PA judge recommends a GOP-drawn congressional map plan

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PHILADELPHIA, PA (WHYY) – A Commonwealth Court judge charged with recommending a new Pennsylvania congressional map has selected a plan that Republican state lawmakers drew, and that Democratic Gov. Tom Wolf already vetoed.

The map she selected would benefit Republican candidates more than Pennsylvania’s current, court-drawn map does. There is no guarantee, though, that it will actually be enacted. The Pennsylvania Supreme Court, which has a 5-2 Democratic majority, will ultimately have the final say on which map gets chosen.

The courts took over the congressional mapping process after the GOP-controlled legislature and Wolf, who were supposed to jointly agree on a plan, deadlocked.

Last week, the commonwealth’s highest court appointed conservative Commonwealth Court Justice Patricia McCullough as a “special master” tasked with recommending one of 13 proposed maps to the justices. Those maps had been submitted by the parties to the case, including elected Republicans and Democrats, voters, and several good government groups.

Participants in the mapping case now have a week to file responses to McCullough’s selection before oral arguments over the map on Feb. 18.

This all leaves Pennsylvanians with little idea of what the eventual congressional map will look like, keeping potential candidates for congress — and the voters who might elect and be represented by them — in a state of prolonged uncertainty as the scheduled May 17 primary approaches.

McCullough recommended not delaying the primary, though she suggested that the Supreme Court justices should postpone the period for candidates to collect petitions in order to qualify for the ballot, from Feb. 15 to March 8, to March 1 to March 15.

Pa. House/A proposed Pennsylvania congressional map approved by House Republicans and advanced by a state Senate panel.

What does the GOP map do?

The House Republican-drawn map that McCullough selected is based on a submission from well-known citizen mapper Amanda Holt, and was tweaked to appease the political concerns of several Republicans on a key House committee.

It contains five districts that would likely be safe for Democrats, seven that would be safe for Republicans, and five swings: three that favor Democrats, one that favors Republicans, and one that is virtually even. The commonwealth lost a congressional seat in 2020 redistricting, so this count includes one fewer seat than Pennsylvania’s current congressional map.

In contrast, the current map — drawn by another Supreme Court “special master” in 2018 after the court deemed a previous map unconstitutionally gerrymandered — features seven safe GOP districts and an additional GOP swing, and six safe Democratic districts and an additional four swing districts that favor Democrats. It led to 9-9 splits between Republicans and Democrats in 2018 and 2020, the two years it was used.

These partisan outcomes aren’t guaranteed. They’re based on an analysis, performed via nonpartisan mapping tool Dave’s Redistricting App, which uses past precinct-by-precinct election results to predict likely outcomes in proposed districts. Actual voter behavior is influenced by an enormous number of factors, like political trends and the candidates up for election, and can vary regardless of the way a district is constructed.

DRA also scores maps based on several criteria that can point to whether a plan is gerrymandered. The districts in the House GOP proposal are contiguous and generally compact, and it does relatively well at avoiding splitting municipalities unnecessarily. It also creates districts that are relatively contiguous, but it scores badly on proportionality, i.e. whether the representatives likely to be elected under a given map would reflect the state’s proportion of Republicans to Democrats.

The map is “anti-majoritarian” by DRA’s measure, because “even though they will probably receive roughly 52.46% of the total votes, Democrats will likely only win 47.85% of the seats.”

The Princeton Gerrymandering Project, which gave a previous, similar version of the House GOP map a “B” overall, noted that it did a good job creating competitive districts and that it overall gave partisan advantage to Republicans.

Many Republicans contend electing appellate judges by districts rather than in statewide partisan contests — as is currently the process — will ensure that the state Supreme Court, Superior Court, and Commonwealth Court reflect the state’s diverse geography.

Kent M. Wilhelm / Spotlight PA. Many Republicans contend electing appellate judges by districts rather than in statewide partisan contests — as is currently the process — will ensure that the state Supreme Court, Superior Court, and Commonwealth Court reflect the state’s diverse geography.

McCullough’s argument

McCullough, who is perhaps best known for being one of the only lower court judges in Pennsylvania to rule in favor of former President Donald Trump’s campaign when it sued to have election certification delayed, relied on two key arguments to make her selection.

One is that the political geography of Pennsylvania is “partisan by its very nature.”

This is a well-established fact of Pennsylvania redistricting. The commonwealth’s Democratic voters are packed densely into Philadelphia and Pittsburgh, creating large majorities in those regions, while Republicans hold narrower majorities across a far wider geographic area.

Because big margins don’t usually make a difference in elections — winning candidates just need one more vote than their opponents — that kind of spread is what’s known in redistricting as the efficiency gap. In other words, even though Democrats have more registered voters than Republicans in Pennsylvania, it’s easy to draw maps that give their votes less weight — unless you’re explicitly trying to represent voters proportionally.

Democrats, like Wolf, generally include proportionality in their criteria for drawing fair maps. Republicans often argue that this approach amounts to unfair gerrymandering.

On this question, McCullough sided decisively with the Republicans.

“The Court finds that when lines are purposely drawn to negate a natural and undisputed Republican tilt that results from the objective, traditional, and historical practice whereby Democratic voters are clustered in dense and urban areas, such activity is tantamount to intentionally configuring lines to benefit one political party over another,” she wrote.

She added, she felt legally obligated to view efforts at proportional representation with “suspicious eyes,” and therefore gave any map that created a Democratic advantage, or otherwise sought to reduce the efficiency gap, less weight in her analysis.

These included maps drawn by House and Senate Democrats, Wolf, two groups of voters who brought the redistricting case to the courts, and the group Draw the Lines PA, which is a project of the good government group Committee of Seventy and submitted a map drawn from drafts by more than 7,000 Pennsylvanians.

In support of this argument, McCullough cited the U.S. Supreme Court case Vieth v. Jubelirer, which concerned another Pennsylvania mapping conflict.

The U.S. constitution, she quoted from the case, “provides no right to proportional representation … It nowhere says that farmer or urban dwellers, Christian fundamentalists or Jews, Republicans or Democrats, must be accorded political strength proportionate to their numbers.”

McCullough wrote that she was also advantaging the House GOP map because she believes it “constitutes a profound depiction of what the voters in the Commonwealth of Pennsylvania desire,” since it was passed through part of the legislative process.

The map did, indeed, pass through both the House and Senate before Wolf vetoed it. However, not a single Democrat in either chamber voted for the map, and two Republicans in the House also voted against it.

Members of the Draw the Lines initiative gathered outside the Capitol in late October to call on legislators to produce a fair congressional district map via a transparent process.

Amanda Berg / Spotlight PA. Members of the Draw the Lines initiative gathered outside the Capitol in late October to call on legislators to produce a fair congressional district map via a transparent process.

Counter-arguments

David Thornburgh, who chairs the group Draw the Lines PA, released a statement expressing his displeasure with McCullough’s decision.

The nonprofit had already evaluated the House GOP map and “found it insufficient,” he said.

It was drawn, Thornburgh noted, with the primary goal of limiting the splitting of municipalities between congressional districts, and he said he believes that by prioritizing that single value, it ignored several others that voters generally find very important, including respect for communities of interest, and not giving one party an unfair advantage.

“Further, while the map was initially chosen from a single citizen map, it was then adjusted without explanation or opportunity for public comment,” Thornburgh said. “It was passed without bipartisan support, and then vetoed by the governor.”

He asked that the Supreme Court consider the map Draw the Lines submitted when it makes its ultimate decision.

When he first vetoed the GOP-drawn map, Wolf argued that it included community splits that “do not appear to be motivated by compelling legal principles, but rather by a desire to make districts more favorable to Republican candidates,” and pointed to specific splits in Luzerne, Dauphin, Philadelphia, and Chester Counties.

He also stuck to the argument that maps should proportionally represent both major political parties, arguing that it gives “a structural advantage to Republican candidates that far exceeds the party’s voter support.”