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The Pennsylvania GOP’s embarrassing, last-ditch attempt to save their gerrymandered maps

Republicans drew illegal maps. Now they want Neil Gorsuch to bail them out.

WASHINGTON, DC - OCTOBER 03: Demonstrators gather outside of The United States Supreme Court during an oral arguments in Gill v. Whitford to call for an end to partisan gerrymandering on October 3, 2017 in Washington, DC. (Photo by Olivier Douliery/Getty Images)
WASHINGTON, DC - OCTOBER 03: Demonstrators gather outside of The United States Supreme Court during an oral arguments in Gill v. Whitford to call for an end to partisan gerrymandering on October 3, 2017 in Washington, DC. (Photo by Olivier Douliery/Getty Images)

There is a famous early Supreme Court case that nearly every law student reads near the beginning of their legal education. Marbury v. Madison established as far back as 1803 that one of the judiciary’s core functions is to determine whether acts of the legislature can be squared with constitutional requirements.

“It is emphatically the province and duty of the judicial department to say what the law is,” Chief Justice John Marshall wrote in one of the most oft quoted passages in American law.

Nevertheless, in a Supreme Court application seeking to preserve Pennsylvania gerrymandered maps for at least one more election, a pair of Republican state legislative leaders ask the Court to hold that it is not the province and duty of the judicial department to say what the law is.

Moreover, the Republican leaders, Senate President pro tempore Joseph Scarnati and House Speaker Mike Turzai, ask the Court to abandon another core principle of American law. On Monday, the Pennsylvania Supreme Court held that the state’s congressional maps violate the state constitution. As the highest court in Pennsylvania, the state supreme court is the final authority on questions of state law. The Supreme Court of the United States should be powerless to disturb this state court decision that relied solely on state law.

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Pennsylvania’s map is so aggressively gerrymandered that Republicans won 13 of the state’s 18 congressional districts in 2012, a year when Democrats won the popular vote, and the GOP has held those 13 seats ever since.

The crux of the Republican leaders’ argument is that the state supreme court is not allowed to weigh in on questions of gerrymandering because the court is a court and not a legislature. They root this argument in Article I, Sec. 4 of the Constitution, which provides that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.”

But there is one big problem with this argument: the Supreme Court has rejected it over and over again, most recently in its 2015 decision in Arizona State Legislature v. Arizona Independent Redistrict Commission.

Admittedly, four justices in the Arizona case did buy an argument very similar to the one the Republican leaders are now advancing. That case involved an independent redistrict commission tasked with drawing Arizona’s districts. The four most conservative members of the Court would have invalidated that commission, on the theory that the commission is not a legislature and was not created by the legislature.

It would be a serious blow to the Supreme Court’s legitimacy if the justices took the Pennsylvania GOP up on this invitation.

But four justices are not a majority, and the remainder of the Court joined Justice Ruth Bader Ginsburg’s opinion upholding the redistricting commission. Citing a trio of past cases which reached similar results, Justice Ginsburg explained that the word “legislature” in the Constitution refers not just to the elected representative body which typically makes state laws, but also to the broader “power that makes laws.” Thus, a state ballot initiative could lawfully create a commission which draws district lines.

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The Pennsylvania Republican leaders, in other words, are asking the Supreme Court to reconsider a very recently decided case. They are doing so, moreover, at a time when the Supreme Court is controlled by Republicans, in order to save Republican members of Congress from having to run in fairly drawn districts during a difficult election cycle for the GOP. It would be a serious blow to the Supreme Court’s legitimacy if the justices took the Pennsylvania GOP up on this invitation.

One more factor is worth mentioning. The Arizona case, at least, involved a fairly novel kind of policy making — a commission independent of the legislature created by the ballot initiative. The Pennsylvania case, by contrast, involves the most ordinary kind of legal development. The state legislature passed a law — in this case, a law creating gerrymandered maps — a court reviewed that law and deemed it inconsistent with the state constitution.

Were the Supreme Court to call that court decision into question, it would raise serious doubts about whether any court, including the Supreme Court of the United States itself, is allowed to review state election laws. After all, the Supreme Court is not a legislature.

“It is emphatically the province and duty of the judicial department to say what the law is.” That’s what the Pennsylvania Supreme Court did in this case. We will find out soon whether the Supreme Court of the United States is willing to water down Marbury in a way that would greatly benefit the Republican Party.