Justices Explain Decision In PA Gerrymandering Case, As Clock For New Map Ticks Down

Feb 7, 2018

UPDATED: 10:18 p.m. Thursday, Feb. 8, 2018

Pennsylvania lawmakers headed home Wednesday with two days left to comply with a court order to redraw boundaries of the state's widely criticized congressional districts as top Republican lawmakers hunkered down to figure out a plan.

Voting sessions were canceled amid a winter storm, and rank-and-file lawmakers awaited word from House Republican leaders about whether they would be recalled to Harrisburg by Friday's deadline to vote on a new congressional district map that they had not yet seen.

Drew Crompton, chief of staff to Senate President Pro Tempore Joe Scarnati, said Wednesday it was "highly unlikely" the Republican-controlled Legislature could pass a bill containing new boundaries for 18 congressional districts by the end of the day Friday.

Rather, a possibility is that Scarnati, R-Jefferson, and House Speaker Mike Turzai, R-Allegheny, — the Legislature's presiding officers — would sign a document containing new congressional boundaries and deliver it to Democratic Gov. Tom Wolf by Friday's deadline, without bringing it to a vote, Crompton said.

Any redrawing of the boundaries is expected to make the districts less friendly to Republicans, and give Democrats a boost as they try to take control of the U.S. House of Representatives in November's election. The state Supreme Court's order means the boundaries of Pennsylvania's congressional districts are up in the air barely three months before the May 15th primary.

Meanwhile, late Wednesday afternoon, the court issued a 139-page majority opinion explaining why it had found Pennsylvania's congressional districts to be unconstitutionally gerrymandered to benefit Republicans, 16 days after ordering the new boundaries.

Justice Debra Todd wrote that the plan violates the elections clause of the state's Constitution, which guarantees that elections "shall be free and equal."

Todd wrote that a map of congressional districts violates that clause when neutral standards such as compact and contiguous districts are subordinated for unfair partisan political advantage. Those standards were first written into the state Constitution in 1874 to address gerrymandering concerns in state legislative districts, and are suitable to apply now to the state's congressional map, Todd wrote.

"Such a plan, aimed at achieving unfair partisan gain, undermines voters' ability to exercise their right to vote in free and 'equal' elections if the term is to be interpreted in any credible way," Todd wrote. "An election corrupted by extensive, sophisticated gerrymandering and partisan dilution of votes is not 'free and equal.'"

The court struck down the Republican-drawn district boundaries on Jan. 22, in a victory for the registered Democratic voters who sued last June. The boundaries, used in three straight elections going back to 2012, "clearly, plainly and palpably" violated the state constitution, the justices wrote in a 5-2 decision that broke along partisan lines, with Democrats in the majority.

Three justices raised objections and wrote their own opinions. They argued that the legislature should have more time to carry out what is a complex, political process.

 

“The Court’s remedy threatens the separation of powers dictated by . . . the United States Constitution by failing to allow our sister branches sufficient time to legislate a new congressional districting map,” wrote Justice Max Baer, elected as a Democrat, in a concurring and dissenting opinion.

 

While Baer joined the majority in finding the existing map to be an unconstitutional gerrymander, he dissented on several points.

 

University of Pittsburgh law professor Jessie Allen observed that, while the timeline is fast, the four-justice majority appears determined not to put voters through another election with a map it deems unconstitutional.

“This court obviously thinks enough is enough, and they want to offer the possibility of changing it in time for the upcoming primary,” Allen said.

 

She also noted that election law cases tend to occur in election years, when people are most concerned about upcoming races.

 

“Courts presented with those challenges always are confronted with the problem of whether to make the effort to fix it in time for what the parties who are bringing it think matters,” she said, “or whether to wait and stick with the status quo and say, ‘No, we won’t intervene.’”

 

The U.S. Supreme Court on Monday turned down Turzai and Scarnati's request to halt the redrawing. However, Crompton said Wednesday that the court's opinion could provide new fodder for another appeal to the U.S. Supreme Court. He said it does not answer the question of how much partisanship is allowed in drawing congressional boundaries, and he said the timing of the opinion made it nearly impossible to comply with court-ordered deadlines.

"They just gave us 200 pages of narrative to follow, 48 hours before our own deadline, 16 days later," Crompton said. "It's absurd."

Neither Wolf's office nor Senate Minority Leader Jay Costa, D-Allegheny, said they had heard from top Republicans about collaborating on a bipartisan product.

"The governor's been clear about what he wants," said press secretary J.J. Abbott. "We're ready to review something and determine whether it's fair."

As of Wednesday, House Republican leaders had not shown any new plan to rank-and-file members or told rank-and-file members whether they had made a decision to bring a plan to a vote.

If he accepts the Republican product, Wolf must submit it to the court by Feb. 15. Otherwise, the justices wrote, they would adopt a plan no later than Feb. 19, potentially one proposed by a party to the case, to keep the primary election on schedule.

Some House Republicans said they did not want the chamber to vote on a map and thus dignify a court-ordered process that they see as unconstitutional.

The map has produced three straight elections of 13 Republicans to five Democrats. The majority of statewide elected officials in Pennsylvania are Democrats, and registered Democratic voters outnumber Republican ones by a 5-to-4 ratio.

The Associated Press contributed to this report.