Commentary

Judicial remap amendment is on hold – for now. The risk remains | Mark O’Keefe

February 26, 2021 6:30 am

The Pennsylvania Judicial Center in Harrisburg (Capital-Star file)

Once again, the Pennsylvania Legislature is proving that it’s an institution full of uncertainty and unpredictability.

On Jan. 13, Pennsylvania’s House Judiciary Committee passed a bill to have voters decide whether or not to amend the state’s constitution to allow for the election of state appellate court judges by regional districts instead of statewide.

The controversial bill passed 13-12 with all 10 Democrats on the panel voting against it and two Republicans.
It appeared the bill was headed for passage since Republicans, who control both the House and Senate, strongly favored the measure.

They contended that the legislation would give different Pennsylvania regions more representation on the statewide courts. They pointed out that four of the seven state Supreme Court justices are from Allegheny or Philadelphia counties.

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Taken together, only 15 of Pennsylvania’s 67 counties are home to an appellate court judge, they added.
Democrats and other good-government groups harshly criticized the measure, claiming it was passed in retaliation for the state’s Supreme Court siding with Gov. Tom Wolf in various legal battles with the state Legislature last year.

Democrats contend Republicans would gerrymander the district courts’ maps to take control of the Supreme Court, which is composed of five Democrats and two Republicans.

However, the bill hasn’t come up for a vote on the House floor, meaning there’s no way it can be on the May 18 primary election ballot. The Legislature must pass constitutional amendments at least 90 days before an election.

During a Jan. 27 press conference in the Capitol, House Majority Leader Kerry Benninghoff, R-Centre, said there were already too many constitutional amendments on the May 18 primary ballot.

“Sometimes you can put too many constitutional amendments on the ballot that people get confused,” he said, “and I think that this allows our Pennsylvania voters to be a little bit more focused.”

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Jason Gottesman, Benninghoff’s spokesman, told the Beaver County Times that the bill is “still being discussed and vetted by our caucus, but that there is no established timeline for when it may come up this session.”

However, it’s possible that both chambers could still pass the bill in the fall, with Sept. 2 being the deadline for the measure to appear on the ballot for the Nov. 2 general election.

The bill’s sponsor Rep. Russ Diamond, R-Lebanon County, told the Beaver County Times he was “confident that this bill will move.” His measure would divide statewide court elections into nine Commonwealth Court districts, 15 Superior Court districts, and seven Supreme Court districts.

The Beaver County Times reported that Carol Kuniholm, who leads Fair Districts PA, a group strongly opposed to the bill, told supporters in an email earlier this month that she feels the measure is doomed to fail.

“While it’s possible legislative leaders will attempt to pass (H.B. 38) in time for the general election in November, we are hopeful that the outcry of opposition from constituents, advocacy organizations and law associations turned the tide, convincing legislators and their leaders to set this very bad bill aside.”

On the surface, regional voting for statewide judges, especially the Supreme Court, would seem to favor Democrats.

According to the 2010 Census, Philadelphia County and its collar counties of Bucks, Chester, Delaware, and Montgomery, have 4,008,993 people, about a third of the state’s 12,7023,3798 residents. The number of residents in the region is expected to rise when the 2020 Census report is released later this year.

That means that the southeast region, which Democrats dominate, should have three seats on the Supreme Court.

Then there’s Allegheny County, which includes Pittsburgh, also dominated by Democrats. The county has 1,223,348 residents, far more than neighboring Westmoreland, Westmoreland, Fayette, and Green counties. That should give Democrats another seat on the Supreme Court, handing the party a 4-3 advantage.

However, Republicans could gerrymander the districts so the GOP would control the Supreme Court. That’s what happened in 2010 when the Republican-controlled Legislature and Republican Gov. Tom Corbett gerrymandered the state’s congressional districts so that the GOP gained a 13-5 advantage.

Democrats appealed that map to the state Supreme Court, which redrew the districts. After last fall’s elections, each party had nine congressional seats.

That seems to be fair considering that as of last November, the number of Democrats registered to vote outnumbered Republicans 4,228,888 to 3,543,070. There were 1,319,004 Independents.

So, will this bill eventually become law, or will it continue to stall in the Legislature?

Well, there’s a possibility Republicans might not have to pass the bill to get the results they want.

Deborah Gross, the CEO and president of Pennsylvanians for Modern Courts, which is fiercely opposed to the bill, told the Beaver County Times that Republicans had informed her that the GOP would keep the legislation in limbo.

Gross said she was told the measure would be used as leverage against the state Supreme Court to hold them accountable and make sure they don’t issue any drastic decisions.

Rep. Tim Briggs, of Montgomery County, who’s the ranking Democrat on the House Judiciary Committee, told the Beaver County Times that he has also heard similar comments.

“I hate to think that,” said Briggs, “but that may not be too far from the truth.”

Opinion contributor Mark O’Keefe, of Mechanicsburg, Pa., is the former editorial page editor of the Uniontown Herald-Standard. His work appears biweekly on the Capital-Star’s Commentary Page. 

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