In League of Women Voters v. Commonwealth of Pennsylvania, the Supreme Court of Pennsylvania determined that Pennsylvania’s congressional districting plan, which had been in place since 2011, violates the Constitution of the Commonwealth of Pennsylvania. Based on this determination, a 5-2 partisan line vote (the majority comprising the Democrat members of the court), struck down the Plan and effectively reversed the lower court, which—serving as a special master—had held that the plan was constitutional and that Plaintiffs failed to articulate a judicially manageable standard.
In December 2011, following the results of the 2010 Census, the Pennsylvania General Assembly passed a redistricting plan which apportioned the state into 18 congressional districts. This plan was passed with bipartisan support and remained unchallenged for over five years and three congressional elections. In June 2017, a group of Pennsylvania residents brought suit in state court challenging the 2011 Plan, alleging that it violated their rights under the free expression, association, and equal protection provisions of the Pennsylvania Constitution. The Plaintiffs claimed that the General Assembly acted unconstitutionally in drawing the 2011 Plan because it did so at least in part to enhance the Republican Party’s representation in Congress. The Plaintiffs argued that any partisan motive in congressional redistricting is unlawful under the Pennsylvania Constitution.
The Pennsylvania Commonwealth Court (the intermediate court in Pennsylvania, which has jurisdiction over election matters and acting as special master) concluded that the Plaintiffs had failed to show a violation of any provision of the Pennsylvania Constitution. Specifically, that court found that the Pennsylvania Supreme Court had previously and consistently construed the applicable state constitutional provisions as “coterminous” with their federal constitutional analogs, and therefore are analyzed under the same standards. These applicable standards are set forth in Erfer v. Commonwealth, 794 A.2d 325 (Pa. 2002) and Davis v. Bandemer, 478 U.S. 109 (1986), which require plaintiffs to establish intentional discrimination against an identifiable political group resulting in an actual discriminatory effect. The Commonwealth Court found that the Plaintiffs failed to present a “judicially manageable standard” by which to adjudicate a free-speech partisan gerrymandering claim under the Pennsylvania Constitution, and that the Plaintiffs had failed to satisfy the equal-protection standard in Erfer/Bandemer, because they had failed to show that an “identifiable” political group had suffered a cognizable burden on its representational rights.
The Supreme Court of Pennsylvania expedited its review of the Commonwealth Court’s recommendation and, on January 22, 2018, issued its order striking the 2011 Plan as unconstitutional. That court held, while providing no opinion, that the 2011 Plan “plainly and palpably violates the Constitution of the Commonwealth of Pennsylvania.” Remarkably the court did not identify which constitutional provisions the Plan violated, provide any reasoned basis for its ruling, or indicate how the General Assembly could satisfy the Pennsylvania Constitution when re-drawing congressional maps. The court further enjoined the use of the 2011 Plan in any further congressional elections, beginning with the primary on May 15, 2018. In so doing, the court gave the General Assembly until February 9, 2018, to pass an alternative plan for submission to the Governor of Pennsylvania for signature. The court reserved for itself the right to review and overturn any new reapportionment that is signed into law. The court also ordered the Pennsylvania executive branch to reschedule the 2018 elections if necessary but made clear that the court will adopt a plan of its own if the General Assembly does not enact a plan by February 9, 2018.
Two Justices dissented as two the substance of the order, and a third concurred in part but dissented on the timing of the implementation of the order. One dissenting opinion expressed concern that “the order striking down the 2011 Congressional map on the eve of our midterm elections, as well as the remedy proposed by the Court” raise “the implication that this Court may undertake the task of drawing a congressional map on its own,” which “raises a serious federal constitutional concern.” The other dissent similarly recognized that “[t]he crafting of congressional district boundaries is quintessentially a political endeavor assigned to state legislatures by the United States Constitution.”
The Defendants, Michael C. Turzai, the Speaker of the Pennsylvania House of Representatives, and Joseph B. Scarnati III, the Pennsylvania Senate President Pro Tempore, sought stays from both the Pennsylvania Supreme Court and the U.S. Supreme Court. Both of these applications were denied, with two Justices of the Pennsylvania Supreme Court dissenting and one Justice of the Pennsylvania Supreme Court concurring in part and dissenting in part on due process grounds.
The result of the Pennsylvania Supreme Court’s Order in League of Women Voters has the potential to have wide-sweeping ramifications. It risks throwing Pennsylvania’s congressional campaigns into upheaval mere weeks before the nomination process was to set to commence. Moreover, the precedent set by a state court’s striking and re-drawing of a properly enacted and apportioned congressional map, without expressly applicable state constitutional provisions, creates deep federalism and judicial activism concerns.
The risk of this action by the Pennsylvania Supreme Court is that across the country this may be the start of a trend towards Redistricting cases alleging gerrymandering being brought in state courts to attempt to insulate them from U.S. Supreme Court review. This only raises the stakes for the judicial selection process as this case could portend an increased role for the state-level judiciary in congressional redistricting disputes.
Jason Torchinsky is a partner at Holtzman Vogel Josefiak Torchinsky PLLC. Jason served as counsel in these cases, but the view expressed here are his own and do not necessarily reflect the view of his clients. At the time of this writing, there was no majority opinion issued and no Congressional map in place for the 2018 elections.