February 27, 2018

Pennsylvania Republicans Desperate to Protect Gerrymandering


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Rarely have redistricting battles been as dramatic – or as headspinning – than the fights playing out over Pennsylvania’s congressional map.


By Michael Li, J.D. / 02.22.2018
Senior Counsel, Democracy Program
Brennan Center for Justice


 

We’ve already seen: Pennsylvania Republicans argue in federal court that the case belonged in state court, while simultaneously arguing in state court that the case belonged in federal court. State election officials file a brief paid for by a dark-money political group. And an unsuccessful emergency attempt by Republicans to get the U.S. Supreme Court to block redrawing of the 2011 congressional map was shut down by Justice Samuel Alito.

But now, with the Pennsylvania Supreme Court having adopted a replacement map, the fights are taking on an even more disturbing turn. A growing number of Pennsylvania Republicans are threatening to impeach the state supreme court justices who struck down the state’s congressional map, and, this week, legislative leaders have rushed back into multiple federal court to challenge the right of the state court to redraw an unconstitutional map. President Trump has even weighed in, encouraging Republicans to resist the new map.

If you have questions about where things stand in the Keystone State, you’re not alone:

What are Pennsylvania Republicans arguing in their latest stay request?

The latest effort by Pennsylvania Republicans to get the U.S. Supreme Court to block the map is twofold — and familiar.

First, Pennsylvania Republicans argue that only legislatures can set redistricting rules. They say that’s because the U.S. Constitution’s Elections Clause (Art. I, sec. 4) delegates the power to set the “Time, Place, and Manner” of federal elections to “legislatures” and not courts.  By adopting rules on minimizing county and political and subdivision splits, Pennsylvania Republicans say the Pennsylvania Supreme Court overstepped its constitutional role.

This is basically the argument Pennsylvania Republicans made the first time they tried unsuccessfully to get a stay from the U.S. Supreme Court.

Pennsylvania Republicans also are advancing a second argument based on timing. They argue that the legislature and governor should have had a meaningful chance to adopt a new plan and that the three-week window put in place by the court for the legislature to pass a plan was simply too short — particularly given the court’s limitations on county splits and the like. Republicans also complain about the process after the governor and legislative leaders deadlocked — they say they did not have a chance to review and comment on the court’s map before it went into effect.

Have courts drawn maps in other states?

Yes, many times. Court-drawn maps are nothing new. Where a legislature and governor are unable to agree on a redistricting plan, the obligation to draw a map falls to courts by default. After all, you can’t use an invalid map to hold elections and, without a map, you can’t have an election.

In fact, this decade alone, state courts have drawn congressional maps in Colorado, Kansas, Minnesota, New Mexico, and Nevada. Federal courts have drawn or redrawn still other congressional maps this decade, including those of Virginia, New York, and Texas.

Accepting the argument of Pennsylvania Republicans would upend decades of accepted redistricting practice by making it impossible to implement a new map if the political branches can’t agree on one — or refuse to negotiate in good faith. That would wreak havoc on elections.

How does the time given for the legislature and governor to come up with a new map compare to other states?

When maps are struck down for constitutional or other legal infirmities, it’s not unusual for the process for adopting a new map to be a bit of a rush. Elections have to be held, after all, and there are a lot of steps that have to take place in the lead up to Election Day – from signature gathering to primaries to the mailing of ballots to overseas voters, and more. To allow all that to move forward, you need a map.

And while federal and state courts allow the political branches to have the first shot at crafting a replacement map, that window often is relatively short given the realities of the election schedule. In North Carolina, for example, a three-judge panel struck down the state’s congressional map on February 5, 2016 and gave the legislature two weeks to adopt a new plan (which it met). Likewise, in Texas, when a federal district needed to adopt temporary maps for the 2012 election, it gave the parties 15 days to submit proposed maps and held a hearing two weeks later. In short, quick turnarounds are nothing new in the world of remedial maps and lots of states have had no problem meeting them.

To be sure, there are advantages to a longer process — but as the Pennsylvania Supreme Court noted, none of the parties asked for a modification of the schedule. And, in fact, tight schedule adopted by the court was in part driven by the insistence of Pennsylvania Republicans that the May 15 primary had to go forward as scheduled.

What happens next?

Under Supreme Court rules, the stay request will go to Justice Alito, who has oversight authority for the Third Circuit.

Justice Alito will have the option to request responses from the plaintiffs and other parties — though he does not have to do so. He then either can refer the request to the entire Court or decide it on his own, as he did with Pennsylvania Republicans’ first stay request.

Although the Court typically acts quickly on stay requests, exactly how fast varies. It could be a few days or it could take a couple of weeks for everything to play out.

Anything else?

Yes. Pennsylvania Republicans aren’t just taking their fight to the U.S. Supreme Court, they also have said they will be filing a separate lawsuit in federal district court asking for the new map to be blocked.

However, as of the time of writing, that lawsuit hasn’t yet been filed, and it is not clear to most observers what arguments they might make. But if there was ever any question about the importance of gerrymandering to politicians, the determination of Pennsylvania Republicans to fight tooth and nail to preserve their old map should put those bed.


Originally published by the Brennan Center for Justice under a Creative Commons Attribution-No Derivs-NonCommercial license.

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