How SCOTUS’ gerrymandering decision could put Pennsylvania’s own ruling in the spotlight

By: - June 27, 2019 2:27 pm

Pennsylvania’s old congressional map was ruled an unconstitutional gerrymander by the state Supreme Court last year. (US Government)

The U.S. Supreme Court on Thursday ruled that federal courts have no role to play in adjudicating accusations that political boundaries were drawn for partisan purposes. 

That 5-4 decision will have no impact on Pennsylvania’s congressional map, which was redrawn as the result of a state Supreme Court gerrymandering decision in 2018.

The new map used in 2018 will remain in effect for the 2020 primary and general elections, said Ben Geffen, a staff attorney at the Philadelphia-based Public Interest Law Center who worked on the case.

What today’s decision did determine, Geffen said, is that “the U.S. Constitution offers voters no protections if politicians deliberately manipulate district lines to entrench themselves in power, maximize partisan advantage, and thwart the will of the voters.”

As you can likely tell, Geffen said the Public Interest Law Center is “deeply disappointed” by Thursday’s decision. But he is hopeful their 2018 victory will serve as a roadmap for other states.

“We’re very fortunate in Pennsylvania that we have a state Constitution that protects voters against that sort of partisan manipulation,” he said.

‘Free and equal’ elections

Here’s what Geffen is talking about.

In 2017, the League of Women Voters of Pennsylvania, as well as individual voters, filed a lawsuit in Commonwealth Court challenging the state’s congressional map, which they alleged intentionally and unfairly packed Democrats in a small number of districts.

“This map was drawn to ensure that our general elections will be decided before voters even go to the polls on Election Day,” Mimi McKenzie, legal director with the Public Interest Law Center, said in a statement at the time.

After an expedited trial, the state Supreme Court ruled in January, 2018, that the map violated the state Constitution’s “free and equal” elections clause.

“An election corrupted by extensive, sophisticated gerrymandering and partisan dilution of votes is not ‘free and equal,'” Justice Debra Todd wrote on behalf of the majority.

The district lines crafted by Republican former Gov. Tom Corbett and the GOP-controlled Legislature were thrown out and eventually replaced with ones commissioned by the court.

Geffen noted that about half of U.S. states’ constitutions contain a provision similar to Pennsylvania’s. An article in Publius: The Journal of Federalism found that 12 other state constitutions put on emphasis both on the words “free” and “equal.”

The U.S. Constitution offers no counterpart.

“Every state constitution has a stronger protection for the right to vote than the U.S. Constitution,” he said.

Not everyone in Pennsylvania cheered the Public Interest Law Center’s victory.

Republican leaders in the General Assembly fought the decision and appealed to the U.S. Supreme Court for assistance, which was denied.

The state GOP party said in a statement that Thursday’s decision “is confirmation of what we’ve known all along: Democrat activists in black robes on the Pennsylvania Supreme Court overstepped their bounds by painstakingly reading phantom requirements into the Pennsylvania Constitution to void the 2012 Congressional map and give itself the authority to act as a shadow legislature to force a Democrat-created partisan gerrymander on Pennsylvania.”

Five of the state Supreme Court’s seven justices were elected as Democrats.

 While Thursday’s U.S. Supreme Court decision is seemingly the end of the line for federal gerrymandering lawsuits, it didn’t shut the door on ones brought in state court.

“We’re hopeful that other state courts around the country will follow the lead of the Pennsylvania Supreme Court,” Geffen said.

He noted that the Pennsylvania ruling “was the first and only time so far in American history that a court has struck down a state congressional map on partisan gerrymandering … on a basis of a broad guarantee in a state constitution.”

Next steps in Pennsylvania

While the 2018 Pennsylvania Supreme Court ruling threw out the state’s congressional map, it did not address the ones that govern the state House and Senate.

Unlike the congressional map — which is drawn by the Legislature and approved by the governor — the state legislative maps are drawn by a committee made up of top Republican and Democratic lawmakers. This happens every 10 years, after the U.S. Census Bureau conducts its decennial survey of households.  

Geffen said the state Constitution provides just a 30-day window after these districts are redrawn to challenge the boundaries.

That’s what happened in 2012, when the law center represented Republican Amanda Holt, who claimed the five-member Legislative Reapportionment Commission unnecessarily split up municipalities. An appeal was also brought by Sen. Jim Brewster, D-Allegheny, whose district was moved across the state.

The state Supreme Court ruled against the maps in 2012, forcing the leadership commission to go back to the drawing board. Holt and other parties maintained that the revised maps still violated the state Constitution, but the court upheld the plan in 2013.

Fast forward to 2019.

After a flurry of excitement and activity around redistricting in 2018, the Legislature failed to take up any meaningful reforms. Good-government activists are optimistic there’s still interest in creating an independent citizen commission to draw political boundaries, but time is running out.  

Geffen said he’s hopeful that, in 2021, the leadership commission “will draw a map that is not based on trying to maximize advantage for any political party.”

“If they do it, we’ll be back in court under that state constitutional provision.”

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Sarah Anne Hughes
Sarah Anne Hughes

Associate Editor Sarah Anne Hughes covers the governor and Pennsylvania's agencies. Before joining the Capital-Star, she was the state capitol reporter for Billy Penn and The Incline, and a 2018 corps member for Report for America. She was previously managing editor of Washington City Paper, editor-in-chief of DCist, and a national blogger for The Washington Post.