Just under a month ago, the Pennsylvania Supreme Court issued a ruling finding the current Congressional District map, drawn by a Republican-dominated state legislature in the wake of the 2010 election and the outcome of the 2010 Census to be unconstitutional under the terms of the state’s Constitution. In the Order that the Court issued at that time, the legislature was given a limited amount of time to come up with a new map that was in compliance with the state’s Constitution and the State Supreme Court’s ruling. The Republican legislature first responded to that ruling by taking the matter to the U.S. Supreme Court, asking the Court to put a hold on the state Supreme Court’s ruling pending appeal, but the Supreme Court declined to do so. The Court also stated that it would submit a map of its own if the legislature proved unable to come up with an acceptable map by the time the deadline passes. That deadline passed earlier this month with the legislature and the state’s Democratic Governor unable to come up with a map that either side could accept, so yesterday the Supreme Court issued a new order that includes a new map meant to address the Court’s ruling, and the resulting map seems likely to benefit Democrats to at least some extent:
The Pennsylvania Supreme Court drew new boundaries for the state’s congressional districts on Monday, releasing a map that, if it stands, could play a significant role in Democratic Party efforts to gain control of the House of Representatives in the midterm elections.
The court ruled in January that the state’s existing congressional map was an illegal partisan gerrymander that “clearly, plainly and palpably” violated the State Constitution. Under that map, Republicans have repeatedly won 13 of the state’s 18 House seats.
Election analysts said that the court’s new map could result in Democrats picking up three or four more seats, based on 2016 voting patterns. Pennsylvania is a perennial battleground in statewide elections, with voters supporting the two parties in roughly equal numbers. Critics have pointed to the current imbalance in House seats to highlight the unfairness of the current map, which was drawn in 2011 by Republicans.
Republicans in the State Legislature said they would challenge the new maps in federal court.
“Implementation of this map would create a constitutional crisis where the Pennsylvania Supreme Court is usurping the authority of the legislative and executive branches,” the leaders of the State Senate, Joe Scarnati, and the House, Mike Turzai, said in a statement. “This map illustrates that the definition of fair is simply code for a desire to elect more Democrats.”
But some election law experts said Republicans’ legal options were narrow. Earlier this month, the United States Supreme Court refused to block the remapping process.
The Pennsylvania high court’s actions have unfolded in a monthslong challenge to the existing congressional maps begun by the League of Women Voters. The court based its rulings on the State Constitution. The United States Supreme Court typically respects such decisions.
Separately, the United States Supreme Court is considering two challenges to partisan gerrymandering in Wisconsin and Maryland. Those cases were brought through federal courts, unlike in Pennsylvania. A major decision is expected later this year.
In drawing its maps — in part with the advice of a Stanford law professor, Nathaniel Persily, known for his expertise in legislative districting — the Pennsylvania Supreme Court rejected two competing maps drawn by Republicans and Democrats. The court said that unlike the offerings from partisan mapmakers, the districts it drew “follow the traditional redistricting criteria of compactness, contiguity, equality of population, and respect for the integrity of political subdivisions.”
The court’s maps split only 13 counties, compared with 28 counties that are divided under the maps currently in use, which were drawn in 2011 by Republicans in the Legislature. One of the current House districts is so tortured in its shape it earned the nickname “Goofy Kicking Donald Duck.”
Gov. Tom Wolf of Pennsylvania, a Democrat, who had exercised his power to veto a map offered by Republican lawmakers, welcomed the districts drawn by the court.
“I applaud the court for their decision and I respect their effort to remedy Pennsylvania’s unfair and unequal congressional elections,” Mr. Wolf said in a statement.
Election law experts said the new map created an equal number of districts favoring Democrats and Republicans. “It appears to be tilted toward neither political party,” Michael McDonald, an associate professor of political science at the University of Florida, said. “It looks more like a 9-to-9 division of the state.”
David Wasserman, the House of Representatives editor of the Cook Political Report, wrote on Twitter that the map had not simply undone the Republican gerrymander. It also took into account the fact that Democrats tend to cluster in cities and college towns, “actively helping Dems compensate for their natural geographic disadvantage.”
Some Republican incumbents instantly found themselves on shakier ground. Representative Ryan Costello’s Sixth District, which had been Republican-leaning territory in Southeastern Pennsylvania, has morphed into a Democratic-leaning district, Mr. Wasserman wrote.
And some open seats, like those currently held by the retiring Republicans Charlie Dent and Patrick Meehan, are now more likely to end up in Democratic hands, Mr. Wasserman said.
The question now is whether the map, issued in a 4-to-3 opinion that split along partisan lines, will hold.
Here’s what the current Pennsylvania Congressional District Map looks like: (Click image to enlarge)
By contrast, here’s what the map that the Court released yesterday looks like: (Again, click to enlarge)
The differences between the two maps could not be more apparent. Where the current maps include several districts that are drawn in bizarre patterns that in some ways mimic the shapes of districts we’ve seen from other states, especially in the areas around Philadelphia and Pittsburgh where there are significant minority populations centered in and around the respective urban areas, the revised map contains far more compact and geographically consistent districts. Many people will note that several of the districts in the revised map appear to be very large in size compared to their predecessors, but it’s worth keeping in mind that these districts include large parts of the state that are far less populous than other parts of the state. This is particularly true of the proposed 12th, 13th and 15th districts which take up most of Central Pennsylvania and, to a lesser extent, the proposed 14th, 8th, and 9th district which respectively consist of the southwestern and northeastern corners of Pennsylvania. Obviously, because of the lower population, it’s necessary to make these districts larger than some of their counterparts in and around Philadephia and Pittsburgh.
In addition to this, the other most notable thing about the revised map released by the Pennsylvania Supreme Court is the extent to which it has managed to take many of the most bizarrely shaped districts that are part of the current map and convert them into sizes and shapes that make far more sense than what is currently in existence. This is particularly evident in the area west of Philadelphia where the current 6th, 7th, 15th, and 17th Districts all have bizarre and seemingly nonsensical shapes that don’t make any geographic sense and which clearly seem to be designed to include or exclude areas that tend to favor one party or the other, In the revised map, the area previously covered by those districts is now largely taken up by the proposed 4th, 6th, 7th, 8th, and 9th districts, each of which covers far more sensible geographic regions. The same can be seen with regard to the 12th and 18th Congressional Districts that surround Pittsburgh, which makes up most of the 14th District. Those districts are replaced in the revised map by revised versions of the 17th and 18th Districts, with some of the areas that used make up each going to either the 13th District in the state’s northwest or the 13th and 15th Districts. Again, the revised maps suggestion seem to make far more sense than the districts the state has now. Additionally, it’s worth noting that all of these districts consist of more or less equivalent numbers when it comes to the actual population of either total residents or people of voting age, and they manage to do so in a way that makes sense and doesn’t seek to create a partisan advantage for one part or another.
Most of the press coverage of the revisions the Supreme Court has submitted is emphasizing the fact that the map would benefit Democrats, but it strikes me that this is the wrong way to look at it. Yes, it’s true that Democrats would be likely to become a larger part of the Pennsylvania Congressional Delegation if these changes are implemented, but that is largely a reflection of the fact that the current map was quite obviously designed to benefit Republicans. Indeed, the immediate reaction by several people who are more expert in Pennsylvania elections than I am or would ever claim to be have said that the most likely outcome in an ordinary election year based on the Supreme Court’s map would be a relatively even division of the state’s 18 Congressional Districts between Republicans and Democrats.
Not surprisingly Republicans in the Pennsylvania state legislature are already talking about taking the new Court-imposed map to Court:
Republicans say they’ll go to federal court this week to try to block new court-ordered boundaries of Pennsylvania’s congressional districts from remaining in effect for 2018’s elections.
Top Senate Republican lawyer Drew Crompton said Monday a separation of powers case will form the essence of the GOP’s argument. Crompton won’t say whether Republicans will go to a district court or the U.S. Supreme Court or what type of legal remedy they’ll seek.
But the case will involve making the argument the U.S. Constitution gives state legislatures and governors, not courts, the power to draw congressional boundaries.
Election law blogger and Law Professor at the University of California at Irvine Rick Hasen notes, however, that the GOP’s legal options are limited and probably fruitless:
Because this was a case decided under the state constitution by the state supreme court, the usual path for review of this case by the U.S. Supreme Court is limited. The only plausible argument I see is that the maps violate the Elections Clause of the Constitution, which vests in the state legislature the power to choose rules for congressional elections (unless Congress acts to preempt them).
The problem with this argument is that the Pa Republicans already went to the Supreme Court when the state supreme court announced a redistricting- and Republicans raised the very same argument. At the time it was raised, I called the argument a long shot, given a line of cases (most recently a 2015 case from Arizona) reading the word legislature much more broadly in the context of the elections clause. The emergency stay request went to Justice Alito, who denied it without even referring it to the Court. So he likely did not think much of it at the time.
Now it is quite possible that Pa. Republicans will go back to Justice Alito, arguing that things are even worse now that the state Supreme Court has adopted a map itself. That’s the job first and foremost for the legislature. But remember that the Pa. legislature did not even come up with an official passed plan for the state supreme court to reject. (A pair of legislative leaders had a plan, but it was not passed by the legislature.) This seems to give Pa. Republicans even less standing to complain about things. I expect something new filed with Justice Alito will get no further. (After all, we are even later into the election season.)
As Hasen goes on to note, there are also suggestions that Pennsylvania Republicans could seek to attack the Pennsylvania Supreme Court’s new map using essentially the same argument Hasen discusses above but doing so by filing a separate legal proceeding filed in Federal Court. If they chose this avenue, though, the legislators would likely run headlong into two legal problems that could ultimately doom their claims. The first problem is that the ordinary procedure for one who objects to the ruling of a state Supreme Court is to petition the Supreme Court of the United States to review the case. This is because the ruling of a state’s Supreme Court is deemed to be the highest legal authority of the respective state and its ruling are supposed to be given much of the same deference as a ruling from the U.S. Supreme Court. This is especially true when the state Supreme Court ruling in a particular case is based primarily if not exclusively on state law or the interpretation of that state’s Constitution. Challenging that kind of ruling via a collateral proceeding in Federal District Court is both highly unusual and not usually successful. Additionally, such an action would run headlong into something called the Rooker-Feldman Doctrine, which states that Federal Courts below the U.S. Supreme Court should not “sit in direct review of state court decisions unless Congress has specifically authorized such relief.” Under this doctrine, absent Congressional authority, which does not appear to exist in this case, or parties who have raised some compelling argument that the state court has somehow violated the Federal Constitution. As Hasen notes, that argument doesn’t seem to be particularly strong at all.
All of this is occurring, of course, in a legal climate where partisan redistricting appears to be under a particularly strong assault. The U.S. Supreme Court, for example, has accepted cases dealing with allegations of partisan gerrymandering from Wisconsin and Maryland. The Court has already heard oral argument in the Wisconsin case and will likely hear argument in the Maryland case later this term. Additionally, a three Judge panel of Federal District Court Judges handed down an opinion last month finding the district lines in North Carolina unconstitutional due to their partisan nature in a ruling that was similar to those issued in the Wisconsin and Maryland cases. The outcome in these three case at the Supreme Court level is unclear at this point but, based on the oral argument in the Maryland case, it appears that the outcome of the case is likely to come down to which side of the argument ends up being most persuasive to Justice Anthony Kennedy. During the oral argument in question, Kennedy appeared to be skeptical of the argument raised by the lawyers defending the existing districts in Wisconsin, but also expressed some skepticism about the use of the mathematical formula that the Plaintiffs relied upon in their analysis of the current Wisconsin map. The outcome of these cases will have a significant impact on the midterm elections in the states in question. If the case ends up being decided in favor of the Plaintiffs, it’s likely to lead to nationwide challenges to similarly drawn maps, While most of these challenges will not come soon enough to have an impact on this year’s midterms, they could have an impact in 2020 and, beyond that, on the redistricting that will have to take place after the 2020 census.
