By now, voters are depressingly familiar with the term “gerrymandering” and the many ways it has been used by legislators in Pennsylvania and other states to draw district lines that protect them from voters of the opposite political party. For almost as long as our system of government has existed, lawmakers have been drawing contorted district maps in order to lock in political power in state legislatures and U.S. Congress.
But, has anyone ever tried to gerrymander courts? Is that even possible? Unfortunately, Pennsylvania voters may be about to find out.
This week, Republicans in the House of Representatives announced plans to reintroduce their proposed constitutional amendment that would require Supreme Court justices, and judges of the Superior and Commonwealth Courts, to run for election in regional districts rather than statewide.
Under the bill, the General Assembly would create these new judicial districts based upon the number of justices or judges on each court. Since the three appellate courts have different numbers of judges – Supreme Court (7), Superior Court (15) and Commonwealth Court (9) – this means the legislature would be able to carve the state into 31 new districts of varying size.
The purpose of the bill, according to its sponsor, is to increase the geographic diversity of the courts and specifically to encourage the election of jurists from outside the major metropolitan areas of Philadelphia and Pittsburgh. By requiring one judge or justice per district and near equality of population in each district, the bill guarantees that all parts of the state will have “representation” on the appellate courts. Unfortunately, the proposed amendment does not guarantee that all voters will have an equal opportunity to elect their preferred jurists.
On the contrary, the lack of strict mapping criteria or any protections for racial and language minorities – combined with a total lack of transparency in the mapping process – amounts to an open invitation to legislators to engage in partisan gerrymandering in order to increase the likelihood that candidates of their political party will be elected to the courts.
The first time this bill came up, many seemed to dismiss it as just an angry reaction to the state Supreme Court with its Democratic majority acting in 2018 to throw out the gerrymandered congressional map approved by mostly Republicans back in 2011.
It doesn’t really matter what is motivating Republicans on this issue. What matters is that it’s about to become reality – unless voters rise up – with some serious consequences for our system of justice and a lot of unanswered questions.
For example, what happens to all those justices and judges currently on the bench? Under current law, judges may run for retention election after serving their initial ten-year term. Historically, appellate jurists are retained with an average of about 72 percent voter support.
The bill leaves it up to the General Assembly to determine how the transition to regional judicial districts would occur, the order in which districts would elect new justices and judges and even how the change would affect their ability to seek retention election.
Of the 29 jurists elected and currently serving on the appellate courts, 15 are Republicans, 14 are Democrats. Nearly two-thirds are women. All are in jeopardy of losing their right to seek retention if this proposal becomes law. Some could be effectively removed from office simply because of where they live.
Does anyone really think it’s a good idea to let legislators rather than voters choose which judges deserve to continue on the bench?
In order to appear on the ballot for voter approval, the bill must pass again in the 2021-22 session. If approved by the end of February, it will appear on the Primary Election ballot in May of 2021.
The Republican leadership of the General Assembly has ignored every effort by citizens and advocacy groups like Fair Districts PA, Committee of 70, Common Cause PA and others to reform the redistricting process and put an end to partisan gerrymandering of legislative and congressional seats. It now appears voters may be the only ones who can stop an expansion of gerrymandering to our courts as well.
Patrick Beaty is the legislative director of the advocacy group Fair Districts PA, an all-volunteer, non-partisan, grass roots organization dedicated to reform of Pennsylvania’s redistricting process for both congressional and state legislative districts. For more information, visit https://www.fairdistrictspa.com/.