Two Fast-Tracked Court Cases Could Change The Political Face Of Pennsylvania

Nov 15, 2017

With drastic changes to Pennsylvania’s political landscape hanging in the balance, two lawsuits challenging the state’s congressional map are moving forward at rapid speed — one in state courts, the other in federal.

After considering motions to intervene, delay and dismiss the cases, the Pennsylvania Supreme Court and a three-judge panel on the United States Court of Appeals for the Third Circuit have teed the cases up to be heard next month.

Both challenges claim the state’s 2011 congressional district map is a partisan gerrymander designed to give Republicans an electoral advantage.

Partisan gerrymandering is analogous to a team crafting for itself the ultimate home field advantage.  The home team — the political party that controls the state legislature — decides where the game is played and the boundary lines of the field. And the basic idea is to draw them to ensure that more of your players — voters — are on the field than your opponent’s.

In these two lawsuits, petitioners have thrown red flags — challenging the constitutionality of how the home team, in these cases high-ranking Republican lawmakers, drew the lines.

If successful, the cases could trigger a new map that would change the makeup of voting districts before the 2018 midterm elections, when all of Pennsylvania’s 18 seats in the U.S House of Representatives are up for grabs.

State case

During the 2011 redistricting process, Republicans controlled all three branches of Pennsylvania government and created a congressional map considered by some to be the most egregious example of gerrymandering in the nation.

In a trial soon to be litigated in Pennsylvania’s Commonwealth Court, 18 petitioners, all Democrats, claim that Republican legislators violated the state constitution by intentionally manipulating congressional districts to maximize the political advantage of Republican voters and to minimize the representational rights of Democrats.

The lawsuit claims the General Assembly deliberately took into account political views, voting histories, and party affiliations when deciding district boundaries, which they argue violates voters’ freedom of expression and equal protection rights under the state constitution.

“From our perspective, whether it was the Republicans in control and gerrymandering or if it were the Democrats in control and gerrymandering, either way it’s bad,” said Mimi McKenzie, one of the attorneys representing petitioners. “Either way it’s done, it results in politicians picking their voters rather than voters electing their leaders and that’s not the way it’s suppose to work in a democracy.”

McKenzie, legal director at the Public Interest Law Center, says the lawsuit asks basic questions: Who drew the map? And what criteria was taken into account to determine the districts?

“I think it really strikes people when they look at these bizarrely shaped districts that something’s not right here, something’s really amiss,” she said.

Although the 2011 redistricting process was controlled by high-ranking Republican leaders, the map did garner significant support from Democrats.

Why?

In some cases, the lines seem to have been drawn to pack Democrats into districts designed to keep incumbents safe in party strongholds like Philadelphia and Pittsburgh — which contributed to making general elections less competitive.

After the first pre-trial hearing in October, a Commonwealth Court judge granted a stay in the case, giving GOP leaders their request to put the case on ice. But the judge also encouraged the petitioners to request an expedited trial directly to the Pa. Supreme Court.

Last week, in a 4-3 decision the high court overturned the stay and ordered the lower court to reach a decision on the merits of the case before the end of the year.

The case is scheduled to be heard in Commonwealth Court on Monday, Dec. 11 in Harrisburg.

Federal case

Similar to the case in Commonwealth Court, a federal lawsuit brought by five Pennsylvania voters also claims that the state’s 2011 congressional map is an illegal partisan gerrymander.

The federal case, though, relies on a unique legal strategy.

Their logic draws on an untested theory hinging on the Elections Clause of the U.S. Constitution, which they interpret as protecting voters from having the state come between the people and their national government.

“The legislature does not have the authority to pick winners and losers in elections,” said Tom Geoghegan, an attorney for the petitioners, in a pretrial hearing.

Like the case in state court, petitioners argue that the Republican-controlled legislature used likely voting preferences and partisan information to determine congressional districts.

But in their lawsuit — unlike the state case which focuses on limiting extreme examples of partisan gerrymandering — they argue that under the Elections Clause there is no authority to gerrymander at all, and call for zero tolerance.

“If we win this case, the era of gerrymandering is over,” said attorney Alice Ballard at the hearing.

The trial in federal court is scheduled to begin Monday, Dec. 4 in Philadelphia.

The respondents

In both cases, in addition to GOP leaders, Governor Tom Wolf, Secretary of State Pedro Cortes and Commissioner of the Bureau of Elections Jonathan Marks are named in their official capacities as respondents. But those parties have been largely silent on the matter, leaving high-ranking Republican leaders to defend the map.

Attorneys representing Senate President Pro Tempore Joe Scarnati (R-Jefferson County) and House Speaker Mike Turzai (R-Allegheny) had argued that both cases should have been put on hold until the U.S. Supreme Court decides a similar case out of Wisconsin that will have national ramifications.

But, in both cases, the courts eventually rejected that logic, forcing GOP leaders to justify the 2011 redistricting process.

Drew Crompton, chief of staff for Senator Scarnati, says everything boils down to one essential question: are the districts constitutional?

He believes the answer is clear.

“It doesn’t matter what legal, novel theory people come up with. When they were drawn, they were drawn in accordance with a long legacy of cases decided by the U.S. Supreme Court,” said Crompton.

The current case before the U.S. Supreme Court, Gill v Whitford, could potentially overturn precedent, but a decision is not expected until June 2018, after the Pennsylvania cases would be decided.

The last time the U.S. Supreme Court ruled on partisan gerrymandering involved a 2004 case out of Pennsylvania, Vieth v. Jubelirer.  In a 5-4 decision, the high court dismissed the claims and said political gerrymanders were not new and existed since the framing of the constitution.

In the majority opinion announcement Justice Antonin Scalia wrote:

The basic problem is that some degree of political motivation and effect in districting is not unconstitutional.

No one contends that a decent amount of political motivation and political effect is unlawful.

So, it comes down to determining how much political motivation and effect is too much.

We find it impossible to craft the standard that is clear enough and enough rooted in constitutional imperatives to render judicial entry into this political field appropriate.

When pressed about the strange shapes of the districts, some that divide communities, Steve Miskin, spokesman for Turzai, says determining congressional boundaries is not easy.  He says with almost 13 million people in Pennsylvania and only 18 seats to fill — the districts will never appear within perfect, straight lines.

“In the end, the facts are going to be the facts, and the facts are going to show that we followed the rules and followed the constitution,” said Miskin. “The only people disenfranchising the voters are the people trying to disrupt the election as candidates get ready in 2018.”

The effect on the 2018 midterm election is being taken into consideration in the state case.

Judge P. Kevin Brobson has allowed a group of more than 30 Republican candidates, party members, and volunteers who have been actively working on congressional campaigns to join the case as respondents.

Lawrence Tabas, an attorney representing the group, said any change to the congressional maps before the 2018 elections would create mass confusion and harm candidates and citizens who have already put time, money and effort into campaigns.

“They’re asking for a new map at the last minute. This has been in place for three election cycles,” said Tabas. “Any changes to the map for next year are fundamentally unfair.”

Crompton agrees with Tabas and is quick to point out that the petitioners had nearly six years to file their challenge, yet expect a resolution before the eve of the next election.

“It’s astounding to me that we are on such a short timeline,” said Crompton.” The court seems to be playing into the hurry up offense, if you will. Meanwhile, [election] cycles have come and gone and there was nobody issuing any action.”

Whichever way the three-judge panel in federal court and Judge Brobson in Commonwealth Court rule — it is almost certain — their decisions will be appealed.