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Gillingham, Allison

DigitalCommons@NYLS 
NYLS Community News History & Archives 
11-28-2023 
NYLS Patent Law Clinic Achieves Win for First-Time Inventor 
Allison Gillingham 
Marketing&Communications@nyls.edu 
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Recommended Citation 
Gillingham, Allison, "NYLS Patent Law Clinic Achieves Win for First-Time Inventor" (2023). NYLS 
Community News. 77. 
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Since 1891
WE ARE NEW YORK’S LAW SCHOOL
The Patent Law Clinic (PLC), a clinic within The Joe Plumeri Center for Social Justice and Economic Opportunity at 
New York Law School (NYLS), recently secured a United States patent for their client, Mr. Karl C. Clarke. Mr. Clarke’s 
invention is a new type of exercise device, tailored for strengthening the upper body. It is portable and easier to use 
than existing gym equipment.
The U.S. Patent and Trademark Office (USPTO) patent approvals process can be challenging and last several years. 
As a result, a number of PLC teams worked on the patent application over different academic years, including Sarah 
Glassman ’24, Waresa Islam ’24, Hanjun Liu ’23, Rey Llena ’24, Elizabeth Nesheiwat ’23, and Joseph Principato ’22.
Though the application was initially rejected, the PLC students worked with Professor Shahrokh (Seve) Falati ’08, 
the clinic’s director, to address the criteria and overcome the examiner’s rejections in order to successfully obtain the 
patent for their client.
Reflecting on the experience, clinic student Hanjun Liu ’23 said, “There was so much we learned during the 
prosecution of this patent application. We initially thought we faced a dead end at one stage, but Professor Falati 
encouraged us and helped us find amendments and arguments the examiner was comfortable with accepting. 
The Patent Law Clinic was one of my favorite, and most rewarding, experiences in law school and to successfully 
prosecute this patent application was one of my team’s highlights.”
Mr. Clarke was very pleased with the outcome. “This has been quite the patent journey,” he said. “I contacted the 
Patent Law Clinic because I knew I should protect my idea. I had a vague idea of what should be done, but as a 
first-time inventor, I was working in the dark trying to navigate the process on my own. The clinic was exactly what I 
needed, and they delivered! To work directly with the law students and Professor Falati for the past 2–3 years was a 
blessing. Thank you to New York Law School, Professor Falati, and your students! Inventors appreciate you keeping 
the door open for us all.”
He visited the law students last month to collect his issued U.S. patent and discussed his options for 
commercializing his now patented invention with current PLC students and Professor Falati.
Professor Falati said, “It was a pleasure for our Patent Law Clinic here at NYLS to work with Mr. Clarke on his 
invention. I am glad both the law students and our client enjoyed the experience and found it to be enriching.”
NYLS Patent Law Clinic Achieves 
Win for First-Time Inventor
Allison Gillingham  •  Published November 28, 2023
Find more NYLS stories at news.nyls.edu.
Experiential Learning at New York Law School’s Plumeri Center 
Experiential learning is an integral part of the NYLS education. The Plumeri Center is NYLS’s home for experiential 
learning, and the Center houses our many clinics, including the Asylum Clinic. Through our top-tier programs, we offer 
students the opportunity to turn theory into practice: Starting in their first year, students participate in counseling, 
interviewing, and negotiating exercises in their foundational Legal Practice course. During their upper-level years, 
students may select from a wide array of experiential learning courses to hone their lawyering skills. Together with a 
comprehensive legal education, these experiential offerings prepare our students for careers in advocacy.
Rey Llena ’24, Karl C. Clarke, Sarah Glassman ’24, and Professor Shahrokh 
Falati ’08


English

NYLS Patent Law Clinic Achieves Win for First-Time Inventor

November 15, 2023
Despite the absence of statutory amendment, the law of arbitration continues to evolve in ways that were difficult to predict a generation ago. As Executive Vice President and Chief Legal Officer of the American Arbitration Association, Eric P. Tuchmann \u2794 is in a unique position to synthesize the various developments in the United States and abroad and to offer his observations on what has happened and what is to come.https://digitalcommons.nyls.edu/adr_events/1051/thumbnail.jp

New York Law School

DigitalCommons@NYLS 
Alternative Dispute Resolution - Past Events Alternative Dispute Resolution Skills Program 
11-15-2023 
Developments and Trends in Domestic and International 
Arbitration: What Practitioners Need to Know 
New York Law School 
Follow this and additional works at: https://digitalcommons.nyls.edu/adr_events 
I Alternative Dispute Resolution Skills Program 
DATI 
Wednesday November 15, 2023 
TIME 
5:30 p.m.-6:45 p.m. ET 
PLACE 
In person or online streaming 
Events Center, Second Floor 
New York Law School 
185 West Broadway, New York, NY 10013 
COST 
Free of charge 
RSVP 
www.nyls.edu/ADRrsvp1 
CLE 
1.5 credits in Areas of Professional Practice 
(NY transitional and nontransitional) 
Despite the absence of statutory 
amendment, the law of arbitration 
continues to evolve in ways that were 
difficult to predict a generation ago. As 
Executive Vice President and Chief Legal 
Officer of the American Arbitration 
Association, Eric P. Tuchmann '94 is 
in a unique position to synthesize the 
various developments in the United 
States and abroad and to offer his 
observations on what has happened and 
what is to come. 
Eric P. Tuchmann '94, Executive Vice President, 
Chief Legal Officer, and Corporate Secretary, 
American Arbitration Association 


Developments and Trends in Domestic and International Arbitration: What Practitioners Need to Know

Murray, Justin

Redress for Wrongful Convictions: A Response to Professor Medwed

Leonard, Arthur S.

DigitalCommons@NYLS 
Other Publications Faculty Scholarship 
6-22-2023 
Judge Strikes Down Arkansas Ban on Affirming Care for Youth 
Arthur S. Leonard 
Follow this and additional works at: https://digitalcommons.nyls.edu/fac_other_pubs 
© GAY CITY NEWS  2023  |  SCHNEPS MEDIA,  ALL RIGHTS RESERVED  F R E E  |  VOLUME TWENT Y TWO, ISSUE THIRTEEN |  JUNE 22 - JUNE 28, 2023
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LEGAL
BY ARTHUR S. LEONARD
T he Arkansas Legislature on April 6 overrode Republican Governor Asa Hutchinson’s veto of Act 626, a measure 
that prohibits gender-affirming care 
for minors and forbids health care pro-
viders from referring minors to others 
(presumably out of state) to get such 
care. An immediate lawsuit by the 
ACLU prompted US District Judge 
James M. Moody, Jr., to issue a pre-
liminary injunction that blocked the 
law from going into effect. On June 20, 
Judge Moody granted the plaintiffs’ 
motion for summary judgments on the 
merits.
“Act 626 is unconstitutional,” he 
wrote to begin a lengthy opinion. “The 
Court determines that Plaintiffs are 
entitled to judgment in their favor on 
all claims. The State is permanently 
enjoined from enforcing Act 626.”
This decision is subject to appeal, 
which the state will likely do. But the 
state had previously appealed the pre-
liminary injunction to the Eighth Cir-
cuit Court of Appeals, which backed 
up Judge Moody.
Arkansas was the first state to 
pass a ban on gender-affirming care 
for minors, and this is the first fed-
eral district court decision to issue a 
permanent injunction against enforc-
ing such a law. Preliminary (pretrial) 
injunctions have been issued in three 
other states blocking such laws from 
going into effect as litigation proceeds, 
and in one state — Oklahoma — the 
state has agreed not to enforce the law 
while the case is being litigated. The 
accumulated preliminary injunction 
decisions, while not binding rulings on 
the merits, strongly signal the way the 
wind is blowing on this issue. Repub-
lican legislators looking for a wedge is-
sue seem oblivious to the fact that they 
are passing blatantly unconstitutional 
laws and buying lawsuits that they 
will likely lose.
In the case of Arkansas, the state’s 
defense of the law was further compli-
cated by their choice of expert witness-
es, none of whom impressed Judge 
Moody by their testimony during sev-
eral days of hearings on the plaintiffs’ 
summary judgment motion.
The plaintiffs are four transgender 
minors and their parents, and a doctor 
who provides gender-affirming care to 
minors. There are three constitutional 
claims: violation of the equal protection 
rights of the transgender minors, the 
due process rights of their parents, and 
the free speech rights of the doctors.
Judge Moody agreed with the plain-
tiffs that the law discriminates based 
on gender identity and sex, so it is 
presumed unconstitutional under the 
Equal Protection Clause of the 14th 
Amendment, placing the burden on 
the state to show that it has a substan-
tial interest that justifies totally ban-
ning the treatments involved — puber-
ty blockers, cross-sex hormones, and 
gender-affirming surgery — for minors 
diagnosed with gender dysphoria.
The judge also agreed with the plain-
tiffs that the law violates the rights of 
the parent plaintiffs to make medical 
decisions and obtain care they deem 
necessary for their children. He iden-
tified this as a fundamental right un-
der the Due Process Clause of the 14th 
Amendment, which means the “strict 
scrutiny” test applies, and the state 
must show a “compelling interest” 
and that the law is narrowly tailored 
to achieve that interest without other-
wise violating due process rights.
Finally, he agreed with the plaintiffs 
that the ban on physician referrals was 
a content-based prohibition of speech, 
which is also subject to strict scrutiny.
As to each of these legal theories, 
Judge Moody found that the state 
failed to meet its burden of proof.
Most significantly, Judge Moody 
made detailed findings of fact, which 
are normally accorded great deference 
by appellate courts, on the many con-
tested points in the ongoing legislative 
debates about gender-affirming care. 
Rejecting the state’s argument that it 
is acting to prevent minors from be-
ing subjected to “experimental treat-
ments” that are not proven to be safe 
and effective, he wrote: “Transgender 
care is not experimental care.” Instead, 
he credited expert testimony that such 
care has been provided to thousands 
of people, including both adults and 
minors, and that the care has been 
shown to be safe and effective by nu-
merous studies and the experience of 
practitioners, as well as parents who 
have noted the beneficial effects of 
such care on their adolescent children.
The judge observed that the stan-
dards of care published by the World 
Professional Associate for Transgender 
Health (WPATH) and the Endocrine 
Society anticipate and effectively deal 
with many of the non-factual claims 
made by proponents of this sort of leg-
islation. They require a diagnosis of 
gender dysphoria, a condition listed in 
the Diagnostic and Statistical Manual 
of the American Psychiatric Associa-
tion (DSM), which includes a finding 
that an individual’s gender dysphoria 
is persistent over a significant period 
of time, prior to any medical treatment 
beginning, that treatment is limited 
to “social transition” until the onset 
of puberty (usually around age 8 for 
those identified as female at birth and 
age 9 for those identified as male at 
birth), and that cross-sex hormones to 
begin reconfiguring the body to accord 
with the individual’s gender identity is 
usually not undertaken until age 14 
or later, after several years on puberty 
blockers, which are not used in most 
cases because the patients don’t come 
to doctors until they are already well 
into puberty.
Testimony from experienced practi-
tioners supported the conclusion that 
most minors don’t “come out” to their 
parents as transgender until they are 
well into adolescence, and then the 
process of diagnosis means that many 
don’t start on cross-sex hormones un-
til age 16 or later.
Furthermore, the state could provide 
no factual evidence that the WPATH 
standards are not being followed in 
Arkansas. There was no evidence 
that minors were being “rushed” into 
gender-affirming care without careful 
evaluation, diagnosis, and monitoring 
of treatment, contrary to the claims 
of Republican legislators pushing the 
measure. And there was no evidence 
that those who began hormone treat-
ment came to regret it and attempt 
to “de-transition.” The “de-transition” 
phenomenon occurs mainly with 
adults who transition later in life, and 
people who abandon treatment are 
usually doing so for economic reasons, 
not necessarily because their percep-
tion of their gender has changed.
Judge Moody found that if the Act 
went into effect it would cause “irrepa-
rable harm to the Plaintiff adolescents, 
Plaintiff parents and Plaintiff doctor.” 
The harm was physical, emotional, 
and financial. All of the parental plain-
tiffs testified that the enactment of Act 
626 had led them to contemplate hav-
ing to move out of state, or to travel out 
PHOTO BY AP PHOTO/ANDREW DEMILLO
Dylan Brandt speaks at a news conference outside the federal courthouse in Little Rock, Ark., July 21, 2021.
Judge strikes down Arkansas ban on affirming care for youth
➤ ARKANSAS, continued on p.46
46
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of state periodically to bring their child 
to a state where they could obtain the 
care on a continuing basis. In either 
case this would impose significant fi-
nancial hardship on those families.
“For those adolescents who are al-
ready being treated with puberty 
blockers or hormone therapy and who 
would be forced to discontinue treat-
ment,” Moody wrote, “experts on both 
sides agree that the harms are se-
vere.” Indeed, Dr. Levine, the state’s 
only really qualified expert, “described 
the psychological impact of cutting 
off gender-affirming medical care for 
those currently receiving it as ‘shock-
ing’ and ‘devastating.’ He testified he 
would expect doctors to ‘find a way’ 
to help those patients, even providing 
treatment in violation of the law.”
The state’s defense of the statute 
suffered greatly from their choice of 
expert witnesses. The only one with 
clinical experience providing gender-
affirming care, Dr. Stephen B. Levine, 
had started a gender identity clinic 
in Ohio in 1974 and has been treat-
ing transgender patients continuously 
since then. He is not opposed to gen-
der-affirming care in general, but is 
opposed to people, especially minors, 
being rushed into irrevocable treat-
ments without careful diagnosis and 
other safeguards, but he could provide 
no evidence that the kind of treatment 
he opposed was taking place in Arkan-
sas. In fact, wrote Judge Moody, “He 
does not know how care is provided 
by doctors in Arkansas,” and he “does 
not support banning gender-affirming 
medical care for adolescents with gen-
der dysphoria.” Judge Moody found 
him to be “a very credible witness who 
struggles with the conflict between his 
scientific understanding for the need 
for transgender care and his faith.”
The state really blundered by pre-
senting Dr. Mark Regnerus as an 
expert witness. Regnerus is a soci-
ologist, not a medical doctor, who was 
thoroughly discredited as an expert 
on gay parenting when he appeared 
in cases defending bans on same-sex 
marriage. He testified that the support 
by medical professional associations 
for gender-affirming care is ideologi-
cal, not scientific, but the court found 
that “Professor Regnerus’ testimony 
did not offer any support for his con-
clusion, and the Court finds there is 
no evidence to support this assertion.” 
The plaintiffs’ counsel did a great job of 
discrediting Regnerus, leading Judge 
Moody to include a lengthy footnote cit-
ing published court decisions in which 
Regnerus’ “expert” testimony had been 
rejected by courts in the marriage 
litigation a decade ago. The state’s at-
torneys must have been pretty desper-
ate to find experts to have presented 
somebody with this track record.
The state also presented as an ex-
pert Dr. Patrick W. Lappert, a plastic 
surgeon with no experience regarding 
gender-affirming care. His testimony 
was also largely irrelevant because 
Judge Moody found that surgeons in 
Arkansas do not provide gender-af-
firming surgery for minors, so there 
was no reason for the state to ban it.
The plaintiffs’ experts, by contrast, 
were all experienced practitioners who 
were apparently well-versed in the sci-
entific literature and had cumulatively 
provided health care to thousands of 
transgender patients. “Plaintiffs’ ex-
perts’ extensive experience, their tes-
timony in court, and their demeanor 
and responsiveness to questions asked 
by both sides and the Court, show that 
all four of Plaintiffs’ expert witnesses 
have deep knowledge of the subject 
matter of their testimony and were 
fully qualified to provide the opinion 
testimony they offered. They have pro-
vided credible and reliable testimony 
relevant to core issue in this case,” 
wrote Judge Moody.
As has already come up in the pre-
liminary injunction rulings in several 
other states, the states’ attempt to rely 
on how this issue is being treated in 
Europe fell flat before Judge Moody. 
While several European countries 
have taken steps to regulate more 
closely the circumstances under which 
minors get gender-affirming care, af-
ter careful evaluation of the experience 
of providing such care in their coun-
tries, none of them have been moved to 
adopt a categorical ban.
“Rather than protecting children 
or safeguarding medical ethics,” the 
judge concluded, “the evidence showed 
that the prohibited medical care im-
proves the mental health and well-be-
ing of patients and that, by prohibiting 
it, the State undermined the interests 
it claims to be advancing… The tes-
timony of well-credentialed experts, 
doctors who provide gender-affirming 
medical care in Arkansas, and fami-
lies that rely on that care directly re-
futes any claim by the State that the 
Act advances an interest in protecting 
children.”
➤ ARKANSAS, from p.44
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Judge Strikes Down Arkansas Ban on Affirming Care for Youth

Wice, Jeffrey M.

DigitalCommons@NYLS 
Redistricting Roundtable Updates NY Census and Redistricting Institute 
7-5-2023 
July 5 Roundtable Update 
Jeffrey M. Wice 
Follow this and additional works at: https://digitalcommons.nyls.edu/redistricting_roundtable_updates 
 
 
 
N.Y. CENSUS & REDISTRICTING ROUNDTABLE UPDATE 
  
LITIGATION 
 
Broome County: Tokos v. Broome County Challenge Before Appellate 
Division; County Challenges Use of Prisoner Adjusted Data 
  
On June 23, in the Appellate Division (3rd Department), Broome County filed a brief arguing that 
the lower court’s decision should be revised, and the complaint should be dismissed. 
  
This case represents the first major challenge to the 2021 Municipal Home Rule Law that 
created new redistricting criteria to be followed by local governments. It is also the first local 
government challenge to the law enacted in 2010 that requires local governments to relocate 
prison populations. The prisoner reallocation law was upheld in 2010 after several state 
senators challenged it in the state courts. It has not been challenged again until this case. 
  
The county contends that because the plaintiffs were seeking to invalidate or effect the 
candidate designations for the legislature, Election Law §16-102 should apply to this case. 
Therefore, the county asserts that the statute of limitations has expired as the action was 
commenced more than 14 days after the last day for filing designating petitions for this year’s 
legislative races. 
  
Second, the County argues that the plaintiffs lack standing because (1) they are not individuals 
who are currently incarcerated in a prison outside of the county and (2) they have not alleged 
that they reside in districts that were impacted by the failure to use the prisoner adjusted data 
set. Furthermore, the county argues that plaintiff Shirley Cothran lacks standing to challenge the 
division of the Town of Maine as she does not reside in the town, and the remaining plaintiffs 
lack standing on this issue as they have not pled sufficient facts to establish injury. 
  
Third, the county argues that the data set used by the legislature was proper because, the 
County contends, Article II, Section 4 of the state constitution, Election Law §5-104, and the 
Municipal Home Rule Law (MHRL) do not require the county to use the prisoner adjusted data 
set. Furthermore, the county contends that even if the legislature had used the prisoner 
adjusted data set, the deviation would only exceed the 5% rule by .34%, and the lower court 
stated “it could not say that such a minor deviation…did not constitute substantial compliance 
with the statute that safeguards the one person one vote principle.” 
  
Fourth, the County asserts that the court should reject the plaintiff’s expert opinion because 
Professor Krasno’s opinion repeatedly states his interpretation of MHRL §34 which is not proper 
as this is a question of law and should be determined by the court. 
  
Lastly, the County argues that the districts comply with MHRL §34(4) as the map creates 
competitive districts, maintains communities of interests, and maintains cores of existing 
districts. Additionally, the county states that the map “was subject to community input, approved 
by a bipartisan majority of the redistricting committee and approved by the democratic County 
Executive.” The county asserts that this input shows that the process did not exclude 
participation by the minority party and is evidence that the lines were not drawn to gerrymander 
districts. 
  
Ballot Access: N.Y. Files Response in U.S. Supreme Court 
  
From Ballot Access News by Richard Winger, reproduced with permission. 
On June 30, the New York State Board of Elections filed its response in Libertarian Party of 
New York v State Board of Elections, 22-893. 
 
Here it is. This is the case that challenges the ballot access changes made in 2020. The 
changes were: (1) tripling the statewide independent petition from 15,000 signatures to 45,000 
signatures, without expanding the six-week petitioning period; (2) making the distribution 
requirement much more severe; (3) changing the definition of a qualified party from one that 
polled 50,000 votes for Governor, to one that polled 2% of the vote for the top of the ticket office 
every two years. 
 
The brief has nothing to say about the fact that when New York in 2020 first required a party to 
poll a certain share of the vote for president, New York became one of only five states to force 
qualified parties to perform in the presidential race. 
 
The brief implies that the 2020 changes were to “update” a “century-old” requirement. It says 
that the 15,000 signature requirement had been passed in 1922. That is factually wrong. The 
1922 legislature did not change the number of signatures. The petition had been set at 12,000 
in 1918, and then it was raised in 1971 to 20,000, and then in 1992 lowered to 15,000. The text 
of the brief says the 15,000 signature requirement was set “more than a century ago”, but 
footnote two admits that the 15,000 was set in 1992. But only a careful reader would catch the 
contradiction. 
 
The brief says that the old petition requirement placed “no meaningful burden” on petitioning 
groups. Actually, the old law prevented the presidential candidate who placed third in the nation 
from being on the New York ballot in 1936, 1956, 1972, 1976, and 2004. 
The brief says that under the old New York law, the state faced the problem of “ballot clutter” 
and “voter confusion”, but the brief does not single out any year in which the ballot was too 
crowded. Instead, it says repeatedly that between 1996 and 2020, there were fourteen different 
unqualified parties that used the statewide petition, but that period includes 13 different election 
years. 
 
The brief says the New York definition of a qualified party is “in the middle of the pack,” and it is 
true that the median vote test of the 50 states is 2%, and New York’s vote test is 2%. But, that 
ignores the fact that it is far more difficult for a minor party to poll 2% for president than for other 
statewide offices. The only minor parties that have polled as much as 2% of the national 
presidential vote in the last 100 years are the Progressive Party of 1924, the Socialist Party of 
1932, the States Rights and Progressive Parties of 1948, the American Party of 1968, the 
Reform Party in 1996, the Green Party in 2000, and the Libertarian Party in 2016. 
The brief says New York had to increase the requirements to avoid wasting money on minor 
party candidates in the new public funding program, without mentioning that the Second Circuit 
had already ruled in a Connecticut case that states don’t need to give money equally in public 
funding programs. 
 
As to the short petitioning window, the brief says the U.S. Supreme Court seemed to approve of 
a 25-day petitioning window in California in Storer v Brown. Actually, the U.S. Supreme Court 
did not uphold the California independent petitioning period; it remanded the case for more 
facts. More important, California has always allowed an infinite amount of time for its procedure 
for new parties to get on the ballot. For example, the California Libertarian Party took seven 
years to complete its registration drive for party status, 1972-1979. 
 
The brief does not acknowledge that New York is one of only eleven states with no procedure 
for a group to become a qualified party in advance of any particular election. 
The Libertarian and Green Parties do have an opportunity to file a reply brief. 
 


July 5 Roundtable Update

DigitalCommons@NYLS 
Redistricting Roundtable Updates NY Census and Redistricting Institute 
11-27-2023 
November 27 Roundtable Update 
Jeffrey M. Wice 
Follow this and additional works at: https://digitalcommons.nyls.edu/redistricting_roundtable_updates 
 
 
 
 
 
 N.Y. CENSUS & REDISTRICTING ROUNDTABLE UPDATE 
 
LITIGATION 
 
Congressional: Hoffmann v. Independent Redistricting 
Commission (IRC) 
 
For complete background information on the case, see the Institute’s litigation 
tracker here: https://redistrictingonline.org/stateredistrictingalmanac/state-
redistricting-info-new-york/ 
 
Nassau County: League of Women Voters Settles Challenge 
Against County Legislature 
  
In a settlement agreement, the Nassau County Legislature has agreed to 
provide the League of Women Voters of Port Washington-Manhasset with 
redistricting data files and documents that were originally denied to the 
plaintiffs. The materials are being provided to the League’s attorneys at the 
New York Civil Liberties Union. A copy of the agreement is attached. Readers 
who wish to see the entire record of documents should 
contact Jeffrey.wice@nyls.edu. 
  
AROUND THE NATION 
  
8th Circuit: Private Plaintiffs Cannot Sue Under Section 2 of 
the Voting Rights Act 
  
In a 2-1 ruling last week, a three-judge panel of the 8th Circuit Court of 
Appeals held that private litigants cannot bring lawsuits under Section 2 of the 
Voting Rights Act, but rather only the U.S. Attorney General can bring such 
claims. This decision has the potential to have major ramifications on the fight 
against unfair maps and other voting laws since the majority of successful 
Section 2 claims are brought by private litigants. 
  
The court’s opinion stems from a redistricting lawsuit filed on behalf of the 
Arkansas State Conference NAACP and Arkansas Public Policy Panel 
challenging Arkansas’ state House map. The plaintiffs alleged that the map 
diluted Black voting strength in violation of Section 2 and argued that five 
additional majority-Black House districts should be drawn to correspond to the 
state’s Black population. The case was dismissed after the district court judge 
found that there was no private right of action under Section 2, despite the 
fact that the defendants did not raise this argument. The plaintiffs appealed to 
 
 
the 8th Circuit, and the U.S. Department of Justice intervened to defend the 
plaintiff’s position that a private right of action existed. The 8th Circuit  affirmed 
the district court’s findings.  
  
The 8th Circuit’s decision goes against precedent in other circuits. For 
example, the 5th Circuit held just last week that Section 2 created a private 
right of action. In addition, the Supreme Court, in the 2023 Allen v. 
Milligan decision, agreed with private plaintiffs in a Section 2 case. By holding 
that Section 2 does not allow for a private right of action, the 8th Circuit ruling 
threatens remaining protections under the Voting Rights Act. A U.S. Supreme 
Court appeal is expected.  
  
Trial Court Orders New State Senate Map for Tennessee, but 
Upholds State House Map 
  
On November 22, a 2-1 panel of a Tennessee trial court ordered the state’s 
legislature to redraw the state’s Senate map but upheld the state’s House 
map. This decision stems from a lawsuit filed on behalf of Democratic voters 
challenging Tennessee’s new state House and Senate maps drawn after the 
release of 2020 census data. The plaintiffs argued that Republicans in the 
Tennessee Legislature unnecessarily split counties to create state House 
districts and numbered state Senate districts non-consecutively in violation of 
the state’s constitution. The plaintiffs also argued that Republicans created 
the districts to maximize the Republican advantage in the state legislature 
and argued that the districts should be blocked and replaced with legal maps.  
  
The court upheld the state House districts but struck down the state’s Senate 
map after finding that it is unconstitutional due to being not consecutively 
numbered. The court gave the Tennessee legislature until January 31, 2024, 
to adopt a Senate plan that complies with the Tennessee Constitution.  
  
North Dakota to Appeal Decision Striking Down State’s 
Legislative Map 
             
North Dakota’s Secretary of State Michael Howe announced that he plans to 
appeal the district court’s decision that protected two Native American tribes’ 
voting rights. Last week, U.S. District Chief Judge Welte ruled that the tribes’ 
voting rights were diluted by the state’s 2021 legislative redistricting map. The 
case was brought by private plaintiffs challenging the plan under Section 2. 
When announcing that the state plans to appeal, Secretary of State Howe 
cited the 8th Circuit’s 2-1 ruling earlier this week that held that private plaintiffs 
do not have a private right of action under Section 2 of the Voting Rights Act. 
North Dakota falls within the 8th Circuit; thus, Secretary of State Howe may 
have a strong argument on appeal.   
  
 
 
Louisiana Requests Rehearing En Banc Following 8th Circuit’s 
Decision 
  
Louisiana is seeking rehearing en banc following the 8th Circuit Court of 
Appeal’s decision that plaintiffs do not have a private right of action under 
Section 2 of the Voting Rights Act. Last year, the 5th Circuit ruled that 
Louisiana’s congressional redistricting plan violates Section 2. The case has 
been through several rounds of appeals, but it has yet to be decided how the 
state’s Section 2 violation will be remedied.  
  
Louisiana argues that the 8th Circuit’s decision created a circuit split regarding 
whether Section 2 creates a private right of action and argues that the 
5thCircuit should rehear the case en banc to determine whether Section 2 
creates a private right of action. Due to the 8th Circuit’s decision only being 
made earlier this week, Louisiana asked for a sixty-day extension to file a 
petition for rehearing en banc, as the state argues that it needs more time to 
write its brief. 


November 27 Roundtable Update

DigitalCommons@NYLS 
Redistricting Roundtable Updates NY Census and Redistricting Institute 
11-6-2023 
November 6 Roundtable Update 
Jeffrey M. Wice 
Follow this and additional works at: https://digitalcommons.nyls.edu/redistricting_roundtable_updates 
 
 
 
 
 
N.Y. CENSUS & REDISTRICTING ROUNDTABLE UPDATE 
  
LITIGATION 
 
Timeline: NY Congressional Redistricting Litigation 
  
The New York State Court of Appeals will hear arguments in Hoffmann et al. 
v. Independent Redistricting Commission in Buffalo on November 15th. The 
final decision in this case will determine whether a new congressional map 
will be enacted before next year’s election or the court-ordered map used in 
2022 will remain in effort. We are presenting a timeline for this litigation going 
back to the original challenge filed in Harkenrider et al v. Hochul. 
  
Harkenrider v. Hochul 
  
Steuben County State Supreme Court (Trial Court) 
February 3, 2022 
(same day that the Governor approved the legislature’s redistricting map) 
• Group of Republican voters filed lawsuit seeking to invalidate the newly 
enacted congressional and state senate districts (allegations relating to 
senate districts were added in the amended petition). 
• They alleged that the redistricting process was constitutionally 
defective because the IRC failed to submit a second set of plans to the 
legislature as required under the 2014 constitutional redistricting 
amendments, therefore the legislature lacked the authority to draft and 
enact its own plan. 
• They also alleged that the congressional and state senate maps were 
unconstitutionally gerrymandered in favor of Democrats. 
March 31, 2022 
• Following oral argument and testimony of several experts, the court 
declared the congressional, state senate, and state assembly maps 
void, reasoning that the legislature’s enactment of the maps absent 
submission of a second redistricting plan by the IRC was 
unconstitutional. 
• The court also found that the congressional map violated the 
constitutional prohibition on partisan gerrymandering. 
• The court ordered the legislature to submit bipartisan maps to the court 
for review by April 11, 2022.  
• The court held that if the legislature failed to submit maps that received 
sufficient bipartisan support by that date, the court would retain a 
neutral expert (special master) to prepare maps. 
• The respondents immediately appealed this decision to the Appellate 
Division, Fourth Department 
 
 
 
… 
  
April 18, 2022 
• The trial court appointed Dr. Jonathan Cervas of Carnegie Mellon 
University as special master. 
May 21, 2022 
• The trial court adopted new congressional and state senate maps 
drawn by special master. 
 
Appellate Division, Fourth Department 
April 8, 2022 
• The appellate division granted a partial stay of the trial court decision 
pending appeal, allowing the state to proceed with preparations for the 
2022 elections using the enacted plans, but also allowing the trial court 
to move forward with retaining a special master to prepare a draft 
congressional map while the appeal proceeds. 
April 21, 2022 
• The court affirmed the trial court’s invalidation of the congressional 
plan as being an unconstitutional partisan gerrymander but reversed 
the trial court’s finding that all three plans were procedurally defective. 
• The court ordered the legislature to enact a new congressional plan by 
April 30, 2022. 
• Both parties appealed this decision to the state’s highest court. 
 
Court of Appeals 
April 26, 2022 
• Oral argument held 
April 27, 2022 
• The court held that both the congressional and state senate plans were 
unconstitutionally enacted in violation of the state’s constitutional 
redistricting process. 
• The court also found that the congressional map was unconstitutionally 
gerrymandered. 
• The court sent the matter back down to the trial court to adopt new 
maps with the assistance of a special master. 
 
Hoffmann v. IRC 
 
Albany County State Supreme Court (Trial Court) 
June 28, 2022 
• Group of Democratic voters filed lawsuit against the NY State 
Independent Redistricting Commission alleging that the IRC failed to 
complete its mandatory redistricting duties under the state constitution. 
July 14, 2022 
 
 
• Their amended petition narrows the scope of their focus to only the 
congressional districts and asks the court to compel the IRC and its 
commissioners “to fulfill their constitutional duty under Article III, 
Sections 4 and 5 of the New York Constitution by submitting a second 
round of proposed congressional districting plans for consideration by 
the legislature, in order to ensure that a lawful plan is in place 
immediately following the 2022 elections and can be used for 
subsequent elections this decade.” 
September 12, 2022 
• The court dismissed the case, finding that there is no authority for the 
IRC to issue a second redistricting plan after February 28, 2022, in 
advance of the federal census in 2030. 
October 17, 2022 
• The petitioners appealed the dismissal to the Appellate Division, Third 
Department. 
 
Appellate Division, Third Department 
June 8, 2023 
• Oral argument held 
July 13, 2023 
• The court ruled in favor of the petitioners (Democratic voters), finding 
that they “demonstrated a clear legal right to the relief sought,” and 
noting that the decision “honors the constitutional enactments as the 
means of providing a robust, fair and equitable procedure for the 
determination of voting districts in New York.” 
• The court ordered the IRC to “commence its duties forthwith.” 
July 25, 2023 
• The GOP parties appealed this decision to the state’s highest court. 
 
… 
 
 
October 2, 2023 
• Following the Court of Appeals order holding that the stay (against the 
Appellate Division decision) does not prohibit the IRC from taking any 
actions, New York Independent Redistricting Commission 
Chair Kenneth Jenkins, and Commissioners Collado, Cuevas-Molina, 
Flateau, and Frazier issued a statement inviting public input while 
awaiting a decision from the Court of Appeals on congressional 
districting by the Commission: 
• The public is invited to submit input by 
emailing submissions@nyirc.gov or by sending mail to Attention: 
Submissions, Independent Redistricting Commission, 250 Broadway, 
22nd Floor, New York, NY 10007. All submissions will be made 
available to all Commissioners and staff. 
 
 
 
Court of Appeals 
August 8, 2023 
• Court set briefing schedule: 
Briefing Schedule: 
• Appellants’ briefs and amicus briefs supporting reversal 
due September 18, 2023 
• Respondents’ (Democratic voters) briefs and amicus briefs supporting 
affirmance due October 23, 2023 
• Appellants may file reply briefs by November 6, 2023 
September 19, 2023 
• AUTOMATIC STAY: In a technical win for Republicans and procedural 
win for the Democrats, the Court of Appeals announced that there is 
an automatic stay of the Appellate Division order that directed the IRC 
to “commence its duties forthwith” (i.e., to send a second map 
submission to the legislature) but clarified that the IRC is not prohibited 
from taking “any actions.” The court’s order “stayed” or paused the IRC 
from taking official action, “but the stay does not prohibit the IRC or 
Independent Redistricting Commissioner its members from taking any 
actions.” 
November 15, 2023 
• The Court of Appeals will hear arguments in Buffalo, NY at 1:00 PM 
at Old County Hall, 92 Franklin Street, Buffalo, New York. 
  
Congressional: Democratic IRC Commissioners Invite Public 
Input in Advance of Court of Appeals Decision 
 
Following the Court of Appeals order holding that the stay (against the 
Appellate Division decision)  does not prohibit the IRC from taking any 
actions, New York Independent Redistricting Commission 
Chair Kenneth Jenkins, and Commissioners Collado, Cuevas-Molina, 
Flateau, and Frazier issued a statement inviting public input while awaiting a 
decision from the Court of Appeals on congressional districting by the 
Commission: 
 
The public is invited to submit input by emailing submissions@nyirc.gov or by 
sending mail to Attention: Submissions, Independent Redistricting 
Commission, 250 Broadway, 22nd Floor, New York, NY 10007. All 
submissions will be made available to all Commissioners and staff. 
  
CENSUS 
  
Looking Inside New York City Neighborhoods 
  
 
 
New York City officials do not provide “official” borders for city neighborhoods. 
The New York Times recently conducted a study to understand where New 
Yorkers believe neighborhood boundaries begin and end, and whether these 
borders were consistent with borders provided by Google Maps and 
companies such as Street Easy. The results of this study were consolidated 
into one map, which is possibly the most detailed map of the city’s 
neighborhoods ever compiled. 
  
During the creation of the map, reporters consulted numerous experts on 
New York, including historians, professors, authors, directors of organizations 
such as Neighborhood X. The reporters also contacted all 59 city community 
boards and the offices of all 51 City Council members, who contributed to the 
project by spreading the survey throughout communities and providing 
information on the neighborhoods they represented. The neighborhood 
colors, names, and shapes were based on about 37,000 drawings and 
responses by New Yorkers. In areas that received less survey coverage, the 
reporters supplemented the data with older survey results from DNAinfo. The 
finalized map includes more than 350 distinct neighborhoods based on these 
responses. 
  
To appear on the map, a reader-submitted neighborhood name needed to 
comprise at least one percent of the names submitted for a given block. For 
some neighborhoods, the reporters made a judgment call to group similar 
names into one percentage, such as FiDi and the Financial District. On the 
map, brighter solid colors symbolize an agreement on what the area is called. 
Blurrier colors demonstrate how much disagreement or uncertainty exists 
between readers.  
  
The blurry or “fuzzy” blocks often signify areas that are in transition or dispute, 
where no consensus exists among New Yorkers or where gentrification is 
currently revising neighborhood boundaries. The sharp colors reflect features 
of the city: wide avenues, highways, or remnants of canals. When you cross 
this feature, you have clearly entered another neighborhood. An example of 
this feature is Broadway, where each side signals whether you are in 
Bedford-Stuyvesant or Bushwick. 
New Yorkers also responded with frustration about many neighborhoods. 
They said the boundaries were “blurred,” “rebranded,” “chipped away at,” or 
“invented by real estate agents.” This data exhibited how city blocks can be 
used as pawns in “geographical warfare,” often on the offense or defense for 
space amid demographic changes, migration, and real estate advertising 
schemes. The article concludes that richer neighborhoods historically get 
bigger, while bigger and comparatively poorer neighborhoods tend to get 
carved into smaller, separate ones. Some of these new smaller 
neighborhoods get richer and get bigger again, while others just disappear.  
  
To see the maps and report, go to:  
 
 
https://www.nytimes.com/interactive/2023/upshot/extremely-detailed-nyc-
neighborhood-map.html 
https://www.nytimes.com/interactive/2023/10/29/upshot/new-york-
neighborhood-guide.html 
AROUND THE NATION 
North Carolina Democrats Plan To Challenge  New Congressional Map 
             
North Carolina Democrats intend to challenge the Congressional lines 
recently enacted by the state’s legislature. Governor Roy Cooper stated that 
the lines will be challenged, calling them “gerrymandering on steroids.” 
Anderson Clayton, the chair of the North Carolina Democratic Party, stated “If 
they’re going to make me go fight them on the VRA, I absolutely plan on it.” 
Democrats and interest groups in the state are discussing who should bring 
the lawsuit and whether they should sue under the Voting Rights Act or bring 
a racial gerrymandering claim under the Equal Protection Clause of the 
Fourteenth Amendment.  
  
The newly enacted lines are set to shift several districts from Democratic to 
Republican control. The map used for the 2022 midterm election, a court-
drawn map put in place following the North Carolina Supreme Court’s ruling 
that the previously enacted map was an illegal gerrymander under the state’s 
constitution, led to each party winning seven seats in Congress. The map 
projects to shift several districts in Republicans’ favor, with the map creating 
ten solidly Republican districts, three Democratic districts, and one 
competitive district. Jeff Jackson, a first-term congressman, announced that 
he will not be running for a second term in Congress after his district was 
changed from a “toss-up” to “likely-Republican” under the new map. 
Democrat Kathy Manning is projected to lose her seat, and Democrat Donald 
G. Davis is also in danger of losing his seat, as the new lines dilute the Black 
electorate in his predominantly Black district, reducing his previous four-point 
projected advantage in the district to barely a one-point advantage.  
  
Republicans argue that the lines were drawn to ensure that they would be 
upheld in court, and anticipate the map being in place for the 2024 midterms. 
Democrats acknowledge that they may not have a “slam dunk” case but view 
their efforts in combating the currently enacted map as only part of the 
parties’ long-term strategy in securing more seats in the state’s legislature 
and on the state’s Supreme Court.  
  
Michigan’s Legislative Map Trial Gets Underway 
  
A federal trial began in Agee v. Benson on November 2 in a case brought by 
Black voters challenging Michigan’s state House and state Senate maps. The 
 
 
voters brought claims under Section 2 of the Voting Rights Act and for 
violations of the Equal Protection Clause of the Fourteenth Amendment. The 
voters allege that Michigan’s Independent Citizen’s Redistricting Commission 
violated Section 2 by depriving Black voters of an adequate number of 
districts in the Detroit area where they can elect the candidate of their choice. 
In establishing their Equal Protection claim, the plaintiffs allege that the 
Commission stacked Black voters into districts that have traditionally had 
majority-White voting age populations and did so with a racially discriminatory 
purpose, arguing that traditional redistricting principles and natural population 
shifts were unjustifiably ignored to artificially manipulate the Black voting age 
population of the districts.  
The Commission argues that the new legislative maps score 
significantly better in terms of partisan fairness when compared to the state’s 
previous set of maps. The Commission also argues that it did not deny Black 
voters the opportunity to elect their candidate of choice when it turned 
majority-Black districts into cross-over districts, which are districts where 
members of the White majority vote for the minority’s preferred candidate. 
The plaintiffs refute the Commission’s argument that the establishment of 
cross-over districts justifies the elimination of Black-majority districts, leaving 
this issue to be considered at trial.  
In August a federal three-judge panel allowed the plaintiffs’ claims 
against most of the challenged districts to proceed to trial but did rule partially 
in favor of the Commission, dismissing claims against certain House and 
Senate districts. At trial, the members of the same three-judge panel will 
determine whether several House and Senate districts violate Section 2 and 
will also decide whether race was unconstitutionally used as the predominant 
factor in the drawing of a number of House and Senate districts. The trial is 
expected to conclude on November 8. 


November 6 Roundtable Update

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New York Census and Redistricting Institute

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New York Census and Redistricting Institute Event Posters 
4-25-2023 
New York State Election Law Issues 
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Center for New York City Law

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9-11-2023 
CityLaw Breakfast Series: What is Life Worth? 
Center for New York City Law 
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The Center for New York City Law 
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Professor Ross Sandler, Director 
cordially invite you to the 
188th Citylaw Breakfast 
Citylaw Breakfasts are live 
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Center for 
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Speaking on 
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Date 
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Time 
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Place 
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