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Pennsylvania Congressional gerrymander overturned – and it seems likely to stick

January 22nd, 2018, 2:51pm by Sam Wang


Update, February 5th: Justice Alito denied the Pennsylvania GOP legislators’ motion for a stay. He did so without referring the matter to the full Supreme Court. Justice Alito is one of the three most conservative members of the court, and a near-guaranteed vote against restrictions on partisan gerrymandering…based on the U.S. Constitution. I would call his ruling today a clear signal of what he thought of this desperate Hail Mary pass.

This doesn’t have any bearing on the federal cases in Wisconsin, Maryland, or North Carolina. But it does mean that Pennsylvania will have new Congressional maps within 1-2 weeks.

Update, January 26th: The Commonwealth Court has announced the details of the redistricting, including which definitions of compactness to use. They’ve also retained veteran redistricter Nathaniel Persily in case the legislative process does not produce an acceptable map.

Just in – Pennsylvania’s Commonwealth Court has overturned that state’s Congressional map as a partisan gerrymander. Maps are ordered to be redrawn there in time for this year’s November election (and the primary in May).

The order was 5-2, with the court’s two Republican appointees in the minority. However, even they were soft no’s. One of them, Chief Justice Saylor, wants to wait to see how Gill v. Whitford, the federal Wisconsin case, turns out. The other, Justice Mundy, says it is not clear which provision of the Commonwealth Constitution applies here. A third justice, Democrat-appointed Justice Baer, raised concerns that subsequent litigation will compress this year’s election calendar too much.

Of particular note, the court order says to redistrict by compactness, equal population, and preserving towns/counties/cities. However, no reference to communities of interest, which is probably good because it closes a loophole that partisans would otherwise try to exploit.

This decision is huge because it does not depend on the U.S. Constitution. Instead, it is based on the Commonwealth Constitution of Pennsylvania, which has First/Fourteenth-Amendment-like protections – but is not subject to appeal to the Supreme Court. I think intervention by the Supreme Court would occur only if the decision expressly contradicted federal law. Even if Gill were to win over Whitford in the Wisconsin case, a decision there would probably still not find a right to gerrymander in the U.S. Constitution. That said, Rick Hasen has described a possible Hail Mary strategy for the state of Pennsylvania. None of this will stop the initial appeals and litigation…but it sure seems like Pennsylvania just took a big step toward fairer districting for this cycle (2018 and 2020). Considering that Pennsylvania is the site of the (in)famous Vieth v. Jubelirer decision, it would be poetic justice.

What does this mean for this year? According to the order, the special election in the 18th Congressional District should proceed as planned, in March. That makes sense, since otherwise, dependent on the new boundaries, some Pennsylvanians would have two members of Congress and others would have none. After that, once the map is redrawn, political conditions in 2018 are likely to resemble 2012 for Democrats, or better. Neutral districting then would have led to 8-9 D seats. The actual result was 13 R, 5 D (and has been since then). Therefore today’s decision, implemented via neutral redistricting principles, might reasonably mean a 3 or 4-seat gain for Democrats.

Tags: 2018 Election · Redistricting

25 Comments so far ↓

  • Elise

    Continuing the discussion from the comment section on the North Carolina discussion, would SCOTUS’s decision to stay/not stay the redrawing mean anything one way or the other?
    Pennsylvania Republicans are sure to try an appeal to SCOTUS, but they don’t have a leg to stand on since the decision is based on the Commonwealth’s Constitution, which SCOTUS has no authority to interpret, only declare if something violates the federal Constitution. So, it seems like it wouldn’t mean much if they don’t stay the decision, but would signal something huge (a constitutional right to gerrymander?) if they did.

    • Sam Wang

      Probably not. The stay only had Ginsburg and Sotomayor dissenting, which means that two votes for Whitford (Breyer and Kagan) found the stay to be acceptable. So the stay doesn’t tell us anything about Kennedy’s eventual vote.

      The more telling fact is that the Supreme Court took the Maryland case, Benisek v. Lamone. They would only do that if they were looking for ways to rein in partisan gerrymanders. If they redraw Maryland but not Wisconsin, that’s pretty weird, and especially partisan because there are so many GOP gerrymanders this cycle. My current guess – emphasis on current – is that plaintiffs win all of these cases.

      Agree with you about the Pennsylvania state appeal.

  • 538 Refugee

    First domino?

  • Pechmerle

    As Hasen correctly points out, the Penn. Legislature can appeal this decision of the Penn. Supreme Court to the U.S. S. Ct. They need a federal ground as the basis for appeal, but can find it in the U.S. Const. Art. I, Sec. 2 (the people shall choose the members of the U.S. House of Representatives) and Sec. 4 (the method of the people choosing the members of the House of Representatives shall be specified by the state legislatures, subject to specific rules otherwise enacted by Congress – the Voting Rights Act is an example of that).

    The significant procedural point here is that the decision of the Penn. S. Ct. is not a ruling of a federal three judge panel on redistricting, so there is no mandatory right of appeal on the part of the Penn. Legislature. Instead, they have to apply for a writ of certiorari, which the S. Ct. can grant or deny in its sole discretion, including – if they choose – without giving any reason at all for the choice.

    That said, I would not be surprised if the S. Ct. did choose to take the case. Because of the inherent importance of the issue involved, because they are collecting up the batch of gerrymandering cases that we have been seeing, and because the North Carolina appeal involves U.S. Const. Art. I arguments and they may want to give general guidance on that topic.

    With greater confidence, I expect that there will be written opinions by one faction or other of the U.S. S. Ct. on the decision whether or not to grant cert. If cert. is granted, the losers will want to explain why it should not have been. And vice versa if cert. is denied.

    Before we get a decision an application for writ of cert., the Penn. Legislature is seeking a stay from the U. S. S. Ct., since the Penn. S. Ct. says the gerrymandered districting has to be fixed Now for the 2018 cycle. As we have seen, the U.S. S. Ct. has not been eager to let orders directing immediate fixes go forward, on the distinct tendency not to put state legislatures under too much time pressure (esp. since primaries are also affected by district line drawing). But the S. Ct. is put in a tight spot (good!) in choosing whether to grant a stay of the Penn. order from a state supreme court. To grant a stay would be a substantial interference with a decision of the highest court in a state that favors fairness. Not to grant a stay, however, would make their decisions to grant stays in Whitford, Benisek, etc., look odder.

    Interesting times in the gerrymandering world!

    • Sam Wang

      “Order first, decision later” seems strange. Time pressure, or hoping for a Whitford decision first?

    • LondonYoung

      There may also be an old Bush v. Gore point here that the court may want to clean up.
      The US constitution gives the state legislature certain powers – in this case how to choose the districts – in Bush v. Gore how to choose electors.
      To what extent may the state judiciary interfere with that power based on a state constitution?
      Clearly state courts are relevant in cases like Gil because that case involves state districts, not federal.
      And while SCOTUS can try to dodge this one, those pesky lower courts in the future are going to say “even when the famous Gill decision came down, that same nine member court did not interfere in PA”.
      So, IMHO, SCOTUS is stuck making a decision here.

    • Pechmerle

      Two important events today:

      — The Penn. S. Ct. denied the Legislature’s request that the Penn S. Ct. stay its own order. (For those unfamiliar with standard process, you almost always have to first ask the court that ruled against you for a stay pending appeal. This puts you in the position of asking the court that just ruled against you to say, that’s what we think but we could be wrong, so we’ll hold our decision in abeyance while you appeal. That rarely is the result, so then you get to re-apply for a stay at the next level. Occasionally, the original court will give you a few days stay so you can file your application for stay at the next level. But you often don’t even get that if the matter is time sensitive, as this order to redraw the maps so promptly is.)

      — The Penn. Legislature, ready to go as one would expect, immediately filed its application for stay at the U.S. S. Ct. Legislature is raising an Art. I Sec. 4 federal ground, that “Legislature” does not mean “state courts.” They are also relying on Bush v. Gore as precedent that the S. Ct. does review state supreme court rulings in federal election matters.

      Given the time pressure – Legislature has been ordered to produce new maps by Feb. 9 – we should get an order from the U.S. S. Ct. either granting or denying the stay within days. Won’t that be interesting.

    • Pechmerle

      The Legislature’s application for stay to the U.S. S. Ct. is here, if you’re interested. https://legalinsurrection.com/wp-content/uploads/2018/01/PA-Redistricting-Emergency-Application-for-Stay-to-US-Supreme-Court.pdf The argument is 22 pages, so don’t be discouraged that the PDF is 212 pages; it has a lot of exhibits.

      The application is directed to Alito, as the Justice assigned to handle emergency matters (e.g. stays of execution) from the Third Circuit, but in a matter of this importance (and no execution at midnight!) he would be expected to refer it to the full court.

    • LondonYoung

      J. Kennedy is now in a bind because PA legislature (gop) can assert that their districts are just fine. PA governor, a dem, will try to conduct election under districts drawn by the court. Neither side should back down.

  • Elise Abramson

    The reason I’m seeing stated in thread for why SCOTUS may choose to step in in what otherwise seems to clearly be a state (or commonwealth) case is as follow: that there’s a Art. I, Sec. 4 argument that legislatures are specifically empowered to draw the lines, subject only to federal law, not state. LondonYoung goes on to point out that the contours of this Article may have been muddied by Bush v. Gore and SCOTUS may step in not to interfere but to correct.

    I think that these would be stronger arguments but for SCOTUS already deciding the Arizona Independent Redistricting Commission case. Five of the Court held, “[r]edistricting is a legislative function to be performed in accordance with the State’s prescriptions for lawmaking, which may include the referendum.” Therefore, the Court has already decided that the legislature’s power to redistrict is subject to the laws of the state.

    • LondonYoung

      I think, in the AZ case, the word legislature was interpreted to mean lawmaking power – which included the body of voters.

      But I wonder if SCOTUS considers judges to be part of the “lawmaking” power too?
      The rest of us sure do!

    • LondonYoung

      The PA legislature’s filing begins by quoting SCOTUS, “Redistricting involves lawmaking”, and their second sentence accuses the PA court of assuming the role of “lawmaker”.

      I am not sure that argument works but it will sure rankle J. Ginsburg.

  • Bob Flood

    Here is a simple but unrealistic solution to the gerrymander puzzle: keep existing districts, but do away with the winner-take-all result. Instead elect (say) 2 reps and award them with their portion of the vote. So if one person gets 55%, give her .55 votes with .45 votes to the other candidate. In the legislature we’d just add up the fractions. So everyone’s votes count equally – as long as the districts are about the same size. Everyone has the same incentive to vote. Of course we’d need more desks in congress.

    • Howard

      it’s called proportional representation and variations of it are used in a few parliamentary systems. It has its own problems. For one it tends to exaggerate the power of fringe parties on both the right and the left depending on what the minimum threshold would be. One of the causes of the political polarization currently is the inability or unwillingness of the Republicans to deal effectively with the more radical elements on their right. As left wing elements in the Democratic Party become louder and more inflexible the problem will at least temporarily get worse. Proportional representation could make it even worse.

  • Siddharth Dasgupta

    Top Pennsylvania Republican Says He’ll Ignore Court Order To Help Fix Gerrymandering

    https://www.huffingtonpost.com/entry/joseph-scarnati-gerrymandering-pennsylvania_us_5a723db6e4b05253b27550c2

    • LondonYoung

      So, the legislature wants to follow the “contempt of court” path. As in Bush v. Gore, the state court is controlled by the dems, and the legislature is controlled by the GOP. However, unlike Florida in 2000, the governor’s mansion is controlled by dems – so the next step here is for the governor to put the GOP members of the legislature in jail, seize the desired data, and have the dem court’s California professor draw a bunch of dem districts.

      So it goes until J. Kennedy gets back to J. Alito on what to do …

  • Pechmerle

    The heat is getting even hotter in the Penn. Supreme Court. The Legislature has today (Friday) filed an application seeking to have Justice David Wecht recuse himself, as not impartial in the matter of the gerrymandering suit.

    Penn. is one of several states where Supreme Court justices are elected. In his election campaign, Wecht on several occasions at voter forums bluntly called Pennsylvania’s Congressional districting “insanely” gerrymandered. Lawyers for the Legislature now assert that Wecht had prejudged the gerrymandering dispute, and so his vote for the Jan. 22 order invalidating the 2011 districting plan should be disqualified. In that event, there would no longer be a majority for the Jan. 22 order. (I haven’t tried to delve into the procedural minutiae of how Penn. law says a judge disqualification challenge gets resolved, esp. at the level of the highest court.)

    The Legislature asserts that they only learned of Wecht’s anti-gerrymandering views in mid-January of this year. That seems disingenuous.
    Faced with a Supreme Court with a majority of Democrats through the electoral process, the lawyers for the Legislature should have been digging for bias information the instant the matter reached the Penn. S. Ct. back in Nov. (at the latest!). To bring it up only now that they have lost is a significant point against them.

    However, this controversy – even if somewhat manufactured – is one more reason why the U.S. S. Ct. might stay the order for immediate re-redistricting in Penn.

    Rick Hasen continues to predict that a stay won’t be granted by the U.S. S. Ct., and there will be an order accompanied by some dissenting opinions from the conservative justices who would have denied a stay. I think Hasen is too optimistic. Even if the Penn. Legislature is going to ultimately lose their appeal, I think the conservatives on the Court will stay the decision for now on the usual ground that not to do so would create too much confusion and certainty in the already-upon-us 2018 House election cycle. (See Purcell v. Gonzalez (2006) for established precedent for this approach.)

    • LondonYoung

      Pechmerle – can you tell me if I understand your prediction …
      It takes only four justices to grant cert, so the four most conservative are going to grant cert.
      This puts J. Kennedy a free pass on the “stay” decision because while he might not like the elections clause argument, the court will eventually have to decide on that argument but an opinion cannot be produced in a short time – and PA has argued uncertainly is bad for them until then.

      So he gets to vote stay without committing himself on cert.

      Then, conveniently, he doesn’t need to deal with PA until he has already penned Gil – and can fine tune his old Bush v. Gore decision before retiring if he so chooses …

      If I understand correctly, this seems nearly certain to be what he will do.

    • Pechmerle

      London, good point about only four votes necessary to grant cert.

      I think Roberts will be torn about that. He won’t want the Penn. S. Ct. ruling to stand, but he also would rather the S. Ct. not have to wade into this mess. I suppose, since Gill, Benisek, and the North Carolina cases are already at the U.S. Ct. Roberts will go ahead and support cert, in the Penn. case (eventually, see below).

      As for my specific prediction, though (and you’ve helped me refine it), what I expect is that a stay of the Penn. order will be granted, with dissents from at least Ginsburg & Sotomayer that they would have denied a stay, and the order will also reserve determination of the application for writ of cert. until briefing on that is in hand. This approach would be consistent with the treatment of Gill and Benisek, where they have granted stays but reserved determination of jurisdiction (is there a true federal claim, is it a proper 3-judge court case, etc. — surely all yes, but they have declined to say) until briefing on the merits.

      Further, I continue to be very troubled that the Penn. S. Ct. has not issued its full opinion for its reasoning of why it ruled that the Penn. constitution is violated by the current Penn. Congressional districting. The absence of that opinion, it seems to me, helps the conservatives on the U.S. S. Ct. justify granting a stay ‘ until the picture on which they have to ultimately rule becomes clearer.’ I really don’t understand what the Penn. S. Ct. is thinking by delaying issuing that reasoned opinion.

    • Mike Clinch

      Just in this morning – Justice Alito turned down the appeal to the U. S. Supreme Court, which means that the PA Supreme Court verdict stands, and the legislature has less than two weeks to prepare districts that the Democratic governor would approve. It seems the likeliest outcome is that the court draws the districts for this fall.

    • Some Body

      Also, if I understand correctly, there was no dissent, at least no public dissent, on the decision not to grant stay. Or am I getting anything wrong?

  • JJ

    SCOTUS just denied the stay. Penn. must redraw the maps before their midterms.

    http://thehill.com/homenews/state-watch/372352-supreme-court-denies-stay-in-pa-gerrymandering-case-reports

  • Pechmerle

    Wow! I am happily surprised to be wrong on how this would go.

    For those who have raised the point, there was no dissent on this order because Alito made it by himself — as circuit justice for emergency applications for the Third Circuit — without referring it to the full Court. So it was not before them to approve or dissent.

  • Pechmerle

    Undeterred:

    A member of the Penn. General Assembly is urging Republican colleagues to co-sponsor articles of impeachment against five of the seven justices on the Penn. S. Ct.!

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