With a “clear, plain, and palpable” eagerness to seize control of the Pennsylvania congressional map in time for the 2018 mid-term elections, the Pennsylvania Supreme Court has gone beyond judicial activism and joined with the Democrats in their attempt to win control of the U.S. Congress. The details of how this came about and the strategies behind them have not been adequately reported elsewhere.

The Pennsylvania case, handed down on January 22, is the fourth “partisan” or “political” gerrymandering case to emerge in the growing trend for the judiciary to take over the drawing of electoral districts. In October of last year, the United States Supreme Court heard oral arguments in the Wisconsin partisan gerrymandering case of Gill v. Whitford, and that case is awaiting decision.  On January 9 of this year, in Common Cause v. Rucho, a federal district court in North Carolina held that the 2010 re-districting map drawn up by the Republican-controlled state legislature and under which Republicans hold 10 of 13 congressional seats was an unconstitutional partisan gerrymand in violation of the First Amendment and the Equal Protection Clause. The court ordered the legislature to come up with a new map within two weeks. The United States Supreme Court has now put that case on hold pending the appeal by the North Carolina legislature to the federal appeals court. In the partisan gerrymandering case of Benisek v. Lamone, a Maryland federal district court in August 2017 refused to overturn the boundaries of a single Maryland congressional district for alleged equal protection and speech/associations violations. Oral arguments in that case are scheduled in the United States Supreme Court on March 28, and the eventual decision will almost certainly be combined with the Court’s decision in Gill v. Whitford.

The two January cases, Pennsylvania’s and North Carolina’s, in which Republican-dominated legislatures were ordered to re-draw maps immediately, have been widely perceived and reported as being part of the already-underway 2018 electoral cycle in which the overriding issue is whether the Republicans Party will lose control of the Congress. The Democrats need a switch of 24 seats to win control of the United States House of Representatives. The total number of congressional seats for North Carolina and Pennsylvania combined are 31, of which 22 are held by Republicans. If under new redistricting plans fashioned more favorably for Democrats, the Democrats could win, say, half of those 22 seats, the national Democratic party as a whole could achieve almost half of its needed switches from those two states to flip the House in its favor. It can be seen, then, that the Democratic Party did not select those two states by accident.

A decision without a ruling

On January 22, 2018, the Pennsylvania Supreme Court issued an injunction against the use of the state’s 2011 re-apportionment plan in the 2018 House elections.* That state currently has 18 House seats, of which 12 are held by Republicans, five by Democrats, with one vacant seat. The reapportionment map was drawn up after the 2010 census by the state legislature, newly in control of the Republican party. Before 2010, the Republicans held only seven of what was then 19 seats.

After hearing oral argument on January 17 on a decision handed down by the trial court on December 29, the Pennsylvania Supreme Court held that the 2011 redistricting plan violated the state constitution “clearly, plainly, and palpably.” The Court did not state what provisions of the state court had been violated. It did not refer to any of the facts that had been developed in the trial court. With primaries for the House scheduled for May 15, 2018, the Court gave the legislature until February 9—that is, 18 days from its January 22nd decision—to come up with a new redistricting plan. The Court also said that the new plan, if signed off by the governor, must be submitted to the Court by February 15. The Court said that it would “proceed expeditiously to adopt a plan” of its own based on the evidence presented in the trial court if it did receive a plan from the legislature. The Court invited “all parties and intervenors” to submit their own plans and stated that the new electoral districts must be compact and avoid dividing city and counties, as well as comply with the mandatory one-person-one-vote requirement of equal population.

The Court then ordered the executive branch to be ready to implement the new districts on February 19, only four days after the date when proposed plans must be submitted to the court. In its three-page Order, the Court included no statement of jurisdiction or account of the proceedings below. The Court excluded the March 13th primary for the vacant seat from the Order. The Court said that an “opinion”—that is, the normal factual and legal justification for a court’s decision—would “follow” at some unstated date.

The Pennsylvania Supreme Court stated that it was ruling “on [the] sole basis of the state constitution; that is, it was making it clear that it was not basing its decision on the federal constitution in any way. By thus excluding federal constitutional issues, the Court was putting into effect a calculated strategy to avoid losing the case to the United States Supreme Court. The same purpose was reflected in its omitting any reference to or entry on the docket of the decision of the trial court, whose decision was based on both the state and the federal Constitution and included extensive analysis of federal cases (see below). A federal constitutional ruling by a state supreme court is immediately appealable to the United States Supreme Court. And an appeal to that Court would almost certainly have resulted in the Court imposing a stay as the Court did in the case in North Carolina, the other federal case whose purpose was to redraw 2018 electoral districts. In contrast, the federal constitutional rule is that decisions of state supreme courts based solely on their state constitutions are not appealable in the federal courts.

Nonetheless, such appeals are being attempted. And now, in an act just as unprecedented as the decision of the state supreme court, the Republican president pro-tempore of the Pennsylvania state senate, Senator Joe Scarnati, yesterday stated that he will not cooperate with the order of the Court “in light of the unconstitutionality of the Court’s Orders and the Court’s plain intent to usurp” the legislature’s role in re-districting.

All state judges in Pennsylvania are elected. They stand for election in partisan primaries and in the general election. They serve ten-year terms. The current governor, Democrat Tom Wolf, was elected in 2014, and the governorship is up for re-election in 2018.

Three dissents

In this case, the Pennsylvania Supreme Court voted 5-2 to cancel the congressional maps. The two dissenters and one partial dissenter did not think that the federal Constitution could be ignored, and each worried about the extent of the political power the Court was proposing to exercise. Democratic Justice Max Baer joined the majority in finding that the 2010 Plan was unconstitutional under the state constitution. But, he referred to both the federal and state constitutional cases and warned that the haste of the majority threatened “serious disruption of orderly state election processes and basic governmental functions.” He proposed, instead, that the new plan should be drawn up only for the 2020 elections.  Republican Chief Justice Thomas G. Saylor dissented and said that the drawing of “congressional district boundaries” was a “quintessentially a political endeavor assigned to state legislatures by the United States Constitution.” He argued that in light of “the proximity of the impending 2018 election cycle” that “restraint” was “appropriate.” Dissenting Republican Justice Sallie Updyke Mundy criticized the “vagueness” of the Court’s decision and the lack of specifics about four different provisions of the Pennsylvania state constitution, “each of which has a different mode on analysis.” She also said that the proposition “this Court may undertake the task of drawing a congressional map on its own raises a serious federal constitutional concern.”

The trial court: free speech and association

The lower court had conducted a week-long non-jury trial in December 2017 and on December 29 had filed an 125 pages of findings of fact, including an analysis of the testimonies of six re-districting experts, and conclusions of state and federal constitutional law.

In its Summary of Key Findings and Conclusions, the trial court held that the plaintiffs not met “their burden of proving that the 2011 Plan as a piece of legislation, clearly, plainly, and palpably violates the Pennsylvania constitution.” That after agreeing that “partisan considerations are evident in the 2011 Plan, such that the 2011 Plan overall favors Republican Party candidates in certain congressional districts.” The Court, repeating the doubts expressed in the two relevant rulings, Bandemer (1986) and Vieth (2004), of the United States Supreme Court in the area of partisan gerrymandering, concluded that the plaintiffs had not “articulated a judicially manageable standard” by which to measure and rule on whether and when such gerrymandering constitutes a constitutional violation.

The trial court judge, P. Kevin Brobson, pointed out that there is no Pennsylvania statute or constitutional provision prohibiting partisanship in the drawing of electoral districts and that the United States Supreme Court has expressly recognized that partisanship is an element of partisan elections and the drafting of legislation. The question is how much partisanship is too much?

Can excessive partisanship violate constitutional guarantees of free speech and association? This is a question U.S. Supreme Court Justice Anthony Kennedy asked and challenged future plaintiffs to address in his concurrence in Vieth? The trial court quoted a prior decision of the Pennsylvania Supreme Court—which has been widely quoted by the media in the coverage of this case—that Pennsylvania’s free speech and association guarantees are “broader than the federal constitutional guarantee.” But the trial court quoted state cases holding that the federal constitutional standard ought almost always to be considered. As far as applying that either standard to gerrymandering, the trial court had few cases to consider. Judge Brobson analyzed as a possible precedent a case that went from the Pennsylvania Supreme Court to the United States Supreme Court and back again that involved a Pennsylvania statute prohibiting public nudity. He also considered a federal case involving the obscure issue of whether a political candidate can appear on the ballots of two different political parties. Overall, he pointed out that neither any Pennsylvania courts nor the United States Supreme Court has ever based a partisan-gerrymandering decision on free speech or associational rights, state or federal.

The trial court came to the simple conclusion that has been widely ignored in partisan gerrymandering cases: namely, that no plaintiffs in such cases have ever alleged that their rights as citizens to participate in election campaigns, to vote, and to donate money to preferred candidates have been denied or compromised. He pointed out that the 2011 Pennsylvania re-districting plan would not “have passed the state legislature without Democratic support.” The obvious implication of that ruling of the trial court is that the Pennsylvania Democrats assented to a plan that gave them three guaranteed seats and hoped-for competitiveness for other seats, and that they did so out of fear of a worse plan. That is: mutually partisan bargaining, negotiation, and compromise —politics. It’s what legislatures do.

The trial court: equal protection

What about equal protection? Judge Brobson stated that the Pennsylvania Supreme Court had preciously and conclusively held that the state constitution’s equal protection standards were “conterminous with” the federal constitutional standards. As for the field of partisan gerrymandering, Brobson pointed out the United States’ Supreme Court’s 2004 Vieth case had overruled that Court’s 1986 Bandemer case, which had required an “actual discriminatory effect” on “an identifiable political group.” He also remarked that two of the current federal partisan-gerrymandering cases, the one from Wisconsin and the one from North Carolina, have both expressly asserted that Bandemer was no longer good law. Nevertheless, the prevailing Pennsylvania precedent was based on Bandemer, so if a ruling on the present gerrymandering case were to be based on decisions of the Pennsylvania Supreme Court, then it had to be based on the bad law of Bandemer.

The trial court held that there is a definitive distinction between voters and political parties and their candidates. Although granting that the 2011 re-districting plan had been clearly drawn to give Republican candidates “an advantage in certain districts,” the trial court held, nonetheless, that “voters who are likely to vote Democratic (or Republican) in a particular district based on the candidates or issues, regardless of the voters’ political affiliation, are not an identifiable political group for purposes of the Equal Protection Guarantee under the Pennsylvania Constitution” [emphasis added].  Further reflecting on the “actual discriminatory effect” test, Judge Brobson noted that nothing in the record showed that the plaintiffs lacked political power, fair representation, or that they have been “shut out of the political process.”

Plain meaning and plain intent

The trial court, after reviewing all the facts in the case and both Pennsylvania and federal constitutional law and cases, stated on the second-to-last page of its 128-page decision that the plaintiffs had “failed to meet their burden of proving that the 201 Plan, as a piece of legislation, clearly, plainly, and palpably violates the Pennsylvania.” In its Order 25 days later, the Pennsylvania Supreme Court, without even a mention of any specific clause of the Pennsylvania constitution or referring to any facts in the case, threw the “clearly, plainly, and palpably” words back into the face of Judge Brobson.

Such a sneering and sarcastic retort is well beyond the norm of judicial language in American courts. But the astonishing sweep of the case itself, and, now, the resistance by the Pennsylvania Senate are likewise unprecedented and beyond the norm. 

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*See the full ruling here.

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