Editor’s note: This article was written prior to the Pennsylvania Supreme Court’s ruling in League of Women Voters v. The Commonwealth of Pennsylvania, which was just handed down. In its opinion, the court held that Pennsylvania’s congressional district maps violate the state constitution. The ruling also requires that the maps be redrawn in time for the May 2018 primaries.
People who are concerned that elections in the U.S. are “rigged” should be thrilled with the wave of new court cases on partisan gerrymandering, which voice this contention, and even better, propose remedies for the problem.
Gerrymandering, the process by which legislators in power design their own districts to pick up the votes they need to stay in office, has been with us since the early years of the republic. In fact, the term was coined in 1812 when Governor Elbridge Gerry, of Massachusetts, approved a district map drawn with the intention of maintaining a Republican-controlled legislature. An editor from the Boston Gazette likened a particularly odd-shaped district on the new map to a salamander — and as a dig to the governor, nicknamed it a “Gerry-mander.”
Today, high-powered computers process the voting and registration data from thousands of election districts to design congressional and state legislative districts that predetermine the outcome of future elections. For voters whose district has been assigned to the other party, there is little reason to bother to take part in the general election at all.
Three cases hold out hope that partisan gerrymandering in Pennsylvania can be eliminated, or at least curbed. Gill v. Whitford challenges the gerrymandered Wisconsin state legislative districts. Wisconsin tends to be a swing state, with about equal Democratic and Republican voters. Republicans, holding the governor’s office and control of the state legislature, adopted a district map that virtually assured Republican control of the legislature in future elections. The federal District Court for the Western District of Wisconsin ruled last year that this map deprived voters of both equal protection and the First Amendment right of free association. The case is on appeal to the United States Supreme Court, with a decision expected anytime between now and June.
The second case, decided by the District Court for the Middle District of North Carolina, Common Cause v. Rucho, challenged the North Carolina gerrymander, which has reliably tilted congressional delegations at least 9 to 4 in favor of Republicans. The court concluded that the redistricting violated the First Amendment, the Equal Protection Clause and the provisions of Article I of the Constitution requiring the people to choose their Representatives and the states to establish the rules for congressional elections. The three-judge federal court was unanimous on the findings of violation of voters’ rights, and the court ordered that the maps be redrawn. Without doubt, this case will continue up the appeal ladder, with the benefit of a very complete District Court decision. In fact, defendants have already begun the process by asking the U.S. Supreme Court to stay the District Court’s order while the case is on appeal.
The third case, League of Women Voters v. The Commonwealth of Pennsylvania, challenges the congressional district map here in Pennsylvania, which has consistently produced 13 Republican to 5 Democratic seats, despite an edge in registration and votes in the opposite direction. The unique character of this case is that it was filed in Pennsylvania state court, not federal court. In addition to arguing both traditional First Amendment and Equal Protection claims under the Pennsylvania constitution, the petitioners also argued that our state constitution has language ensuring equal voting rights to all citizens of the state. Following the traditional path of upholding legislative action, the Commonwealth Court judge who heard the case issued a recommended decision to maintain the existing district maps.
The case is now before the Pennsylvania Supreme Court. During a recent hearing, some of the questions from the bench suggested that the court may be willing to overturn Pennsylvania’s current district maps. Yet, the justices — the majority of whom are Democrats — also expressed concern over what is the proper standard for unconstitutional gerrymandering and what is the practical implication of a decision that requires the redrawing of district maps. There is only a short window remaining for maps to be redrawn in time for the May 2018 primary elections. Other possible scenarios are to postpone the May primary until the summer, or to delay the redrawing of the maps until the 2020 elections. For now, the parties in this case await the court’s decision.
In addition to these three big cases — Whitford, Rucho and League of Women voters — the issue of partisan gerrymandering has also been raised in cases in the Federal District Court for the Eastern District of Pennsylvania. In the case of Agre v. Wolf, plaintiffs argued that the Pennsylvania gerrymander is an abuse of the power of the state under the Elections Clause in Article I of the Constitution, a violation of the Equal Protection Clause under the 14th Amendment and a violation of free speech under the First Amendment. A three-judge panel dismissed the case earlier this month, and the plaintiffs have since appealed to the U.S. Supreme Court.
Regardless of the outcome in the Supreme Court, the Agre case has already made some important contributions to the field. First, the federal court in Agre allowed a much broader scope of discovery than the state court did in League of Women Voters, making it possible for some important facts about the Pennsylvania gerrymander to creep into the state case. Second, Judge Baylson wrote a lengthy dissenting opinion in Agre that preserves the evidence and arguments in great detail, and elucidates the development of the law since Baker v. Carr, the 1962 “one person, one vote” decision that launched the federal courts into the redistricting field.
An even more recent case in the District Court for the Eastern District of Pennsylvania, Diamond v. Torres, also challenges Pennsylvania congressional redistricting. This case, still in pretrial motions, was brought on behalf of voters registered as Democrats in several of the state’s western and southeastern districts.
The federal court cases on redistricting may ultimately rise or fall on the vote of Justice Kennedy. The present state of the law derives from a 2004 decision by Justice Scalia in a case out of Pennsylvania, Vieth v. Jubelirer. In that case, Justice Scalia declared that there was no perfect redistricting map, and that redistricting is political and will not be disturbed by the courts. Justice Kennedy joined in the decision, but wrote in his concurrence that he “would not foreclose all possibility of judicial relief … to correct an established violation of the Constitution in some redistricting cases.” With Justice Kennedy’s vote, the Pennsylvania redistricting plan in Vieth was upheld by the barest majority: 5-4.
However, for optimists in Pennsylvania today who despise rigged elections, the hope is that in the League of Women Voters case, the Pennsylvania Supreme Court is ready to follow the lead of the lower courts in Whitford and Rucho, and declare that our congressional district gerrymander is unconstitutional. A case like League of Women Voters, which is based on state law, might not trigger U.S. Supreme Court review, meaning that the outcome might be effective soon, even as soon as the 2018 congressional elections. Time — but not much time — will tell.