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Game over in Pennsylvania!

March 19th, 2018, 3:49pm by Sam Wang

Today came two rulings. First, a three-judge court turned down a challenge to the redrawn Pennyslvania Congressional map. Then, a few hours later, the U.S. Supreme Court did the same.

These were long-shot cases, since they would have involved finding that the Pennsylvania Commonwealth Constitution was in conflict with the United States Constitution, for example if there were an affirmative right to gerrymander in the latter. It would have been tortured logic, and it appears that there were not enough votes on the Supreme Court to go there. This outcome is logically unsurprising…but still a relief.

There was talk about finding a reason to overturn the state court’s decision using Article I, which states that the legislature has the power to set the manner of elections. However, this would go against considerable court precedent. That might fly when the Presidency is at stake (i.e. Bush v. Gore), but to swing half a dozen Congressional seats? As of 2018, no.

So…game over for partisan gerrymandering in Pennsylvania’s Congressional delegation! At least for 2018, and probably 2020. After that…we start over again with the next Census and redistricting.

Tags: 2018 Election · 2020 Election · Redistricting

15 Comments so far ↓

  • Siddharth Dasgupta

    I wonder if this would have any influence on the two cases SCOTUS has before it?

    • Sam Wang

      Probably not, since the legal principles at stake are different. The current cases are federal, whereas this was a state case. Though I suppose the zeitgeist is now anti-gerrymandering.

    • LondonYoung

      I would rather ask “I wonder if these decisions were influenced by the as-yet-undisclosed decisions in the two cases SCOTUS has before it?”

      I find it hard to imagine SCOTUS blocking the PA court’s decision saying PA lacked the authority, but then (after it is too late for 2018) demanding the same remedy on their own authority. Legally this would pass muster, but it would be counterproductive and just look plain crazy.

      So, on a Bayes’ Rule basis we should move the needle closer to Whitford’s position.

    • Pechmerle

      LondonYoung, there would not be “as-yet-undisclosed decisions” in the two SCOTUS cases, because in Benisek they have not even had oral argument yet. (That is coming up, on Mar. 28, though.)

    • LondonYoung

      Ah, I was not aware. That is important – and I expect we will learn something on the 28th …

      I don’t have a feeling for whether the justices care much about those oral arguments, but I am pretty certain they will not authorize their clerks to start coordinating on writing an opinion until afterwards.

    • Pechmerle

      The justices meet for the first time to hold a preliminary vote and discuss the possible decision of a case at a conference during the week of oral argument. For an argument heard on a Wednesday, the conference is held Friday afternoon of that week.

  • Some Body

    The map that was struck down was the US House map. Do we know of any challenges that would reflect on the PA legislature itself? Same for other states, really. That’s where gerrymandering originates.

    • LondonYoung

      The GOP do have the numbers to remove the 5 dem justices, but they do not hold the governor’s mansion, so there would be only two justices remaining and no ability to appoint new ones.

      I don’t know if there is any “minimum number of justices” requirement, but this is the path by which democracies yield to dictatorship …

    • Pechmerle

      There are quorum rules for the Penn. S. Ct., but I haven’t tried to figure out how they work in detail.

    • Josh

      How would impeaching the Dem justices change the map? IIRC the governor (also Dem) would appoint their replacements…?

    • 538 Refugee

      The question becomes, is this an honest attempt or is it election year politicking? Are they afraid the state legislature maps can fall to the same challenge? They can’t get new justices and restore the map for this election cycle so they may want to rethink having this opinion voided because the opposition party could well be in power during the next redrawing so they would lose twice.

    • LondonYoung

      Josh – the idea is that they remove all the justices they don’t like, reject any replacement candidates from the governor, and have their remaining two justices reverse the original decision. In the US, the highest court is always free to reverse itself.

      FDR’s court packing plan was a related type of maneuver.

      As 538 Refugee points out, though, what goes around comes around.

    • Richard Simpkins

      Yes, it’s still over. Impeachment (unlikely, anyway) would matter for the *next* redistricting. It wouldn’t reverse these rulings, nor would it change the map for 2018 or probably even for 2020.

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