Supreme Court Declines To Place Hold On Pennsylvania Gerrymandering Decision

The Supreme Court has declined to stay a Pennsylvania Supreme Court ruling requiring the legislature to redraw the state's Congressional District map.

Roughly two weeks ago, the Pennsylvania Supreme Court handed down a landmark ruling that invalidating the Congressional Districts drawn up by the state legislature in the wake of the 2010 Census. Under the terms of that ruling, which was based on state law and the state Constitution, the state legislature has until the end of the week to submit a new map to the Governor and a new map must be approved within ten days. If the legislature and Governor are unable to do that then the Court will announce its own plan within fourteen days.  In response to the ruling, the state’s Republican legislature immediately appealed to the Supreme Court of the United States to stay the State Supreme Court’s ruling pending consideration of the legislature’s petition for the nation’s high court to accept the case for review. Today, the Supreme Court rejected the legislature’s request, meaning that the Pennsylvania Supreme Court’s order remains in effect:

WASHINGTON — The United States Supreme Court on Monday refused to stop Pennsylvania’s highest court from requiring lawmakers there to redraw the state’s congressional map, which the state court had found to be marred by partisan gerrymandering.

The Supreme Court’s order was expected, as the Pennsylvania court had based its decision solely on the state constitution. On matters of state law, the judgments of state supreme courts are typically final.

The order, which gave no reasons, came from Justice Samuel A. Alito Jr., who acted without referring the case to the full court.

The Supreme Court has been busy lately addressing cases on partisan gerrymandering, in which the party in power draws voting districts to give its candidates lopsided advantages. It is considering two such cases, from Wisconsin and Maryland, and has intervened in a third one, from North Carolina. But all of those cases were decided by federal courts.

The latest decision, from the Pennsylvania Supreme Court, struck down the state’s congressional map, saying it “clearly, plainly and palpably” violated the state’s Constitution. The court told state lawmakers to redraw the state’s 18 House districts, which currently favor Republicans, and it left open the possibility that it would impose its own map.

Under the current map, Republicans control 13 of those 18 seats. Election law experts say that a nonpartisan map could move as many as three of those seats to Democrats and increase that party’s chances of regaining control of the House in the midterm elections this fall.

The State Supreme Court’s 5-2 decision divided along partisan lines, with the Democratic justices in the majority and the Republicans in dissent. The majority has promised to issue an opinion providing its detailed reasoning but has yet to do so.

Republican lawmakers filed an emergency application last month asking the United States Supreme Court to step in, saying the case was partly governed by federal law. They pointed to Article I, Section 4 of the United States Constitution, which says that the times, places and manners of congressional elections “shall be prescribed in each state by the legislature thereof.”

The lawmakers said the State Supreme Court had thus usurped the legislature’s role in violation of federal law. They relied on a closely divided 2015 decision from the United States Supreme Court allowing an independent redistricting commission in Arizona rather than its Legislature to draw congressional districts.

The commission had been authorized by a referendum, and the justices in the majority said that the Constitution’s reference to “legislature” encompassed the people’s legislative power when acting through ballot initiatives. The dissenters said the term legislature should have been read more narrowly.

The lawmakers in the Pennsylvania case argued that the term was in any event not elastic enough to encompass a court.

In response, lawyers for Gov. Tom Wolf, a Democrat, pointed to another part of the Arizona decision’s discussion of Article I, Section 4. “Nothing in that clause instructs, nor has this court ever held, that a state legislature may prescribe regulations on the time, place and manner of holding federal elections in defiance of provisions of the state’s Constitution,” Justice Ruth Bader Ginsburg wrote for the majority.

The decision not to stay the Pennsylvania Court’s order actually came from a single Justice, Samuel Alito, who was the Justice responsible for handling the request for a stay since he is assigned to over the Third Circuit Court of Appeals which has jurisdiction over Pennsylvania as well as New Jersey and Delaware. Under Supreme Court rules, Justice Alito had the option of either passing the application for a stay along to the full Court for consideration or ruling on it himself. In this case he chose the first option, but it’s likely that he had at least some sense of how the Court as a whole would view the request for a stay in a case such as this and that this formed a basis for his decision to deny the request for a stay. At least theoretically, the Pennsylvania legislature has the option under Supreme Court rules to another Justice, but the odds that another Justice would overrule Alito in this instance seem low. The most they might do is send the matter to the full Court for consideration, but it seems unlikely that the result there would be any different than the decision they got from Justice Alito. Even if they do seek such relief, though, the deadlines set by the Pennsylvania Supreme Court remains in effect and the legislature has until the end of the week to act, and not much time after that to get a new map approved by the Governor Otherwise, the state’s Supreme Court will impose its own solution and that will become the basis for any future appeal to the U.S. Supreme Court.

As is typical in these type of cases, Justice Alito did not give a written explanation for why he denied the application for a stay, but there are a handful of factors that likely played a role in the decision. As I noted in my initial post about the ruling two weeks ago, the state Supreme Court’s ruling in this case is based entirely on state law and the state Constitution and doesn’t implicate Federal law or the Federal Constitution at all. In cases such as this the Justices in Washington typically tend to defer to the ruling of their brethren in the state Supreme Court since they are presumed to be the best judges, and indeed the final arbiters, of state law and the interpretation of the state’s Constitution. The only time that the U.S. Supreme Court is likely to intervene in such cases is when the case implicates Federal law in some way or conflicts with some provision of the Federal Constitution. The Republican legislature made the argument in its filing with Justice Alito, but he obviously did not find the argument compelling, and it’s likely that the Supreme Court a a whole would either. Another basis for Alito’s decision is the fact that there isn’t really any imminent need to halt the ruling at this time. Had the decision been handed down closer to the midterm election in November, the legislature could have argued that trying to redraw the map while at the same time preparing for an election would be too disruptive, and that argument might have succeeded at least enough to buy the legislature time until after the election to deal with drawing a new map. With the General Election nine months away, and the primary not until May, there’s clearly enough time for the legislature to act on this issue.

In any case, with the stay denied, the Pennsylvania legislature will have some work to do this week.

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Doug Mataconis
About Doug Mataconis
Doug Mataconis held 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 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. michael reynolds says:

    It’s a GOP dominated legislature so they will make no effort to draw a fair map, they’ll push the deadline as far as they can, produce and equally b.s. map and figure the court won’t have time to stop them. Republicans don’t believe in law, let alone fairness, they believe in money and power.

  2. Daniel says:

    Not possible. If it is a bullshit map, the court will write it for them.

  3. gVOR08 says:

    @Daniel: Last I heard the court said that in order to draw a map the court needed the data the legislature had used, and the Republican leadership was refusing to provide it. If they continue to refuse, this could get interesting.

  4. HarvardLaw92 says:


    Yup. It’s heading towards being a full blown constitutional crisis in PA