On January 22, the Pennsylvania Supreme Court, on a 5—2 party-line vote, struck down the state’s congressional map and ordered the legislature to draw a new one by February 9. See my prior post, Bad news for GOP: Pennsylvania Supreme Court tosses state’s congressional maps.
Two members of PA’s state legislature—its Speaker of the House and president pro tempore of the Senate—quickly asked the U.S. Supreme Court to intervene and stay the ruling.
The request went to Justice Alito, who has responsibility for the Third Circuit.
This afternoon, Alito denied a stay, bringing the 14-day drama to an end. After requesting additional briefings from the legislators and plaintiffs in the case—leading observers to speculate that a majority might be seriously entertaining intervention—Alito denied the legislators’ application without comment and without even referring the request to the full court.
Most likely, he saw that there was no chance five justices would touch this, or wanted to send a message to Republicans that it’s hopeless to try to persuade the Court to involve itself in internal disputes between the branches of state governments—the Elections Clause notwithstanding (see prior post on this.)
While SCOTUS has intervened in Wisconsin, Texas, and North Carolina to block lower court rulings requiring re-districting before 2018, Pennsylvania seems to have been a bridge too far for the justices.
As I noted in my earlier piece, virtually no one was expecting SCOTUS to grant a stay, as it has in other gerrymandering disputes, because this re-districting was ordered by a state court on the basis of a state constitution, not a federal court on the basis of the Federal Constitution—as was the case in NC, TX and WI. Federal courts generally do not disturb a state court’s interpretation of state law.
In this particular instance though, that’s a shame because it just allows a partisan state court to draw the maps instead of a partisan state legislature—it’s not like the PA legislature’s map has been substituted for that of a computer or an independent commission. Perhaps the PA Supreme Court will decide to be “fair,” but there’s no guarantee that it will. Certainly no one can force it to be.
As it happens, the legislators are now asking two PA Supreme Court justices to recuse themselves due to their public statements in opposition to gerrymandering—a little late, no doubt.
The litigation will drag on, but the story is over. The decision stands and the districts will be redrawn.
The good thing for the GOP is that I may have previously exaggerated the impact re-districting will have: it turns out that new maps may not cost them more than two or three seats.
One of the most egregiously gerrymandered districts—Pennsylvania’s 7th—is currently represented by Patrick Meehan, who is retiring anyway due to reports that he used taxpayer money to settle a sexual harassment allegation.
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