Pennsylvania Gerrymandering Cases Percolating in the Courts

Note: Since submitting this article, Senator Leach has stepped back from his congressional campaign in the light of recent accusations about his personal conduct.

Back in 2004, when I held my first public forum on gerrymandering and 23 people showed up, I could never have predicted that the drawing of legislative district lines would become such a trendy topic. My last forum on this topic drew over 350 people. It seems like every day there is a new article in some national publication on how obscenely drawn our lines are (especially Pennsylvania’s 7th Congressional District, in which I am keenly interested). In addition, the U.S. Supreme Court heard Gill v. Whitford this year, a case directly challenging the concept of gerrymandering that could, if decided right, be one of the most consequential cases in the court’s history.

Here in Pennsylvania, things are really popping. While we await the outcome of Gill, there are two important cases percolating in which the district lines in our state are under judicial review.

First, there is a federal case: Agre v. Wolf. A few weeks ago, the Republicans asked for a stay of this case pending the Gill decision so that the matter could be decided under whatever new standard the Supreme Court adopts. Surprisingly, the court denied that stay, and in fact, expedited the Agre case so that any decision would be relevant to the 2018 election. That case went to trial, and I was asked to testify.

As it turns out, my testimony was taken via deposition. I arrived at the Philadelphia offices of the law firm Blank Rome at 8:30 a.m. on December 5. Since it was unclear then whether I would be testifying live later in the day, the deposition was taken in the way depositions are normally done, with opposing counsel asking the first questions. When a witness testifies in court, the counsel who calls that witness does the questioning first, and opposing counsel follows with cross examination. Doing cross first is somewhat awkward and choppy, but we did the best we could.

Essentially, I was called to say that Democrats were not invited to take part in drawing the congressional district lines in 2011, and that gerrymandering results in a more partisan, less cooperative legislature. I did that. On cross examination, the lawyer defending the district lines pointed out that I had said that as a Democrat, I was not invited to the meetings where the lines were drawn, and therefore, I was not privy to the motivation behind the decisions made. That is true. Of course I saw the lines for myself, and I also heard the Republicans talking about them and about how many seats they could guarantee for themselves. So I’m not sure how effective that line of questioning was.

As interesting as the federal case is, I actually think that the gerrymandering case in Pennsylvania state court is more interesting — and likely to be far more consequential for the 2018 election. The state case was brought in Commonwealth Court by the League of Women Voters and a group of individual Pennsylvania voters. Commonwealth Court decided to stay the case pending a decision by the U.S. Supreme Court in Gill, when Pennsylvania’s highest court did something extraordinary.

Usually, cases must be resolved fully in the lower courts before they can be appealed to the state Supreme Court, and even then, the court accepts only a small percentage of cases. However, as a constitutional court, the Pennsylvania Supreme Court has plenary (total) power over the lower courts and can essentially order them to do anything. In the League of Women Voters case, the Pennsylvania Supreme Court exercised an extraordinary procedure known as King’s Bench authority, and ordered the Commonwealth Court to decide the case and turn it over to the state Supreme Court by December 31. The trial is being held this week in Commonwealth Court in Harrisburg, and is open to the public on a first come-first served basis.

Map displaying the PA 7th Congressional District is an iconic example of gerrymandering.

Pennsylvania’s 7th Congressional District is an iconic example of gerrymandering.

It is difficult to predict what the court will do, but it seems to me very unlikely that the Pennsylvania Supreme Court took this case to uphold the current district lines, or it would have allowed the case to play out in regular order. My confidence in that prognostication is bolstered by the fact that it was a majority of four Democratic justices, who can’t be happy with the obscenely drawn Republican districts in this state, that voted to take the case.

So, what happens from here? The Pennsylvania Supreme Court gets the case on New Year’s Day and has somewhat of a hard deadline to resolve it. February 13 is the first day that petitions can be circulated by candidates interested in running for Congress. Although congressional candidates are not required to live in their districts, the voters who sign their petitions are, meaning that candidates really need to know the lines of those districts when they circulate petitions.

Assuming that the court finds the congressional district maps unconstitutional and strikes them down, the question becomes what do they replace them with? Here, there are three options.

First, the court could send the matter back to the legislature and Governor Wolf to draw new maps. But in my view, this would be a waste of time. Pennsylvania Republicans currently hold four more seats in Congress than the votes justify, solely because of gerrymandering. Any fair map would likely cause the Republicans to lose those four seats, leading to a more fair 9-9 congressional delegation, instead of the 13-5 Republican delegation we have now. I think the Republicans would be reluctant to pass a map that costs them four seats, and Governor Wolf would be reluctant to sign a map that perpetuates an unjust Republican majority.

Second, the court could appoint a special master to draw a suggested map. The special master would likely be a respected retired judge or college professor, who would be given staff, parameters by the Pennsylvania Supreme Court and a very short period of time to come up with one or more suggested maps, one of which the court would adopt.

Third, the court could ask the litigants to suggest maps, which would be submitted by the lawyers with explanatory memos. The court would then select from among the submissions.

There is historical precedent for all three of these possibilities. Whatever the Pennsylvania Supreme Court decides to do, I believe that it is not looking to overreach, despite being controlled by Democrats. We won’t be seeing a congressional delegation with a 13-5 Democratic majority. A target of 9-9 is much more likely — and it would be just a target. Representation in these presumably more competitive districts will be determined by actual elections. We could wind up with congressional delegations that are 10-8 or 11-7 either way.

I also think that the justices will be looking for prettier districts, by which I mean districts that look much more like squares and rectangles than Rorschach tests. In addition, I believe they will want to have far fewer splits of municipalities and counties than the current map contains. Splitting some municipalities is unavoidable, but it is possible to draw a reasonable map with maybe one-third the number of such splits.

So keep your eye on this case, which doesn’t get as much press attention as it should. It is very likely that congressional district lines will be dramatically different in Pennsylvania in just a few weeks. And that will be a political earthquake in our state.

 

State Sen. Daylin Leach is running for United States Congress in Pennsylvania’s infamously gerrymandered 7th Congressional District.

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