Gerrymandered Election Districts Nixed by Pennsylvania High Court

HARRISBURG, Pa. (CN) — Pennsylvania has less than a month to redraw its congressional map, the divided state Supreme Court ruled Monday, finding that Republicans unconstitutionally gerrymandered district lines in 2011.

“We are thrilled, and see this as a victory for democracy,” Suzanne Almeida,  executive director of the League of Women Voters of Pennsylvania, said in a phone interview this afternoon. “The 2018 elections are incredibly important and this is a win for all Pennsylvanians.”

Promising an opinion to follow, the court’s 2-page order offers little detail on the 2011 map, but it notes that the replacement must be finalized by Feb. 9 and submitted by Democratic Gov. Tom Wolf on Feb. 15.

“I strongly believe that gerrymandering is wrong and consistently have stated that the current maps are unfair to Pennsylvanians,” Wolf said in a statement Monday. “My administration is reviewing the order and we are assessing the executive branch’s next steps in this process.”

Using the unconstitutional map in the last election, Republicans were able to win 13 of 18 seats in a state where Democrats outnumber Republicans 5:4.

Adopted after the 2010 census, the gerrymandered map chopped up large counties like Montgomery across as many as five districts to shore up area Republicans.

One district was so misshapen that it was renamed “Goofy kicking Donald Duck” by the winner of a write-in contest organized by the Washington Post.

Justice Max Baer agreed in a concurring opinion Monday that the district lines must be redrawn but he questioned the wisdom of using new maps for the May 15 primary.

“I understand the court’s desire to follow this schedule as it is arguably counterintuitive to believe that the current map is unconstitutional and, nevertheless, direct its usage in the May 2018 election,” he wrote. “There are, however, other forces at play. When faced with an unconstitutional map, courts should determine ‘whether the imminence of [the primary and] general elections requires the utilization of [a prior plan] notwithstanding [its] invalidity’ or whether a constitutional map ‘can practicably be effectuated’ in time for the pending election.

Quoting the 1964 case Butcher v. Bloom, Baer warned that implementation of a new map for the May 2018 primary election risks “serious disruption of orderly state election processes and basic governmental functions.”

“It is naive to think that disruption will not occur,” he added. “Prospective candidates, incumbents and challengers alike, have been running for months, organizing, fundraising, seeking their party’s endorsements, determining who should be on canvassing and telephone lists, as well as undertaking the innumerable other tasks implicit in any campaign – all with a precise understanding of the districts within which they are to run, which have been in place since 2011. The change of the districts’ boundary lines at this time could result in candidates, again incumbents and challengers alike, no longer living in the districts where they have been carrying out these activities for a year or more. This says nothing of the average voter, who thought he knew his congressperson and district, and now finds that all has changed within days of the circulation of nomination petitions.”

The gerrymandered map will be used once more: in a March 13 special election for a vacant seat in southwestern Pennsylvania.

This drew special mention from Justice Baer, who noted that it means “voters in this district would be electing a representative in March in one district while nomination petitions would be circulating for a newly drawn district, which may or may not include the current candidates for the special election.”

“Again and respectfully, I find the likelihood for confusion, if not chaos, militates strongly against my colleagues’ admittedly admirable effort to correct the current map prior to the May 15, 2018 primary election,” Baer wrote.

Baer noted that the timeline set by the court to resolve this issue will surely “face immense and perhaps insurmountable pressure through likely subsequent litigation.”

Rather than moving the primary, Baer said it would be “more prudent to apply our holding in this case to the 2020 election cycle.”

Baer is a Democrat elected to the seven-justice court in 2003. The court’s two Republican members, Chief Justice Thomas Saylor and Justice Sallie Updyke Mundy, both signed brief dissents to Monday’s order.

They said resolution of Pennsylvania’s district maps should have been delayed until after the U.S. Supreme Court rules in Gill v. Whitford, an unrelated case about Wisconsin partisan gerrymandering.

While Saylor allowed that there are “substantial concerns as to the constitutional viability of Pennsylvania’s current congressional districts,” Mundy said there are other problems with the majority’s order.

“Despite its pronouncement that the 2011 map clearly, plainly, and palpably violates the Pennsylvania Constitution, the court fails to identify the specific provision it so violates,” she wrote.

Mundy said lawmakers and the governor need guidance “on how to create a constitutional, non-gerrymandered map.”

“I am also troubled by the order striking down the 2011 congressional map on the eve of our midterm elections, as well as the remedy proposed by the court,” she added.

If lawmakers miss their Feb. 9 deadline to redraw district lines, the Democratic-controlled court said it would impose its own plan to keep the upcoming midterm elections on track.

Mundy said this implication “on its own raises a serious federal constitutional concern.”

With all of Pennsylvania’s 203 House seats up for election, the state will hold its primary on May 15, and the general election is on Nov. 6. In the Senate, incumbent Democrat Bob Casey Jr. will fight for a third term.

The League of Women Voters of Pennsylvania was represented in the case by the Public Interest Law Center in Philadelphia. The attorneys said they are hopeful the Legislature will reach an agreement without further court involvement.

“Any congressional districting plans shall consist of districts that are compact and contiguous,” legal director Mimi McKenzie said in a press call Monday. “They won’t divide counties and municipalities if they can.”

Ruth Greenwood at Campaign Legal Center called Monday’s ruling a resounding victory.

“In yet another court, we’ve seen that gerrymandering can be effectively measured and ultimately struck down as unconstitutional,” she said.

Another group that got involved in the case, the Brennan Center for Justice at NYU School of Law, noted that Pennsylvania’s 2011 redistricting effort earned special mention in a recent report as “easily one of the most egregious partisan gerrymanders of the decade.”

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