The power grabs that will determine control of Congress

The success of an attempted Democratic power grab in New York will help determine control of the House next year.

It’s a counter to a similar move Republicans just pulled in North Carolina. And now the fate of the House is in the hands of a panel of New York judges next week.

A Wednesday hearing will air arguments over whether New York should be allowed to redraw its congressional map — a process that could lead to Democrats aggressively gerrymandering it to seize enough seats to tip the balance of power. It's by far the biggest outstanding question about control of the chamber after next year’s election.

A green light would further inflame the escalating legal and political war playing out over the last two years over the country’s congressional maps, empowered by court decisions removing the judiciary’s role in policing gerrymandering. North Carolina Republicans last month pulled off a mid-decade remapping with little precedent that will allow them to snatch at least three congressional seats next November.

And now Democrats in New York want to pull off the same move — and it wouldn’t just be a counterweight. A Democratic gerrymander of New York’s map could flip seats from Long Island to Syracuse, potentially netting the party double the number of districts Republicans will get out of North Carolina.

The national fight for the House comes down to a state-by-state battle for individual districts. Republicans currently hold a five-seat majority out of 435, and Democrats in New York could potentially gerrymander up to a half-dozen Republicans out of their seats if they get another crack at the map.

Gerrymandering is nearly as old as the republic itself, but what’s happening now is far from normal.

All the states with more than one congressional seat redraw their maps every 10 years to equalize the population across their districts after the decennial census.

But states typically only redraw their maps during the middle of the decade when compelled to by the courts. Redistricting is already the rawest exercise of political will, but mid-decade redistricting is even more cutthroat.

Before North Carolina, it had only been done once in recent history with any significant impact. Following the 2000 census, Texas’ Democratic-controlled state House and GOP-run state Senate couldn’t agree on a map, so a federal court imposed one that would go on to elect 17 Democrats and 15 Republicans in the 2002 elections.

But in that same election, Republicans won control of the state House. Then-Rep. Tom DeLay, the House GOP leader, pushed legislators in Austin to draw a new map now that the GOP had unified control of state government.

“I’m the majority leader,” DeLay said at the time, “and I want more seats.” (Republicans flipped six in the next election.)

In the 20 years since DeLay engineered that mid-decade redistricting, the courts have smoothed the way for such maneuvers.

The Supreme Court in 2019 removed any federal guardrails on partisan gerrymandering, leaving even more politicized state courts the only judicial arbiters of what’s fair or not when it comes to drawing maps for political gain.

In North Carolina, the GOP flipped control of its elected state Supreme Court in the 2022 election, just months after the court had found the state legislature’s congressional map was an impermissible partisan gerrymander. After the election, legislators made the unusual request to the court to revisit its decision, and — different justices, different ruling — the court reversed itself.

Six months later, Republicans supplanted the court-drawn map used in the last election — which would’ve been perfectly valid through the 2030 election — and replaced it with a partisan gerrymander that eliminates three Democratic seats and threatens the reelection of a fourth Democratic member.

Meanwhile, in New York, it’s not the partisan composition of the state’s highest court that’s changed, but its membership: Janet DiFiore, the former chief judge of the state Court of Appeals who sided with Republican appointees in overturning the map the Democratic-controlled state legislature passed last cycle, retired and was replaced by another Democratic appointee.

A few other states have ongoing legal challenges based on racial gerrymandering, which the Supreme Court ruled earlier this year is still impermissible. Individually, those cases affect the balance of power slightly, but nothing like North Carolina and New York.

Judges have struck down the congressional maps used in Alabama, Louisiana, Georgia and Florida for the 2022 elections as racial gerrymanders. Starting from the baseline of 222 Republicans and 213 Democrats elected in the last election, let’s say, conservatively, the racial gerrymandering cases move three seats from those states from the red column to blue, making Republicans’ majority 219-216.

Republicans can net three or four seats from North Carolina, but two of them were already among the closest races in the country — and one of those, the eastern North Carolina district held by Democratic Rep. Don Davis, is still competitive. But even giving them Davis’ seat would make the Republican advantage 223-212. That’s a six-seat majority.

So if Democrats flip six seats in New York, they would have the narrow majority, holding everything else constant: 218-217.

And Democrats want a map that would do just that.

They’d oust at least three of GOP Reps. Nick LaLota, Andrew Garbarino, George Santos and Anthony D’Esposito on Long Island, along with Reps. Nicole Malliotakis on Staten Island, Mike Lawler and Marc Molinaro in the Hudson Valley and Brandon Williams in Central New York.

How do we know that? Because they’ve already tried it.

The state legislature approved a map that Gov. Kathy Hochul signed into law to be used in the 2022 election before being thrown out by a court, which drew its own map, resulting in 15 Democrats and 11 Republicans being elected to Congress last fall. If the original map had been used, Democrats would’ve almost certainly won more seats, even though they underperformed up and down the ballot in New York.

Democrats are quick to point out that winning the court case wouldn’t automatically mean the state legislature would draw the map. In New York, the job first goes to an independent commission, which submits its plans to the legislature. The state legislature — which is dominated by Democrats — then decides whether to accept that map or draw its own, which is what it did last year.

“I see the situation in New York as holistically different” from North Carolina, said John Bisognano, the president of the National Democratic Redistricting Committee. “What the court case in New York is seeking is to return the process to a commission.”

On Long Island, Garbarino’s district on the South Shore would’ve been a Republican seat, but LaLota and Santos would’ve been running in bluer territory. D’Esposito, who represents the most Democratic district currently held by a Republican by 2020 presidential vote margin, would’ve actually been in a slightly more favorable seat.

But Malliotakis’ original Staten Island district would’ve been difficult for Republicans to hold, and Lawler’s and Molinaro’s also would’ve been more Democratic. Same for Williams in a Syracuse-based district. Even in a good year for the New York GOP, it’s likely only Garbarino and D’Esposito would be remaining out of the seven Republicans potentially on the chopping block again if Democrats get to reshape the state’s districts.

And that was with Hochul only beating then-GOP Rep. Lee Zeldin by 6 points at the top of the ticket. Now-President Joe Biden won the presidential election in 2020 by 23 points in New York — and though a new poll shows a much closer race in a likely rematch with former President Donald Trump, Democrats aren’t likely to face such stiff headwinds again next year.

The big hearing in Albany is Wednesday. The plaintiffs are pushing the Court of Appeals for a decision that would allow the map to be redrawn before next year’s primaries, which are expected to take place in June.