a critical factor, since the reduction in number of districts forces at least some district cores to be rearranged. Lynch seemed to think that compactness was just as neutral as core-preservation, and that consolidation of "communities of interest" was more important.
To Lynch's point, Counsel tried arguing that the existing congressional districts do form communities of interest, in that residents form expectations and common interests based on who represents them. But Lynch clearly thought that "community of interest" means a community that would be recognizable outside the political context — i.e., the North Shore versus the South Shore of Long Island.
Counsel also brought up a notion of deference to the old plan's orientation, but someone (one of the judges maybe?) easily distinguished this case, in which the legislature has produced no new map, from the recent Texas case, in which the Supreme Court required a district court to base its map off a new map that had been passed by a legislature.
The Court seemed very comfortable with Judge Mann's decision to draw the map in an incumbent-blind manner. But, they don't seem ready to say that no court could ever consider incumbency. Factors in favor of incumbent-blindness that emerged were: The short timeline to produce a map; the reduction of number of districts, which means that the Court would have to pick favorites among incumbents; and the ability of incumbents to run in districts where they don't live.
I strongly doubt the Court will change the Nassau lines.
GREENPOINT
The Ramos intervenors argued that Greenpoint should be returned to the Velazquez district. (Judge Lynch doesn't like referring to districts by name of incumbent, but I think it's the clearest way.)
The biggest problem with this idea is that, if moving largely-White Greenpoint into Velazquez has the effect of lowering the Hispanic vote from the district's current level, it could be considered "retrogression," illegal under §5 of the Voting Rights Act. Counsel said that he had submitted a specific switch that retains the racial composition of the Velazquez district, but the Court seemed dubious. I haven't looked at the specific proposal, but it seems like a legitimate concern to me, given what a marginal minority district it is.
Counsel also advanced a silly argument that the titans of industry living on the Upper East Side would be unfavorable to environmental cleanup of Newtown Creek, a cause which I understand Velazquez to have championed. Nobody seemed to buy this argument. Judge Lynch pointed out that people in Sunset Park (Velazquez) have no greater interest in Newtown Creek than people on the UES (Maloney) do, and that you have to extend the UES in some direction since there aren't enough people for a full district.
The Court seemed to think it'd be hard to put Greenpoint back with Velazquez without having serious knock-on effects. All in all, I doubt this gets changed.
ONE BROOKLYN BRIDGE PARK
The proposed plan placed this dud of a condo development (http://www.onebrooklyn.com/) into the Nadler district instead of into the Velazquez district with the rest of Brooklyn Heights. A few people from local community organizations proposed to re-unite it with the neighborhood, while switching a couple blocks somewhere in southern Brooklyn into the Nadler. This switch wouldn't change the population total at all.
None of the judges seemed opposed to this minor change, and it wouldn't surprise me if they accepted it.
BRONX AND SURROUNDING PARTS OF MANHATTAN AND QUEENS
The Dominican-American National Roundtable proposed a single district that would start in Washington Heights, snake through the Bronx, and end up in Jackson Heights, Queens, having connected through the Bronx Zoo, part of the Whitestone Bridge, and Citi Field. Many community representatives and leaders spoke.
From what I could tell, they didn't suggest a plan for the districts surrounding this beast. I think the way it would probably play out is that Rangel would get an unusually shaped district stretching way up into Westchester, Serrano would keep a South Bronx district, and Crowley's district would be replaced by the DANR district. But I can't say that the numbers on that idea actually work out, since DANR didn't bother to draw a whole map.
A major theme was that Hispanics can't elect candidates of their choice from the Bronx, and the Court was clearly bothered by loose talk about "disenfranchisement." As all three judges pointed out in various ways, there are two majority-Hispanic districts already in the Bronx (Serrano and Rangel). And Hispanics are also a big plurality of Crowley's proposed district. There's some truth to the idea that Hispanics need a ≈60% majority district in order to force through a candidate (because of low citizenship rates and low turnout rates even among citizens), but one judge pointed out that Velazquez gets elected with far less than 60% Hispanics.
The judges also doubted that the DANR district was justifiable on grounds other than race or ethnicity (as the Shaw line of cases requires), and the proponents did very little to give the judges a reason to hold in their favor. Basically, I heard that some Bronx people show up to some (ethnic-based) meeting in Queens, that some people in both places moved out of Manhattan to get cheaper rents, that people in both places all attend the same churches (the judges were incredulous), and that there's some kind of supermarket organization that operates in both places.
Given that the judges clearly thought that Hispanics have opportunity to elect their candidates in the Serrano and Rangel districts, their reticence to adopt a racial gerrymander that's not required by the VRA, and the technical difficulty in conforming surrounding districts to the DANR monster, I think there's very little chance that the Court will change the Bronx recommendation.
The NAACP wants a Black district in Harlem. And I want a pony. The fact is that Blacks have lost their Harlem district, not because some discriminatory judges are taking it away from them, but rather because Harlem is now a largely Hispanic area where there are not enough Black people to constitute a district. There might be some conceivable way to make a Black district out of Central Harlem and some places in the Bronx and Westchester, but it didn't sound to me like the Court wanted to bend over backwards to make an unnatural Black district at the expense of the local Hispanic majority. Sorry, Charlie [Rangel]!
SOUTH BROOKLYN
The Orthodox showed up to support a scheme that would create a single district in South Brooklyn. (Actually, most of them supported this idea, but at least one guy, maybe from a different faction, was happy with the current Nadler arrangement.)
I'm not generally sympathetic to the politics of the Orthodox, but I think they actually made some decent points here. The main thing is that they are a distinctive, compactly settled community. Unlike the Bronx Hispanics who (purportedly) need a contorted set of districts to obtain political power, the Orthodox (or, more generally, conservative Whites in South Brooklyn), are prevented from obtaining political power only because the legislature (and now the magistrate judge) has traditionally insisted in breaking southern Brooklyn into an array of spindly districts dominated by Blacks or other boroughs.
One problem that the judges had was that it might be hard to find the Orthodox areas using Census data. One speaker suggested looking for areas with high percentages of White children, which Judge Lynch seemed dubious about. I think this concern is a frankly little silly. There's no reason for the Court to limit itself to Census data, and it's not exactly a secret that a bunch of Orthodox live in Midwood and Borough Park.
A bigger problem might be that creating an Orthodox district might cause VRA problems elsewhere in the City. I haven't looked at the whole Orthodox plan (see https://ecf.nyed.uscourts.gov/...), so I don't know if they've found a solution. As a matter of principle, I basically agree with the Orthodox that the Law should not force district-creators to prefer Black districts over Orthodox Jewish districts, but I think that, if push comes to shove, the Court will follow an interpretation of the VRA that preserves the status quo.
The Orthodox also didn't have their story as straight as it could have been. They seemed to have factions advocating different strategies; some speakers weren't clear whether their argument depended on Jews being a "race"; their proposal isn't at the block-level, so it's not precisely equal-population (and they pointed this flaw out to the judges!); and they weren't always clear about whether the existing map is good for them (it's not).
MANHATTAN
A few speakers from the Upper West and East Sides spoke in favor of the proposal. They really like being split between Nadler and Maloney. I thought their argument that the UWS and UES are profoundly different was kinda silly, in light of the UWS being connected to Bensonhurst.
BUFFALO
One guy (whom Judge Raggi recognized as a poster from the Daily Kos) suggested moving Niagara Falls out of the Buffalo district in order to make a single district within Erie County. I doubt the judges will think the county lines are more important than the similarities between the city-dwellers of Buffalo and Niagara Falls.
OVERALL
I doubt the judges will change much — probably just the Brooklyn Heights adjustment, which really does make a lot of sense. They clearly have no taste for the scraggly Manhattan/Bronx/Queens Hispanic district, and I think that creating the Southern Brooklyn district would require more aggressive dilution of the Brooklyn VRA districts than they'll have the stomach for.
I also don't see much cause for the proposed plan to be appealed to the Supreme Court (the next step after a three-judge district court panel). I think New Yorkers should be pretty confident that Judge Mann's proposal will be very, very close to the districts that get used.