KEYSTONE CROSSROADS – After hearing oral arguments Wednesday, the Pennsylvania Supreme Court is expected to rule quickly on a lawsuit challenging the state’s congressional district boundaries.
Eighteen registered Democrats — one for each of the state’s districts — claim the congressional map violates multiple parts of the state constitution, including its free expression clause, because it discriminates against them for their political viewpoint.
The case names Republican legislative leaders as defendants because the GOP controlled the General Assembly, and thus redistricting, the last two times it happened.
The plaintiffs, who are seeking a new map in time for the 2018 midterms, successfully sought an expedited review by the majority-Democrat Pa. Supreme Court.
Drew Crompton, chief counsel to Senate Republicans, says that would be a logistical nightmare considering the May primaries are fast approaching.
“I’m not conceding a loss by any stretch,” Crompton told reporters, noting recent wins in a federal gerrymandering case and at an earlier phase of the state case. “But remedy is going to be a mess unless you push it to 2020 or do something along those lines. It’s just not enough time.”
Ben Geffen, one of multiple lawyers from the Public Interest Law Center representing the plaintiffs, says there’s too much at stake to let logistics determine the outcome.
“Congress is deciding, literally, life or death issues like healthcare, children’s healthcare, taxes,” Geffen said. “To wait three years under a map that’s been declared unconstitutional is something we strenuously disagree with.”
If the court orders a new map and it’s finalized by Feb. 20, then primary elections can happen May 18 as scheduled, according to the Pennsylvania Department of State.
But defense attorneys for Republican legislators say the General Assembly would need three weeks to a month to complete the process if ordered to draw new map. To meet that timeline, the court would need to make its ruling within the next 12 days.
Running congressional races at a later date, separate from other primary contests, would cost $20 million, according to Department of State estimates.
Justices also questioned lawyers Wednesday about the possibility of delaying all of the state’s primaries, as late as August or September.
But Crompton says that would be just as “messy” as the other options.
“You’re going to affect the governor’s race, you’re going to affect state senate races, and state house races. And if the dog catcher’s up, you’re going to affect that, too,” Crompton said. “And I think that’s a huge problem. Because they’re not parties to this dispute.”
Republicans will seek a stay and pursue an appeal of the decision if they lose, Crompton said.
Geffen and other lawyers for the plaintiffs were confident after court.
Attorney David Gersch said the “highlight” was hearing the defense openly admit to the large role politics plays in redistricting.
Jason Torchinsky, lawyer for House Speaker Mike Turzai, had pointed out that courts have ruled political considerations are permissible – so long as districts are contiguous and have equal populations, as required by federal law.
If there’s a point where partisan influence over map-making crosses the line, the law doesn’t say where that is, Torchinsky said.
“I don’t see the principled stopping point between your argument and the stance that there’s no such thing as an unconstitutional partisan gerrymander,” said Justice David Wecht, who was elected to the court as a Democrat in 2015.
The law does not, in fact, offer clear standards on the matter, and the plaintiffs haven’t suggested any. In his decision recommending that the Pa. Supreme Court uphold the state’s congressional map as constitutional, Commonwealth Court Judge Kevin Brobson stressed both points in findings issued Dec. 29.
The state Supreme Court could create standards. But in doing so, it would “go further than any court has gone before,” Justice Debra McCloskey Todd, another Democrat, noted Wednesday.
Wednesday’s proceedings lasted three hours before the court, comprised of five Democrats, plus Republican Justice Sallie Mundy. Mundy, the newest addition to the bench, spoke least of the panel, asking just a couple of questions.
Commonwealth Court hearings took five full days in December, agrued before Brobson, a Republican.
Lower court findings
Brobson also found that while the plaintiffs demonstrated legislators’ intent to discriminate when crafting the map, they failed to show any actual harm or impact — in this case, limited political participation.
Much of the lower court proceedings were taken up by expert testimony from political scientists.
Plaintiffs attempted to show how state lawmakers had used precinct-level election results and voter turnout data to create a map with a partisan tilt that’s extremenationally – not just now, but going back decades.
They pointed to analysis that shows that Pennsylvania’s map “wastes” the votes of the minority party, a formulation known as the “efficiency gap.”
They also noted the political disparity of Pennsylvania’s congressional delegation: Although 13 of 18 seats have been won by Republicans for the last three election cycles, the party claimed between just 49 and 55 percent of votes statewide each time. GOP leaders attribute this outcome to the strength of their candidates.
The plaintiffs also relied on one expert who generated hundreds of maps which they say would better enfranchise voters. These versions met legal requirements, would have resulted in a more evenly split Congressional delegation, and better honored “traditional” map-making principles such as respecting county and municipal boundaries and preserving “communities of interest.”
“There’s no defensible reason for the map looking as it does,” said Cliff Levine, lawyer for Lt. Gov. Mike Stack, a Democrat.
The lawsuit lists Stack as an executive defendant along with three other high-ranking Democrats, but they’ve supported the plaintiffs throughout the case. The others are Gov. Tom Wolf, Acting Secretary of State Robert Torres and Jonathan Marks, Commissioner for the Bureau of Commissions, Elections and Legislation.