Three days ago, the Supreme Court of Pennsylvania struck down the state’s congressional map, holding that it “clearly, plainly and palpably violates the Constitution of the Commonwealth of Pennsylvania.”

Offering no rationale for this decision, which upends districts that have been in place for six years, the State Supreme Court further instructed the legislature to propose a new map by February 9, and get Democratic Governor Tom Wolf’s approval before February 15. Otherwise, the court itself will decide the new maps that will be used for the 2018 primaries and midterms.

The president pro tempore of the Pennsylvania Senate and Speaker of the Pennsylvania House—both Republicans—have now asked the U.S. Supreme Court to intervene and stay the PA Supreme Court’s decision. (Application embedded at the bottom of this post.)(pdf.)

In sum, the lawmakers argue that the court’s decision has stripped them of their federally-guaranteed authority to direct elections.

The federal Elections Clause provides that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the [state] Legislature.”

Yet because the court’s ruling explicitly rests on Pennsylvania state (not federal) law, everyone seems to think that SCOTUS will stay out this battle. Federal courts generally do not disturb a state court’s interpretation of state law.

Indeed, the legal pundits are probably right that Pennsylvania Republicans have been “hosed” with no “recourse”, as one GOP consultant lamented to Politico. 

But we should not confuse the likelihood that SCOTUS will grant the stay with the merits of doing so. There are plenty of reasons the justices might avoid intervening in something like this, even if a majority are sympathetic.

Because the court’s decision is seriously in friction with the Elections Clause, this case “is not simply a question of a state supreme court interpreting its state constitution, but a state supreme court usurping that state’s legislature’s authority expressly granted under Article I, § 4,” the legislators contend. “While a state court’s construction of a state constitution would ordinarily not be this Court’s concern, where a state court’s purported interpretation is not interpretation at all, but rank legislation at the expense of the branch of state government charged with legislation under federal law, this Court is both empowered and duty-bound to intervene.”

Of course, Republicans and Democrats often complain that unfavorable rulings amount to “rank legislation.” Usually, such complaints can be dismissed as simple unhappiness with the result.

But not always. If judges, relying only upon vague and unspecific provisions of their state constitution, can require their governor and legislature to agree on new Congressional districts within three weeks, and then, if these politicians cannot do so, simply transfer that power to the courts, then the Elections Clause is a dead letter.

The PA legislators argue in the Application:

It is undisputed that the Pennsylvania Supreme Court does not exercise a legislative function when it decides cases. Yet, the Pennsylvania Supreme Court has now legislated criteria the Pennsylvania General Assembly must satisfy when drawing a congressional districting plan, such as contiguity, compactness, equal population, and limiting subdivision splits. These standards amount to mandatory redistricting criteria of the type typically found in a legislatively enacted elections code. But no Pennsylvania legislative process—not the General Assembly itself, not a constitutional convention, not a referendum, not even an administrative agency with delegated rulemaking authority—adopted or ratified those criteria. Rather, the Pennsylvania Supreme Court wove them from whole cloth.

SCOTUS confronted a similar argument in Bush v. Gore. In 2000, Justices Rehnquist, Scalia and Thomas argued that the Florida Supreme Court had interpreted state law so unreasonably as to violate Article II’s requirement that presidential electors be appointed in a “Manner as the Legislature…may direct.”

Notably, Justice Kennedy did not sign onto this analysis, instead resolving Bush v. Gore on Equal Protection grounds. His vote will be necessary to block the Pennsylvania decision.

Steve Vladeck, a law professor at UT Austin and widely-cited legal pundit, says he thinks the argument is weaker here than it was in Bush v. Gore.

And then there’s another case that grapples with similar issues.

In 2015, in Arizona State Legislature v. Arizona Independent Redistricting Commission, SCOTUS held that Arizona voters could, through a statewide referendum, strip the legislature of its map-drawing power and lodge it instead in an independent commission—despite the Elections Clause using the term “legislature.”

Justice Ginsburg wrote for a 5–4 court that a referendum could be upheld as an exercise of state legislative power. “Redistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking, which may include the referendum and the Governor’s veto,” she wrote for the court.

Roberts—joined by Scalia, Thomas and Alito in dissent—argued that the term “legislature” referred exclusively to the representative body itself, and could not be widened to encompass a general legislative process like a voter initiative.

The lawmakers’ Application asserts that it makes no difference whether Ginsburg or Roberts is correct, because “all the Justices agreed that redistricting is legislative in character,” and that “no Justice suggested that state courts might share in [the] legislative function.”

So even if a voter initiative can be sustained as a legislative exercise, it’s simply impossible to extend that holding to a state court, which is an entirely separate branch of government. SCOTUS should hold that, absent clear language in a state constitution prohibiting gerrymandering, a state supreme court cannot, consistent with the Elections Clause, fashion such a requirement and impose upon the legislature.

Apart from legal issues, the court’s decision is also profoundly disruptive and harmful, which is a factor SCOTUS will consider when weighing a stay. The legislators explain:

The irreparable injury is all the more acute given the eleventh-hour issuance of the January 22 Order, and the confusion it injects into an election for federal office. The current Plan has been in effect since 2011 and has governed three elections, thereby acclimating voters and potential candidates alike to the current lines. Now, only three weeks prior to the nominating-petition period, this Court has ordered a new plan and has ordered the Executive Defendants to re-write the Commonwealth’s entire 2018 election calendar to accommodate the map-drawing process.

What’s more, because the PA Supreme Court has not yet released a full opinion, “the [Legislature] has now been placed on the clock without fulsome guidance.”

Still, don’t get your hopes up. The justices are mindful of the court’s image, and may be worried about being accused of “helping Republicans,” even though the PA court attempted to “help Democrats” and SCOTUS would merely be neutralizing that nakedly political (and rushed) decision.

As I noted in my earlier article, I don’t deny that Pennsylvania is gerrymandered to favor Republicans. They hold 13 of 18 seats despite winning only about half of the statewide vote, and it’s understandable why many support “evening the odds” by any means practicable.

I don’t approve of partisan gerrymandering and would like to see it replaced with redistricting by computer algorithm or independent commission. That will probably come from the federal courts fairly soon anyway. But intervention by Democrats, less than one year before the general elections and four months before the primaries, is not a sound way to secure competitive election districts.

UPDATE: The Pennsylvania Supreme Court has, by a vote of 4-3, rejected a request to stay its decision.

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Emergency Application for Stay by Legal Insurrection on Scribd