UPDATE, February 5, 1:10 p.m.: The U.S. Supreme Court on Monday rejected requests from Pennsylvania Republicans to block the Pennsylvania Supreme Court decision. The move leaves the order mandating new maps be drawn by February 9.
Earlier this week, the Pennsylvania Supreme Court ruled that the state’s congressional district map was an unconstitutional partisan gerrymander: a map drawn to favor one party over the other. Furthermore, that court did so in a way that will likely prevent the U.S. Supreme Court from overturning the decision.
Pennsylvania’s congressional district map was drawn by the state’s GOP-controlled legislature back in 2011, as was required following the 2010 census. It has districts that are almost comically misshapen—one district has been referred to by Washington Post readers as “Goofy Kicking Donald Duck.” The map was also drawn by the GOP behind closed doors; there are no available records that explain how the legislature came to its decisions about districts.
Even without that, however, it was clear both that the map had major shifts—entire counties and cities were moved into new districts—and got major results. The GOP now holds 13 of 18 U.S. congressional seats in a state where they’re outnumbered nearly four to three by Democratic voters, and hung on to the same 13 seats in all three elections since the map was drawn. An Associated Press analysis determined that the map helped the GOP pick up “nearly three” more House seats than it would have otherwise.
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The League of Women Voters of Pennsylvania brought the recent lawsuit on behalf of voters in each of Pennsylvania’s congressional districts. However, unlike some other gerrymandering cases, the Pennsylvania case was brought under Pennsylvania’s state constitution rather than the U.S. Constitution. The suit alleged that the 2011 map violated the Free Expression and Free Association Clauses of the Pennsylvania Constitution because, by packing Democratic voters into specific districts in order to minimize or negate their political power, it burdened the expressive conduct of Democrats based on their political views. The suit also alleged that the map violated the equal protection guarantees found in the Pennsylvania Constitution because it intentionally discriminated against Democratic voters.
The Pennsylvania Supreme Court agreed with the petitioners, and a 5-2 majority held that the 2011 Congressional map “clearly, plainly, and palpably” violated the Pennsylvania Constitution. They also enjoined the state from using the map for the upcoming 2018 midterms, beginning with the May 15, 2018 primary. The Pennsylvania General Assembly will have an opportunity to submit to the governor a new map that is constitutional by February 9, 2018. If Pennsylvania’s Democratic Governor, Tom Wolf, accepts the plan, he must submit it to the court by February 15, 2018. However, if the Pennsylvania Assembly doesn’t submit a plan or the governor does not approve the plan as submitted, the Pennsylvania Supreme Court will adopt a plan based on the trial court record.
Both Republican Pennsylvania Supreme Court justices dissented from the holding. Chief Justice Thomas Saylor said that he would have stayed the case while awaiting guidance from the U.S. Supreme Court in Gill v. Whitford, a Wisconsin redistricting challenge. Chief Justice Saylor also pointed out that the highest Court had, just last week, issued a stay in Common Cause v. Rucho, a North Carolina gerrymandering case.
However, both of those cases were brought in federal court and were decided on federal grounds. The Pennsylvania case was brought in state court and decided under the Pennsylvania Constitution. This is critical, because the United States Supreme Court will generally not agree to hear cases where a state court based its decision on state law. This may put the Pennsylvania case out of its reach, but it also may, perhaps more importantly, create a way forward for litigants in other states. If they prevail in state court on state grounds, those challenges may be able to succeed regardless of what the conservative-dominated U.S. Supreme Court holds in federal cases. Therefore, arguing that it is imperative to wait for U.S. Supreme Court guidance is misplaced, because that guidance generally wouldn’t overturn a Pennsylvania state court ruling based on state law.
Chief Justice Saylor and another Republican justice, Sallie Updyke Mundy, also raised a concern that there is not enough time between now and the 2018 midterm elections to create and implement a new congressional district map. It is true that the 2018 midterm elections are only ten months away, and it is also true that the Pennsylvania Supreme Court did not give the assembly a good deal of time in which to redraw the maps. This is an argument that seems compelling on its face, but ignores a few crucial things about timing.
First, although Pennsylvania has mechanisms for these sorts of cases to proceed relatively swiftly (this was originally filed in June 2017), many cases cannot proceed at that speed, including those filed in federal courts.
The Wisconsin gerrymandering case, for example, was filed in 2015. A federal court declared Wisconsin’s district plan to be an unconstitutional partisan gerrymander back in November 2016. Wisconsin continued to fight that decision, culminating in its request to the U.S. Supreme Court in May 2017 to not only review the decision but to stay the lower court’s order requiring Wisconsin to rewrite their district plan. Since the Court didn’t agree to hear the case until June 2017—and granted the stay—and oral arguments only occurred in October of last year, a decision could come as late as June 2018. So it is all but certain that Wisconsin will be able to continue to use its existing map for the 2018 elections. Wisconsin’s efforts here show that a state can continue to be allowed to use a map already declared unconstitutional by lower courts if it pushes for a stay. The situation in North Carolina is similar.
The Wisconsin and North Carolina cases make clear that, at least in federal court, it doesn’t really matter how early you bring a challenge to a redistricting plan: The state can run out the clock and get a stay from a (likely sympathetic) U.S. Supreme Court. Put another way, it is almost impossible to file—and conclude—a lawsuit in some as-yet-undefined window of time that would make it appropriate to demand maps be redrawn for an upcoming election. And each election that occurs under a partisan map increases partisan control.
The Pennsylvania case’s approach circumvents this problem. Pennsylvania courts were able to fast-track this case and there is now a decision that is almost certainly unable to be appealed to the United States Supreme Court. It is relatively close to the 2018 elections. However, given that congressional elections are every two years, it is tough to get away from a situation where you’re bumping up against the next election. This is particularly true because a successful gerrymander challenge requires extensive data on the previous election and how the results of that election were mathematically impossible absent the partisan gerrymander.
The petitioners in Pennsylvania may have created a pathway for other states to bring successful challenges to blatantly partisan congressional district maps: file the action in state court and allege a violation of the state, not federal, constitution. This is, of course, dependent on whether a state has a constitutional provision—and cases interpreting that provision—that would make a challenge viable. Given the current composition of the U.S. Supreme Court and Chief Justice John Roberts’ demonstrated hostility to data on partisan gerrymandering, this may be the only approach to take.