Republicans are attempting to circumvent the Pennsylvania Supreme Court’s decision to strike down the state’s congressional maps as an unconstitutional partisan gerrymander in favor of Republicans.
Leaders of the state House and Senate—Senate President Pro Tempore Joe Scarnati and House Speaker Mike Turzai— have filed an appeal with the US Supreme Court to halt implementation of the replacement congressional map the state court issued this week.
This is the third time in recent months they’ve made such an appeal in a gerrymandering case.
They first attempted to stay a similar federal court case, but that effort was denied. The court subsequently upheld the map as partisan, but constitutional.
In the earlier weeks of the current state Supreme Court case, Republicans filed for a stay on the grounds the legislature couldn’t agree on new congressional maps within the state court’s tight timeline. That application was denied by the US Supreme Court without explanation.
But Turzai said now that the state court has issued its replacement map, he thinks there’s a better case.
“This is a usurpation of power by the Pennsylvania state Supreme Court,” he said. “The whole goal here is to stop the president’s agenda and to make sure that there are more Democrats in congress than Republicans. This is a completely partisan effort.”
The court had initially allowed lawmakers a few weeks to redraw the maps. But they missed that deadline, with many complaining the justices had given them an unworkable timeline.
As per their original decision, the justices then issued new maps on their own, drawn by Stanford Law Professor Nathan Persily, a redistricting expert who has previous experience redrawing maps in other states.
Republicans acknowledge the now-unconstitutional map—drawn in 2011—was gerrymandered to favor their own party. But they contend that doesn’t matter, because redistricting is a fundamentally political process.
The key argument in their stay application to the US Supreme Court is that the state court can’t strike down any congressional map—no matter what it looks like—because the Pennsylvania Constitution doesn’t provide any criteria for it to do so.
“The Pennsylvania Supreme Court legislated criteria the Pennsylvania General Assembly must satisfy when drawing a congressional districting plan, such as contiguity, compactness, equal population, limiting subdivision splits, and now proportional representation of political parties,” they wrote.
“But no Pennsylvania legislative process…adopted or ratified those criteria. Rather, the Pennsylvania Supreme Court wove them from whole cloth.”
The plaintiffs also included arguments that the court’s actions violate the US Constitution’s Elections Clause, which gives state legislatures authority over drawing congressional maps.
And they allege the court violated its own standards of compactness and contiguity, and say it gave elected officials an unworkable timeline to fix the maps.
State Democrats and a number of Republicans have differed with the case that Turzai and Scarnati are making.
Senate GOP Leader Jake Corman, for instance, had opposed the short timeline the justices imposed for the legislature to redraw the map, and supported lobbying the state court for an extension so that lawmakers could work together to compromise on a new one.
But he didn’t question the court’s right to rule the old map unconstitutional.
“We could have had a bipartisan approach,” he said last week. “The Republican leaders of both the House and Senate, and the governor standing here with you to lay out this process, which I think would have given confidence to the people of Pennsylvania that this was being done in a fair way.”
The same morning that Turzai announced the filing of the stay application, House GOP Spokesman Steve Miskin posted a tweet that seemed to undercut the argument that state courts cannot declare congressional maps unconstitutional.
Nobody questions @PASupremeCt authority to declare a map unconstitutional, but their "remedy" violates the Constitution by drawing their own replacement map. That power is only granted to the states through the enactment of legislation by the General Assembly and the Governor. pic.twitter.com/JE6MeHGGeX
— Stephen A. Miskin (@Sam1963) February 21, 2018
In their original decision, the court’s Democratic justices argued they can invalidate congressional maps under Article I, Section 5 of the state constitution.
It states, “elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”
Partisan gerrymandering, the majority opinion said, “dilutes the votes of those who in prior elections voted for the party not in power to give the party in power a lasting electoral advantage…It is axiomatic that a diluted vote is not an equal vote, as all voters do not have an equal opportunity to translate their votes into representation.”
The justices noted that the state Supreme Court has never before ruled that a redistricting plan violates the Free and Equal Elections Clause. But they concluded that “we have never precluded such a claim in our jurisprudence.”
If a federal court doesn’t intervene, the state Supreme Court’s new congressional map is slated to take effect in time for the May 15 primaries—and could net democrats several new seats.