Allege violation of federal Constitution Elections Clause for new map that is more friendly to Democrats than Democrats proposed.
A new theater has opened up in the great Pennsylvania Redistricting Battle of 2018, with Republicans filing a federal lawsuit to halt court-ordered redistricting that could cost the GOP four seats in the House this November.
On January 22, the Pennsylvania Supreme Court declared that the state’s Congressional map, which had been in place since 2011, violated the state constitution. The Republican legislature and Democratic governor were directed to agree on a new map. They failed to do so, and on February 19, the court adopted a new Congressional map devised by Stanford professor Nathaniel Persily.
Indeed, had the court simply gone with a “partisan-blind” remedial map, it would be tough to raise a principled objection. But the court overreached by going further and neutralizing a natural Republican edge that no one—including the justices themselves— ever claimed was illegal.
Last night the state Speaker of the House and president pro tempore of the Senate—both Republicans—applied for a stay from the U.S. Supreme Court.
Justice Alito, who handles appeals from the Third Circuit, already rebuffed a similar request on February 5.
But a crucial distinction between the rejected request and this new one, law professor Josh Blackman notes, is that the Elections Clause violation is no longer speculative.
4/ I don't put much stock in J. Alito's denial of the stay before the PA Supreme Court drew the map. At that point, there was not yet a plausible violation of the Elections Clause. Now that the map has been drawn, the facts are different.
— Josh Blackman (@JoshMBlackman) February 22, 2018
Concurrently, Pennsylvania Republicans today filed suit in the United States District Court for the Middle District of Pennsylvania, naming as defendants Robert Torres, Pennsylvania’s Secretary of State, and Jonathan Marks, a state elections officer—both are responsible for implementing the court’s map before the 2018 primaries and midterms.
In the filing, embedded below, the Republicans argue that the Pennsylvania Supreme Court violated the U.S. Constitution’s Elections Clause (1) by divining “‘mandatory’ redistricting criteria found nowhere within the Pennsylvania Constitution or legislative enactments” and (2) by “failing to afford the General Assembly the requisite ‘adequate opportunity’ to craft a substitute Congressional redistricting plan.”
The Elections Clause directs that “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.”
Republicans allege that, by giving the General Assembly only three weeks to draw remedial districts and withholding a full opinion for most of that duration, the court acted in bad faith and was “intent on usurping the General Assembly’s delegated authority and crafting a plan of its own.”
Interestingly, the Plaintiffs in this lawsuit include incumbent Republican members of the House, who, without federal court intervention, will have wasted time and money campaigning to represent voters who have now been penciled out of their districts. One such plaintiff is Ryan Costello:
Under the Congressional districting plan recently crafted by the Pennsylvania Supreme Court, approximately 50% of the 6th district encompasses new constituents and divides communities that he has served for years. For example, in the new map, almost the entirety of Berks County will reside in a different district and the Township of Exeter will now be split. This has destroyed any incumbency advantage that Congressman Costello may have once held and the Congressman’s District now contains a majority of voters from the Democratic Party, where it once was a majority Republican district. He has been actively campaigning for reelection, having participated in numerous forums and town-hall meetings, and raising over $1.6 million for his candidacy. Congressman Costello spent approximately $450,000 for his re-election in 2017, of which over $220,000 was spent in efforts to engage with voters he will no longer represent.
To top off the complaint, Republicans cite the tweets by Cohn and Wasserman concluding that the court-ordered map intentionally compensates Democrats for the clustering of their voters in Philadelphia and Pittsburgh.
Bottom line: the PA Supreme Court's map doesn't just undo the GOP's gerrymander. It goes further, actively helping Dems compensate for their natural geographic disadvantage in PA.
— Dave Wasserman (@Redistrict) February 19, 2018
Since some have asked, here are some of the Democratic-friendly choices on the new PA map, along with the more Republican alternatives. All are defensible, but it’s hard to find anything that broke the GOP’s away. (and these are mainly micro-level choices, not big picture) pic.twitter.com/7PZe3WooVE
— Nate Cohn (@Nate_Cohn) February 20, 2018
This lawsuit and the stay application both seek the same substantive relief. But there is a noteworthy procedural distinction. In applying for a stay with the Supreme Court, Republicans are asking to suspend the Pennsylvania court’s decision pending a petition for a writ of certiorari—that is, prevent the ruling from taking effect until the justices decide whether or not they will hear the case. In this lawsuit, Republicans are asking a federal district court to enter an injunction prohibiting Pennsylvania’s Secretary of State, Robert Torres, from implementing the court/Persily’s map.
There is one glaring vulnerability. The Rooker-Feldman doctrine forbids lower federal courts from hearing appeals of state court decisions. If a litigant is unhappy with a state court’s ruling, he or she generally must appeal the decision to a higher court in the state or, assuming those appeals have been exhausted, the U.S. Supreme Court.
Torres and Marks will no doubt respond that, while this lawsuit is couched as a plea for injunctive relief, it is, in reality, just an appeal of the Pennsylvania Supreme Court’s decision, and must therefore be dismissed under Rooker-Feldman.
This post has been updated.
[Featured Image: Pennsylvania Supreme Court]
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