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