Staten Island Goes To SCOTUS

In 2010, the Daily Show had a segment on how there were Supreme Court Justices from four of the five boroughs of New York City: Justice Scalia was from Queens, Justice Ginsburg was from Brooklyn, Justice Sotomayor was from the Bronx, and Justice Kagan was from Manhattan. But as Jon Stewart pointed out, there was no Justice from my home borough of Staten Island. I quipped at the time I was available, but I suppose I was delusional even back then.

If SCOTUS won’t go to Staten Island, then Staten Island should go to SCOTUS. And so it has come to pass. I have blogged twice about a case that would splice the boundaries of Staten Island’s congressional district. Since then, the New York Appellate Division has declined to impose a stay, and the New York Court of Appeals (the highest court in New York) found it lacked jurisdiction. Nicole Maliotakis, the Representative from New York has filed an emergency petition in the Supreme Court.

Here is the summary of the argument:

Congresswoman Nicole Malliotakis and the Individual Voter Applicants (collectively, “Applicants”) request a stay of the order of the Supreme Court of the State of New York enjoining state officials from conducting any election under the State’s congressional map. The trial court’s order has thrown New York’s elections into chaos on the eve of the 2026 Congressional Election, which is set to begin on February 24, 2026. Applicants respectfully request emergency relief from this Court by February 23, 2026, so that the election can begin on February 24, under the legislatively adopted congressional map. Applicants presented this stay request to both the New York Appellate Division and Court of Appeals, asking for relief by February 10 so Applicants could give this Court a reasonable opportunity to grant them relief before February 24, if necessary. The New York Court of Appeals yesterday determined it lacks jurisdiction to give relief, and the Appellate Division has not yet acted. Petitioners are keenly aware of how seriously this Court takes the principle that “courts should ordinarily not alter the election rules on the eve of an election,” Abbott v. League of United Latin Am. Citizens, 146 S. Ct. 418, 419 (2025) (citation omitted), so they come to this Court before there is any suggestion that the election has begun, which is scheduled to occur on February 24. . . .

This Court is likely to reverse the trial court’s order if it were upheld by the New York appellate courts on any of three grounds. First, the decision clearly violates this Court’s Equal Protection Clause case law by prohibiting New York from running any congressional elections until it racially gerrymanders CD11 by “adding [enough] Black and Latino voters from elsewhere,” until the Black and Latino voters in CD11 control contested primaries and win most general elections. Although Applicants repeatedly told the trial court that racially reconfiguring CD11 would violate this Court’s binding strict-scrutiny framework, the trial court ignored this argument. This Court summarily reversed in less egregious circumstances in Wisconsin Legislature v. Wisconsin Elections Commission, 595 U.S. 398 (2002) (per curiam). Second, the trial court’s decision violated due process and related party-presentation principles by deciding the case based upon a theory that no party briefed, and that the Williams Respondents did not even present evidence to satisfy. Those are more extreme circumstances than those at issue in this Court’s recent summary reversal in Clark v. Sweeney, 607 U.S. 7 (2025) (per curiam). Finally, the trial court violated the Elections Clause under Moore v. Harper, 600 U.S. 1 (2023), by adopting an unbriefed, atextual test to invalidate a legislatively-adopted congressional map.

The timing here supports Malliotakis’s application. The nomination process begins on February 24. The lesson from Texas and Cailfornia is not to change maps on the eve of the election. This isn’t quite Purcell, but as I noted, the midterm primary date is the relevant deadline.

All equitable considerations call out for an immediate stay. Under New York law, the 2026 Congressional Election begins on February 24, 2026, when nominating petitions can start circulating. Congresswoman Malliotakis and her individual voter supporters who make up the Applicants have a right to begin their election activity for this federal office on that date. Yet, under the trial court’s order, the New York Board of Elections cannot take any steps to hold the election under the New York congressional map, unless and until CD11 is racial gerrymandered. At the same time, the trial court’s remedial mechanism—requiring New York’s Independent Redistricting Commission (“IRC”) to racially gerrymander CD11—is automatically stayed by operation of state law. That is a recipe for unconstitutional chaos, with no map in place and uncertainty as to whether nominating petitions can start circulating on February 24, with no end in sight. Applicants and the People of New York have the right to conduct their congressional elections under the lawful map that the New York Legislature adopted starting on February 24, free from a judicial mandate that violates multiple provisions of the United States Constitution. While Applicants had hoped—and still hope—that the New York appellate courts put an end to this unconstitutional mischief, they come to this Court now, so that this Court can provide relief before February 24, if the New York appellate courts do not do so.

I think is it relevant that the New York Court of Appeals dragged their feet after the Supreme Court’s GVR in Roman Catholic Diocese of Albany, as well as the Yeshiva University case. This track record does not inspire much confidence that the New York Court system will figure everything out in a few weeks.

The parties did not ask for an administrative stay, so the only thing for Circuit Justice Sotomayor to do is refer the matter to the Court.