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Pennsylvania legislators seek SCOTUS Emergency Stay of new congressional district map

Pennsylvania legislators seek SCOTUS Emergency Stay of new congressional district map

PA Supreme Court imposed map even more favorable to Democrats than Democrats had requested.

On February 19, 2018, the majority Democrat members of the Pennsylvania Supreme Court imposed a new congressional district map that was very Democrat friendly, likely swinging 4-5 seats to Democrats. It could be the difference between Democrats taking control of the U.S. House or not in the 2018 midterms.

The map became so Democrat-friendly after a series of decisions as to placement of boundaries that helped Democrats. Nate Cohn at The NY Times described it this way:

Few people expected that the Pennsylvania congressional map, which the state Supreme Court ordered redrawn to undo Republican gerrymandering, would prove to be as favorable to Democrats as the one adopted by the court on Monday.

Perhaps the easiest way to convey the cause for surprise: The new map is better for Democrats — by nearly every measure — than the maps that Democrats themselves proposed.

How could that be?

It is hard to explain. Perhaps all four Democratic map proposals reflected an earnest effort to reach a compromise with Republicans. The more likely explanation is that Democrats did not believe it was realistic to demand such a favorable map, since it would require a series of Democratic-leaning choices. And the court order did not specify that the maps should aim for partisan balance, which might have justified a more Democratic map.

Apparently, a more favorable map was quite realistic; after all, it is now a reality, one that gives a significant boost to Democratic hopes of retaking the House. It’s a reality because the newly adopted map consistently makes subtle choices that nudge districts in the direction of Democrats.

The issue, Cohn notes, is that heavy Democrat voting numbers in the Philadelphia area means Democrats win by huge majorities in a small number of districts, but lose elsewhere in the state:

A series of pro-Democratic choices would be necessary to create statewide partisan balance, since lopsided winning margins in Philadelphia and Pittsburgh put Democrats at a considerable disadvantage in translating their votes to seats statewide.

By redrawing districts statewide to compensate for heavy Democrat numbers in the Philadelphia area, the PA Supreme Court pretended to be imposing more fair maps. In fact, the PA Supreme Court took into account partisan voting when drawing the maps. This was partisan gerrymandering of the type the PA Supreme Court decried when the Republican legislature did it in 2011, except this time it was the PA Supreme Court doing it to an end they liked more.

The new map has Republicans in Pennsylvania talking about a possible impeachment of the PA Supreme Court justices:

Pennsylvania Sen. Pat Toomey (R) called for a “conversation” about impeaching state Supreme Court justices over their new congressional map, which both parties say will benefit Democrats.

At a press conference, Toomey said it was “inevitable” that state lawmakers would consider impeachment over the redrawing of the state’s new congressional maps, which he called a “power grab” by state Democrats.

“Look, I think it’s inevitable that that conversation’s going to take place,” Toomey said. “I think state House members and state senators are going to be speaking amongst themselves and their constituents, and the fundamental question is does this blatant, unconstitutional, partisan power grab that undermines our electoral process, does that rise to the level of impeachment?”

Prior to the final map choice being issued by the PA Supreme Court, Republican legislators had sought an emergency stay from Justice Samuel Alito, who has responsibility for the Third Circuit, which include Pennsylvania. Alito denied the stay without an issued opinion and without even referring the request to the full court.

We don’t know why Justice Alito denied the prior stay. It may have been that he viewed the matter as premature, as the PA Supreme Court had not yet acted on a final map. Perhaps once a final map was issued, and the dispute clarified, a stay would be considered.

We’re about to find out. The PA legislators are again seeking an emergency stay. The Emergency Application for a Stay (pdf.) is embedded at the bottom of this post.

The Application focuses on what the PA legislators see as the key legal issue, that the PA Supreme Court usurped a power vested by the U.S. Constitution in state legislatures (Article I, Section 4):

The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.

The Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day.

From the Application opening paragraph:

This case arises from the Pennsylvania Supreme Court’s usurpation of the Pennsylvania General Assembly’s legislative authority to draw its congressional district lines through its preordained invalidation of the lawful districts the General Assembly enacted in 2011 (the “2011 Plan”). At all stages, the Pennsylvania Supreme Court set this case on a path whereby only it would draw Pennsylvania’s new congressional districts—a task delegated to the “Legislature”—in violation of the Elections Clause. U.S. Const. art. I, § 4. But as Justice Kennedy stated in League of United Latin Am. Citizens v. Perry, “drawing lines for congressional districts is one of the most significant acts a State can perform to ensure citizen participation in republican self-governance. * * * As the Constitution vests redistricting responsibilities foremost in the legislatures of the States and in Congress, a lawful, legislatively enacted plan should be preferable to one drawn by the courts.” 548 U.S. 399, 415-16 (2006). “Underlying this principle is the assumption that to prefer a court-drawn plan to a legislature’s replacement would be contrary to the ordinary and proper operation of the political process.” Id. at 416. The Pennsylvania Supreme Court conspicuously seized the redistricting process and prevented any meaningful ability for the legislature to enact a remedial map to ensure a court drawn map.


Pennsylvania Redistricting Case – Emergency Application to SCOTUS for Stay 2-21-2018 by Legal Insurrection on Scribd


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I *have* to think SCOTUS will take it. If not, the Republic is lost.


Let’s watch and see.

Is it too late for the PA legislature to act in creating a redistricting map that does not over-step?

    Aarradin in reply to Ragspierre. | February 22, 2018 at 2:07 am

    The one they’ve had in place since 2011 does not “overstep”. Whatever that’s supposed to mean – judicially invented rules in violation of their Constitutional duty and power to draw the lines.

    It survived judicial review once before.

    And, the legal time period to challenge it expired in 2014.

pablo panadero | February 21, 2018 at 9:33 pm

Good arguement about the usurpation of powers. The legislature should impeach the entire court so that no ruling could be made.

    The Court’s legislation from the bench was done on purely partisan political lines.

    Vote was 4:3

    Really no point pretending they are jurists any more.

    Robed Dictators is their actual function.

Yes the NATIONAL Charter, the US Constitution, assigns the role to the “legislatures of the several states”. But the State Legislatures are themselves bound to uphold their own state constitution, and that constitution does give clear and straightforward guidance on how to establish electoral district boundaries. The Pennsylvania Legislature did not abide their own Constitution, that being the ONLY authority they have to act as a state legislature is that bound by their own state constitution.

The NATIONAL Constitution does not create, does not direct or compel, does not permit any particular state action. That ONLY comes via the state’s own Constitution. The National Constitution does forbid certain actions by the states, but any authority of the legislature in that state is limited by bounds of the STATE Constitution. Thus when drawing the national electoral assembly or national representative assembly districts the legislature has no power except what the STATE Constitution allows, and that guidance was egregiously ignored in the map which the court had to make an emergency correction, a temporary correction.

Harms abound. ANY choice is a harm here it seems. The Court acted beyond it’s normal authority and worse did the legislature, perhaps. The Legislature’s map is a harm to the people as it mocks the State Constitution. In wielding emergency power to make a correct (temporary) map the State Supreme Court acted in extingency outside any permit of the State Constitution. But without a map the people have no vote — a harm indeed.

What is the cause: faction and faction, seeking political power rather than the common good of the people!

    TimothyJ in reply to bvw. | February 22, 2018 at 12:02 am

    I have been wrong before, but I believe that if the state constitution conflicts with the federal then the federal takes precedence over the state.

    Milhouse in reply to bvw. | February 22, 2018 at 12:23 am

    But the State Legislatures are themselves bound to uphold their own state constitution, and that constitution does give clear and straightforward guidance on how to establish electoral district boundaries.

    The state constitution gives no instructions on how, or even whether, congressional districts should be drawn. Nothing in it compels the PA legislature to have districts at all. It could provide for the entire delegation to be elected at large by the whole state. Article II §§ 16-17 refer only to the districts of the PA legislature itself.

    Now the state supreme court suddenly found instructions hidden somewhere in the constitution where nobody had noticed them for over two centuries. OK, I suppose that’s its privilege, but there’s no way the legislature could have been on notice beforehand about this new discovery.

    And regardless of any of this, the PA court is simply not authorized to draw its own map. The map it draws is by definition invalid. It’s no different from a map you or I might draw. And people elected according to that map should not be seated by the next House.

      A mighty NO! And it is a strange no to our ears in this era, so frothy with agitation, discord, the potent and fierce forces of faction, the backrooms full of the bribed and corrupted, In Pennsylvania — like most states long established — there is bribery and self-interest aplenty. It is endemic, it has become the most prevalent fabric in the cloth of state and county government, of local governments. Such is the destiny, perhaps, of man and why we must after mo more than 120 years die So corrupt too are the older establishments of men.

      The state GOP men (mostly or all men, if I recollect) in drawing there pervertedly gerrymandered beast of a map sought ONLy their own interests! It is a pretty penny, a massive nexus of interconnections that the state GOP operates. A man gets into the legislature to be set for life, and his children and spouse too. So too the Democrats. Where is ethics’s interest of the Commonwealth, or We the People.

      There are a few men, and women, in this state’s legislature that operate to moral standard, most however can only successfully enter the realm of state election, of county election, of large city election by becoming a proven player of the debased and corrupt game of faction. Each faction competes for the prizes of office and connections. This continues into the courts a well, whether in a long established state where the courts are appointed (say as at the Federal level) or in a state where the courts are elected (the judges in the courts are elected). The Commonwealth of Pennsylvania as an elected Judiciary. A judgeship is filled by a election, the judgeship goes up for election in a period, additionally sitting judges may be forced to compete for re-election by intermediate “judicial retention ballots”, where the voters may chose to force a new election for that particular judgeship. In practical fact in short time those elections force the Judges, any man or woman seeking to hold a Judgeship, into the forceful and grubby hands of the highly factional political parties.

      Yet this is not where the almighty NO! arises. The NO arises from a understanding of the natural laws of agency and fealty. STATE legislature is a body CREATED by the STATE’s charter. It is a charted agency, wholly bound to ONLY act upon the creator’s interest, and within the bounds that the CHARTER or ancient established understandings (common law) allows. The NATIONAL GOVERNMENT did not create the state legislature. Nor can the National Government (or that national government’s charter, The Constitution of the United States) create duties for a “legislature” in the state. It may restrict the operations, ban or constraint certain state actions per that National Charter which the States, in joining the Union of States did either actively or by mere circumstance of joining into the Inion agree to.

      The National Government provides by Federal law (not the Charter) restraints upon what the national electoral districts must be. These are are different than that which the state of Pennsylvanias own Charter sets requirements for electoral districts. Yet they are NOT at odds. The STATE’S CHARTER provides different limits of the STATE’S legislatures ability to act as an agent of the people in the state on the drawing of such districts, than the FEDERAL LAW STATUTE directs for the result of such mapping. Where there is no discord, and there is not, for the agents of the state’s people acting as FAITHFUL AGENTS must indeed satisfy the State’s charter in regards re-dristricting. That is the STATE’S AGENTS, the legislature and no magical grant of a new power from the national government. The national government is not their creator. There is only one God. Not that the State is a God, for there is indeed in every way only ONE GOD, but the exact same principle as set out in the Ten Commandants, the first few commandments also applies to this agency of legislative power.

      The STATE LEGISLATURE as a solemn duty to uphold even the nuance and inferences of the STATE’ CHARTER, and the guidance, the requirements for electoral district mapping is more than a nuance!

        Arminius in reply to bvw. | February 22, 2018 at 2:03 pm

        A mighty NO? An ALMIGHTY NO? You are so full of yourself. And your comment is full of you-no-what. The state legislature did redraw the map as the state supreme court ordered with Democratic party input. As the article states, not even the state’s Democratic party legislators dared to ask for this partisan a map in their favor. No fault could be found with the redrawn map, but the partisan Democratic governor Tom Wolf simply rejected it out-of-hand because he knew he could get an even better map for Democrats from an un-democratic source.

        And the state supreme court with the aid of a partisan leftist Stanford professor came up with this hackery.

        Take your feeble, mewling no and shove it.

          A mighty no it is. A faithless legislature it may be. A state government and judiciary overrun with corrupted self-interest and faction it is.

          A man should be “full of himself”, that is: intrepid and courageous, bold. Yet a man or woman should also understand to whom their loyalty and fealty — faithfulness in operation and decree — is due.

          Which devil is your mockery due to? If you can name the devil who causes your uproar and mockery, you might gain some power over him, eh? Or better yet drop the devil’s own favorite weapon: vile mocking. Obviously you vested in giving the devil his due. How about to a fellow human, me?

          The PA legislature, in both factions, and perhaps the PA judges as well, all operate by the potent dynamics of faction and lust for power. Who then represents the people? Yet in how they have acted, that beastly map — wholly gerrymandered solely for the sake of keeping power and gaining more — faithless to their charter of agency. To their duty.

(Checks the PA Supreme Court Wiki) 5 Democrats. 2 Republicans.

Gee, I wonder if that had anything to do with the decision.

    Aarradin in reply to georgfelis. | February 22, 2018 at 2:12 am

    4 D’s voted for the new map, bipartisan opposition in the minority.

    A few years ago, the D’s sank over $10 million into the election of 3 State Supreme Court super-legislators/proxy governors (no point pretending they are merely judges).

    Those races typically draw from $10k to $150k per candidate in spending.

    Looks like they’re getting their money’s worth.

Is it my imagination or what that the liberal judges across this country are now declaring war on Republicans? It seems just abut every day they use their position of authority to right some perceived wrong to get even with conservatives as a by product of losing the Presidency to Trump. It would seem that if these judges do become so blatantly partisan, then they need to be removed and fair judged replace them.

Why does it seem that every time Democrats are involved in something its as corrupt as fuck??

    It’s who they are. It’s what they do. Democrats are only interested in getting power, increasing it, keeping it and taking it back if they lose it. No matter what it takes.

By hook or by crook.

This is why the Democrats have been working hard to get their Judges in place and why it was so important for Trump to win over Hillary. Funny how the Republicans want judges who will judge using the Constitution and law, while the Democrats want judges who can alter the laws to suit their views.

I hope they do look to impeach these judges who have far overstepped their authority. Looking at all the BS judges have done to block Trump, I think the talk about impeaching judges needs to become more widespread.