Pennsylvania Supreme Court Strikes Down House District Map Due To Partisan Gerrymandering

Another win for forces fighting partisan Gerrymandering.

gerrymander

Pennsylvania’s  Supreme Court issued a ruling yesterday striking down the state’s Congressional Districts drawn in the wake of the 2010 census as unconstitutional under state law and the state’s Constitution:

WASHINGTON — Pennsylvania’s congressional district map is a partisan gerrymander that “clearly, plainly and palpably” violates the state’s Constitution, the State Supreme Court said on Monday, adding to a string of court decisions striking down political maps that unduly favor one political party.

The court banned the current map of the state’s 18 House districts from being used in this year’s primary and general elections, and ordered that a new map be submitted to the court by Feb. 15. But the state’s Republican-dominated Legislature, which approved the current map in 2011, has already said it would try to overturn such a decision in federal court. That would set up another legal battle over gerrymanders in a year already filled with them.

But an appeal to the federal courts would very likely fail, election experts said, because decisions based solely on interpretations of state law — as this one appears to be — are generally beyond the reach of federal judges.

For the same reason, the state court’s decision has no direct bearing on a string of challenges to partisan gerrymanders that are already moving through the federal court system. Earlier this month, in fact, a divided panel of three federal judges left intact the same Pennsylvania House map that the state court threw out on Monday.

If the state court ruling stands and the map is redrawn, the consequences could be serious for Republicans, who are already battling national political headwinds in their effort to maintain control of the House in the midterm elections this fall.

(…)

In Monday’s decision, the Pennsylvania Supreme Court split along party lines in striking down the state’s House map, with the court’s five Democrats in the majority and its two Republican judges in dissent. The majority did not lay out its reasons on Monday, saying they will be explained in a later written opinion.

The original complaint, filed in June, relied heavily on an argument that the map violated the state Constitution’s freedom-of-speech guarantees, which are broader than those in the federal Constitution.

Gerrymander opponents have argued in both state and federal lawsuits that partisan redistricting violates the First Amendment by punishing one party’s voters for speaking with their votes in opposition to the other party. Among the evidence presented by the plaintiffs’ lawyers in the suit, originally brought by the League of Women Voters of Pennsylvania, was that as many as five seats held by Republicans would have been won by Democrats if “neutral” maps had been used, meaning maps that did not contort districts and divide communities.

Pennsylvania is considered one of the most gerrymandered states in the nation, with congressional districts twisted into fanciful shapes, including one that has been described as looking like “Goofy kicking Donald Duck.”

The court order on Monday required the Legislature to submit a new map for the governor’s approval or veto by Feb. 9. If new boundaries are not approved by Feb. 15, the court said, it would decide on a map itself, relying in part on suggestions from parties to the lawsuit.

The state court appeared to be less divided on the central issue of the case than the 5-2 party-line split might suggest. Chief Justice Thomas G. Saylor, a Republican, acknowledged in his dissent that recent federal court rulings “raise substantial concerns as to the constitutional viability of Pennsylvania’s current congressional districts,” but he argued that the court should have awaited the federal Supreme Court’s decision in the Wisconsin gerrymander case, expected this spring, before making its own ruling.

“My position at this juncture is only that I would not presently upset those districts,” he wrote.

A second dissent, by Justice Sallie Updyke Mundy, endorsed Justice Saylor’s views, and added a warning that involving the State Supreme Court in redrawing the map could raise federal constitutional questions.

Republicans in the State Senate said they would ask the State Supreme Court to stay its order for new maps, and made it clear that they would try to take the matter to a federal court. But legal experts said their chances appeared slim at best, because federal courts generally have no authority to review state court decisions that exclusively involve state law. The State Supreme Court took pains to say that the state Constitution was the “sole basis” for its ruling requiring a new map.

The most likely argument for federal review, election scholars said, is that the court order violated the federal Constitution’s elections clause, which delegates authority over elections to state legislatures. The Supreme Court entertained a similar argument in Bush v. Gore, the case that determined the outcome of the 2000 presidential election. But the court later narrowly rejected the idea that state legislatures have sole authority over elections in a 2015 decision that, fittingly, dealt with redistricting in Arizona.

Lyle Denniston summarizes the Court’s opinion in detail:

First, by a vote of 5 to 2, it ruled that the 2011 map for redistricting the boundaries of the 18 House of Representatives seats “clearly, plainly and palpably” violates the state constitution.  It did not say explicitly which provisions of that document had been violated, but the challengers had made only an argument that it was an invalid “partisan gerrymander.”  Their argument relied upon four provisions of the Pennsylvania constitution – guarantees of free speech, free association, free and equal elections, and equality of legal protection.  Justice Mundy, dissenting on that point, said in her dissent that the failure to cite the source of the violation would not give the legislature or the governor guidance on how to provide a remedy.   She and Chief Justice Thomas G. Saylor would have found no violation, at least as the challenge now stands.  Supporting the finding of a violation were Justices Max Baer, Christine Donohue, Kevin M. Dougherty, Debra McCloskey Todd and David N. Wecht.)   The five-justice majority also laid down some principles that any new congressional map would have to meet, including placing as nearly as possible equal numbers of people in each of the 18 new districts.

Second, by a vote of 4-3, the court ruled that the 2011 congressional maps may not be used in this year’s elections to select the next occupants of the 18 seats, beginning with the scheduled May 15 primary.

Third, by that same vote, the court told the state legislature, if it wishes to draw new maps that would satisfy the state constitution, to submit them to the governor within 18 days – that is, by February 9, and told the governor if he accepted the legislative plan to submit it to the court by February 15 for its review.

Fourth, again by a 4-to-3 vote, the court said it would undertake to adopt its own plan if the legislature and governor had not come up with a satisfactory one.  In anticipation of that possibility, it told the parties to submit their own maps to the court by February 15.

Fifth, by that same 4-to-3 vote, it ordered state officials to do everything they could to make sure that the May 18 primary goes ahead under a new plan

The court has not handed down a formal opinion  in the case, instead stating in a short order released yesterday that such an opinion would follow. From reading the brief concurring and dissenting opinions in the case, though, one can get some impression of what the basis for the Court’s ruling was. Essentially, it appears that the Court accepted the arguments that the districts drawn in the wake of the 2010 Census violated various provisions of the state Constitution, including provisions regarding Freedom of Speech and other parts of the state’s equivalent of the Bill of Rights. The Court also appears to have rejected arguments that redrawing the maps as they are requiring would somehow constitute a violation of the provisions of the Federal Constitution that grant broad discretion to the state legislatures in determining district lines during redistricting. As for the dissents, for the most part, they appear to be based almost entirely on the timetable that the Court has established for the state to submit a new map. It seems clear, though, that the Court’s timing on that issue is based largely on the fact that we are just nine months away from midterm elections and there is a limited amount of time for the state to redraw district lines and get prepared for the elections that would follow

If the ruling stands, it would likely prove beneficial to Democrats due to the fact that the district lines in Pennsylvania were drawn in a manner that seems to have been clearly designed to benefit Republicans and limit the districts in which Democratic candidates could be successful. Even while accepting that argument, though, Reason’s Eric Boehm questions the propriety of the decision:

The precedent being set is worrisome. Even if the five Democratic justices had nothing but good intentions in tossing the map (a map that, again, is plainly political and terrible), this looks like a partisan play aimed at giving Democrats a better shot at winning the House in 2018. Courts should endeavor to stay above the political fray, and even the appearance of partisan motivation should be avoided in a case that is about literally nothing other than partisan political interests. That’s particularly true in a state where judges are elected. Will every subsequent change in the balance of the state Supreme Court bring with it a command to redraw the congressional districts to the majority of the bench’s liking? If so, Supreme Court elections in Pennsylvania just gained a nasty new level of significance.

Part of the problem is that there’s really no objective standard when it comes to drawing districts. Federal law requires all congressional districts to have the same number of people, and the state constitution mandates that districts must be “compact and contiguious.” But there’s again no objective way to determind exactly how compact is compact enough.

Rather than rushing to redraw Pennsylvania’s congressional map in the next few weeks, the court could have avoided the appearence of political motivation by letting the current map stand and setting clearer standards for what will or will not be allowed in the next redistricting cycle. Adding some detail to the vague “compact and contiguous” rules would make it clearer to lawmakers of both parties that a repeat of 2011’s shenanigans will not be tolerated.

Boehm’s argument has some merit in my opinion. As I have noted before, the Federal Constitution gives state legislatures broad discretion when it comes to the drawing of Congressional and state legislative Districts. The only limitations on that discretion are provided by the Fourteenth and Fifteenth Amendments and various Federal laws such as the Voting Rights Act. Those provisions, though, deal with issues of redistricting based on race and other criteria such as ethnicity, they do not per se make partisan Gerrymandering illegal or unconstitutional. Additionally, drawing districts based on partisan concerns is a practice as old as the nation itself, a fact reflected in the very name given to the practice which derives from Elbridge Gerry, one of the men who signed the Declaration of Independence and took part in the 1787 Constitutional Convention and later served as both Governor of Massachusetts and Vice-President of the United States until he died in office in 1814. Additionally, as Boehm notes we are only nine months away from a midterm election and requiring the state to redraw district lines at this point would seem to me to be highly disruptive and potentially confusing for voters and politicians alike. Ideally, the Court should have probably said that its order will apply to the next round of redistricting that will occur after the 2020 census.

As noted, state authorities have already stated that they would appeal the decision. In this case, that avenue of appeal lies solely with the Supreme Court of the United States, which has already accepted cases regarding partisan gerrymandering from Wisconsin and Maryland. The Court has already heard oral argument in the Wisconsin case and will likely hear argument in the Maryland case later this term. In this case, though, the odds don’t seem good for any petition for review that state authorities may file with the nation’s highest Court. In addition, a three Judge panel of Federal Judges handed down an opinion early this month finding the district lines in North Carolina unconstitutional due to their partisan nature in a ruling that was similar to those issued in the Wisconsin and Maryland cases. Unlike the Wisconsin, Maryland, and North Carolina cases, this case was decided by the highest state court in Pennsylvania and based in entirely on state law. As noted above, while the Supreme Court does have jurisdiction to hear such cases, it seldom accepts appeals from state Supreme Courts or whatever the highest court of a particular state may be called. This is especially true in cases where the ruling is based on state law and the state Constitution. Ordinarily, the Justices tend to grant wide deference to the rulings of the fellow jurists at that level of the legal system of their respective state because those courts are deemed to be better judges of the content and meaning of state law.

If the Justices follow that general rule then it is unlikely that they accept the appeal at all and unlikely that they would overturn the state court’s decision if they did. The only possible way that the Justices could be persuaded to take the case would be if state authorities could craft a credible legal argument that the requirements of the state Constitution on which the ruling is based somehow violated the Federal Constitution’s provisions that give state legislatures authority to draw district lines or that the ruling would somehow conflict with the operation of elections to the House of Representatives. This is similar to an argument that the state legislature in Arizona made in connection with a case challenging the referendum that created a non-partisan commission to draw the state’s districts, but the Supreme Court rejected that argument and upheld the validity of the commission. Given that ruling and other precedents then, it seems like it will be difficult for the state turn this into a Federal case. Because of that, this ruling is likely to stand, and that is likely to have a significant impact on the makeup of Pennsylvania’s Congressional delegation going forward.

Here is the Court’s order and the respective concurring/dissenting opinions:

League of Women Voters Et Al v. Pennsylvania Et Al by Doug Mataconis on Scribd

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Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. gVOR08 says:

    In the past, it was difficult to prove district lines offered partisan advantage until after the election. The lege would have to be dumb enough to leave a record, as they sometimes are. However, there are now statistical techniques that can clearly show a partisan effect, although they can’t prove motivation. Basically the same methods the lege uses to draw the partisan gerrymander. IANAL and I don’t follow the court, so aside from general cynicism I can’t say if Chief Justice Roberts is sincere in his expressed ignorance and distrust of such methods, or if he’s deliberately ignorant with malice aforethought.

    Also, these cases are brought on free speech grounds, which seems to me maybe a stretch, and I realize “one man,one vote” is a principle, not a law, but could a case not be made under equal protection?

    Off topic, but James, it’s been ten or fifteen minutes and the site is still up. Thank you. Now I’ll watch how long it takes to load this comment.

  2. gVOR08 says:

    @gVOR08: Fifteen seconds. Pretty sweet.

  3. teve tory says:

    In the past, it was difficult to prove district lines offered partisan advantage until after the election. The lege would have to be dumb enough to leave a record, as they sometimes are. However, there are now statistical techniques that can clearly show a partisan effect, although they can’t prove motivation.

    In Kitzmiller v Dover, the creationist case decided in Dec 2005, one of the great things the judge relied on was how the school board members were on record saying things like “With this action we’re really gonna be able to get Jesus back into the curriculum now!” and that fücked them. Similarly, in one of these cases the state legislators are on record saying, “Now we’re gonna be able to get more Repubicans than we aughta get”. And they’re gonna get Füüüüüüüüücked.