Gov. Tom Wolf’s proposed congressional redistricting plan.
By Patrick Beaty
Four years ago this month, the Pennsylvania Supreme Court issued an order redrawing the state’s congressional district map to replace one the court had just struck down as an unconstitutional partisan gerrymander. Republican leaders in the General Assembly cried foul because, they argued, the U.S. Constitution bestows the power on the legislature of each state to redraw congressional districts after each decennial census.
They failed to mention that state legislatures are also allowed to assign that duty to independent redistricting commissions, but that’s another story.
More often than not in the last half-century, the Pennsylvania General Assembly has proven themselves incapable of doing the job they insist is theirs alone to perform. An exception was the map enacted ten years ago (the same map struck down by the Court) when Republicans were in control of the Governor’s Office and both legislative chambers.
But when political power is divided between the major parties, the system is almost guaranteed to fail and the courts are “saddled with the unwelcome burden” of drawing a new congressional map (quoting Justice Kevin Dougherty in a recent concurring opinion).
So now the focus is once again on the state Supreme Court, only this time there’s an interesting twist in the plot. Unlike the last time when the justices considered only one map drawn by an appointed “special master,” they now have as many as 13 maps from which to choose.
That’s because the high court allowed a host of elected officials and voter groups to submit maps for initial review by a lower court judge. (Full disclosure: the author is included in one of the voter groups permitted to submit an amicus map, but not to participate as a party in the case).
The judge recently recommended one map which happened to be identical to the map vetoed only days before by Gov. Tom Wolf. But the Supreme Court is free to pick any of the 13 maps, or none of them.
The Court has scheduled a hearing for Friday, Feb. 18, to hear legal arguments objecting to the lower court judge’s report. Presumably, all the lawyers will also be trying to convince the justices why their client’s map should be accepted rather than the one recommended by the judge.
Will the justices pick from the 13 maps that have already been exposed to public review and expert analysis, or will they again produce a map that no one has seen with no opportunity for public comment? As it stands now, only the justices know the answer to that question.
There is clearly an opportunity here for the Supreme Court to provide greater clarity in its review process and in the rationale behind its ultimate decision.
Dougherty has already raised the possibility that the court would identify specific criteria it considers important in congressional redistricting over and above the minimum standards laid out in prior cases.
That would be a welcome step forward that presumably would guide the Court’s deliberations on the maps already presented for its consideration. It’s probably also safe to assume that most of the 13 maps would qualify under the Court’s expanded criteria to one degree or another.
Given that scenario, how can seven justices decide which map to choose? Why not try a version of ranked choice voting conducted in open court?
The justices would each rank the qualifying maps using the agreed upon criteria. The map receiving the fewest votes would be eliminated, but its votes would be re-allocated until a winning map receives more than 50% of the total votes. It’s the same system that New York City just used to elect Mayor Eric Adams, and by which the Oscars are awarded.
Another variation of this idea could be an elimination vote process in which maps receiving the fewest votes are eliminated and voting repeats until only one map remains.
The point being there are various approaches that could lead to a final map from among a number of good ones. Just like there is no perfect map, there is no perfect way to select one. Mainly, voters want to believe that the process was fair, because the legislative process has failed so completely on that metric.
Whatever way the justices decide to handle their “unwelcome burden,” let’s hope they take this opportunity to strike a blow for transparency and reform.
Patrick Beaty is legislative director of 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. His work appears occasionally on the Capital-Star’s Commentary Page.
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