Pennsylvania’s Redistricting Coup

Democratic judges decide they can redraw election lines.


The United States flag waves in the wind at the Pennsylvania Capitol building in Harrisburg, Pa. in 2015.
The United States flag waves in the wind at the Pennsylvania Capitol building in Harrisburg, Pa. in 2015. PHOTO: MATT ROURKE/ASSOCIATED PRESS

Political chaos has broken out in Pennsylvania after the state’s high court last week redrew the congressional map for this year’s midterm elections. Behold our future judicial overlords if the U.S. Supreme Court rules that partisan gerrymanders are unconstitutional.

Last month a 5-2 liberal majority of the Pennsylvania Supreme Court struck down, with unvarnished political hubris, the congressional map adopted by the GOP legislature way back in 2011. The districts “clearly, plainly and palpably violate our state Constitution” that guarantees that “elections shall be free and equal,” the judges opined.

According to the majority, the gerrymander diluted the voting rights of some Democrats by cramming them into a handful of districts. As evidence, the judges noted that in 2012 Democrats won five of 18 congressional districts with an average 76.4% of the vote in each while receiving 50.8% of the statewide vote. The judges also emphasized that Republicans haven’t lost a district since 2011, yet the special election next month in southwestern Pennsylvania for Rep. Tim Murphy’s seat is competitive. So was the race in November to replace Republican Patrick Meehan in Philadelphia’s suburbs. 

While the U.S. Supreme Court has held that partisan gerrymanders may violate the U.S. Constitution, it has been unable to articulate a precise legal standard. Democrats are now trying to tempt the Supreme Court into intervening in the intrinsically political redistricting process with social-science methodology that purportedly measures proper representation.

The arguments that the Supreme Court heard last fall in Gill v. Whitford involving Wisconsin’s legislative maps are similar to those made by the Democratic plaintiffs in Pennsylvania. But as the Pennsylvania redistricting battle shows, striking down partisan gerrymanders will politicize the courts.

Pennsylvania’s constitution gives the legislature plenary authority to draft congressional maps. Nonetheless, the Democratic majority on the high court—judges in Pennsylvania are elected—gave the legislature all of three weeks to redraw districts that would meet Democratic Governor Tom Wolf’s approval.

The judges specified that the districts must have equal populations, be “compact and contiguous geographical territory” and respect “the boundaries of existing political subdivisions contained therein.” These requirements are nowhere in the state constitution.

Notably, the judges did not articulate a precise standard for reviewing partisan gerrymanders. It’s possible for the legislature to draw a map complying with the court’s “neutral criteria,” the majority wrote, but that still could “unfairly dilute the power of a particular group’s vote for a congressional representative.” In other words, the judges can do what they want.

And with the help of Stanford University law professor Nathan Persily they drafted their own new map Monday for use in the May primaries after the Governor and legislature failed to agree. The revised map makes at least three GOP districts more competitive and disrupts several races.

Republicans plan to ask federal courts to enjoin the map, as they should. The U.S. High Court last month declined a request to intervene, perhaps giving deference to state judges’ interpretation of state law. But the judge-drawn map violates the U.S. Constitution’s Elections Clause, which provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

State judges can’t usurp the legislature’s authority over redistricting willy-nilly. The Supreme Court ought to block this judicial coup d’etat, but be warned. Pennsylvania will be the future in every state if the Justices decide that judges should be redistricting kings.

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