Pennsylvania’s supreme court will hear oral arguments Wednesday in a challenge to that state’s aggressively gerrymandered congressional map — the map is so thoroughly gerrymandered that Republicans won 13 of the state’s 18 Congressional districts in 2012, even though Democrats won a majority of the popular vote, and they’ve held those 13 seats in each subsequent election.
Opponents of this map have good reason to be optimistic that it will go down in court. Among other things, five of the state’s seven supreme court justices are Democrats. Should the state supreme court strike down these maps, moreover, they could potentially create a firewall against gerrymanders in Pennsylvania even if the U.S. Supreme Court takes a hard Trumpian turn.
One of the few bright spots for liberals in the current U.S. Supreme Court term, which mostly looks like it will be a bonanza for conservative interest groups, is that a majority of the Court appeared likely to strike down Wisconsin’s partisan gerrymander in a case that was argued last October. But it’s not a sure thing. Justice Anthony Kennedy, the only member of the Court’s Republican majority who appeared sympathetic to arguments against partisan gerrymanders, has been reluctant to strike such gerrymanders down in the past. And Kennedy or one of the Court’s liberals could retire or die, allowing Donald Trump to pick a replacement who would almost certainly allow gerrymandering to flourish.
Many of the legal arguments in the Pennsylvania suit, League of Women Voters v. Commonwealth of Pennsylvania, will be familiar to lawyers who have followed the handful of federal anti-gerrymandering cases making their way through the courts. The plaintiffs argue that Pennsylvania’s maps discriminate against Democrats and in favor of Republicans, elevate Republican voices and diminish Democratic ones, and retaliate against voters who historically supported Democrats by diminishing those voters’ political power.
But the plaintiffs in League of Women Voters also make an important additional argument — that Pennsylvania’s constitution provides “greater protection for speech and associational rights than the First Amendment.” This argument matters for two reasons.
The first is that, at least until the U.S. Supreme Court decides the Wisconsin case, current federal law is fairly hostile to partisan gerrymandering suits. League of Women Voters offers the state supreme court an opportunity to strike down Pennsylvania’s gerrymandered maps even if the U.S. Supreme Court is unwilling to do so.
Even more importantly, a state supreme court decision striking down Pennsylvania’s maps under the state constitution should be immune from future review, as state courts have the final say on how to interpret their own state’s constitution. That means that, even if Trump fills the U.S. Supreme Court with more hardline conservatives like Neil Gorsuch, Pennsylvania’s gerrymander would likely stay dead.