by Kevin Daley
Pennsylvania Republicans are fighting a judge-imposed congressional district map at the U.S. Supreme Court, after the state’s highest judicial tribunal struck down the old map, finding it was purposely drawn to favor the GOP.
Their petition, something of a long shot, argues the Pennsylvania Supreme Court intentionally usurped the legislature’s constitutional power to draw district lines.
Speaker Michael Turzai and state Senate President Joseph Scarnati asked the justices to stay the state Supreme Court’s new map and review their decision overturning the old lines. The petition was presented to Justice Samuel Alito, who hears emergency appeals arising from Pennsylvania. The justice ordered the League of Women Voters, who successfully challenged the old map, to respond to the petition by Monday afternoon. A decision could follow before week’s end.
“The Pennsylvania Supreme Court conspicuously seized the redistricting process and prevented any meaningful ability for the legislature to enact a remedial map to ensure a court drawn map,” the petition reads.
The Pennsylvania court overturned the old map on Jan. 22, ordered the state legislature to produce a new map by Feb. 9, and reserved the right to review the revised lines. The court said it would issue its own map if the legislature could not create a satisfactory alternative by the deadline.
The GOP argues that the 18-day remedial period was far too short, particularly since the state court did not release its opinion identifying the old map’s substantive defects until Feb. 7 — just two days before the deadline. Without clear guidance as to the criteria for an acceptable map, Republicans say, any attempt at correction would be futile.
They further say the criteria the state court ultimately identified does not derive from state law or the Pennsylvania constitution. In creating these new standards, the petition says the judges effectively legislated from the bench.
The court also hired professor Nathaniel Persily of Stanford Law School, a redistricting expert, to advise on the redraw on Jan. 26.
Taken together, Republicans say, these facts suggest the state court intentionally set the legislature up for failure so it could draw its own map. The petition reads:
By promulgating mandatory criteria the General Assembly could not anticipate in 2011, and that are found nowhere in the Pennsylvania Constitution, withholding guidance as to how to achieve compliance with Pennsylvania law until two days before the court’s imposed deadline to enact a new plan, creating a proportional-representation criterion that is practically impossible to implement, and imposing a remedial plan that had been in the works all along, the Pennsylvania Supreme Court ensured that its desired plan to draft the new map would be successful.
The Constitution’s elections clause vests state legislatures with the authority to draw district lines, and the Supreme Court has previously said that a “legislatively enacted plan should be preferable to one drawn by the courts.” The Court has, however, expanded the meaning of the word “legislature” as it appears in the Constitution to include other bodies like independent redistricting commissions.
Justices of the Pennsylvania Supreme Court are elected. Democrats command a five to two majority on the panel.
Alito rebuffed an effort to stop the redraw in early February. The move was not surprising, as the lower court’s decision was based almost entirely on Pennsylvania law.
Professor Rick Hasen, a political scientist and election law expert at UC Irvine School of Law, says the high court is unlikely to grant the legislature’s request.
“Because this was a case decided under the state constitution by the state supreme court, the usual path for review of this case by the U.S. Supreme Court is limited,” he wrote at his Election Law Blog. He also noted the state legislature did not formally enact an alternative map during the 18-day grace period.
“This seems to give Pa. Republicans even less standing to complain about things,” he said.
Pennsylvania Gov. Tom Wolf, a Democrat, retained former Acting Solicitor General Neal Katyal Friday to represent his administration at the high court. As acting SG, Katyal represented the U.S. government before the Supreme Court during the Obama administration and is an experienced appellate practitioner.
There are 18 congressional seats in Pennsylvania, 13 of which are held by Republicans. Projections suggest each party will win nine seats under the new map.
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