Pennsylvania Republicans ask Supreme Court to weigh in on gerrymandering decision

The fight goes on.

U.S. Supreme Court Chief Justice John G. Roberts (L-R),  Associate Justice Stephen G. Breyer, and Associate Justice Elena Kagan listen to President Trump's State of the Union address. CREDIT: Win McNamee/Getty Images
U.S. Supreme Court Chief Justice John G. Roberts (L-R), Associate Justice Stephen G. Breyer, and Associate Justice Elena Kagan listen to President Trump's State of the Union address. CREDIT: Win McNamee/Getty Images

Republicans are taking the “unprecedented” step of asking the U.S. Supreme Court to weigh in on a Pennsylvania Supreme Court ruling leading to new congressional maps.

Pennsylvania GOP lawmakers argued on Friday that a 5-2 ruling last month declaring the state’s congressional map to be gerrymandered should be thrown out. Lawyers asked that the order be vacated because Justice David Wecht (D) took a stance opposing gerrymandering in 2015. (In Pennsylvania, justice positions are tied to political parties.)

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As a candidate three years ago, Wecht argued that there are “a million more Democrats” in Pennsylvania, but the state maintains a Republican Statehouse and Senate, with only five Democrats in the U.S. Congress, as opposed to its 13 Republicans. Wecht pointed to gerrymandering as the root of the problem. Republicans say his comments invalidate the January 22 ruling.

“In light of the unconstitutionality of the Court’s orders and the Court’s plain intent to usurp the General Assembly’s constitutionally delegated role of drafting Pennsylvania’s congressional district plan, Senator Scarnati will not be turning over any data identified in the court’s orders,”  Brian Paszamant, the attorney for Senate President Pro Tempore Joseph Scarnati (R), wrote in a letter.

In last week’s ruling, the state’s Supreme Court declared Republican-drawn congressional maps to be “clearly, plainly and palpably” drawn to violate the Pennsylvania constitution. The League of Women Voters had initially challenged the map, calling it “among the most extreme partisan gerrymanders in American history.”

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The January 22 ruling mandates that a new map be sent to the Gov. Tom Wolf (D) by February 9. The governor has until February 15 to accept the replacement; if he fails to, the court itself will redraw the map with input from both Republicans and Democrats. While a March 13 special election will proceed according to the current map, the court ruled that new districts must be in place by May, when midterm election primaries are scheduled.

Republicans are hoping to avoid that outcome. Typically rulings like the Pennsylvania decision can’t be reviewed by the U.S. Supreme Court, but state Republicans argue this is a special circumstance because the state court played lawmaker and attempted to “legislate from the bench” — a violation of the Elections Clause.

Supporters of the ruling strongly disagree.

“Pennsylvania’s Supreme Court has held that the 2011 map ‘clearly, plainly and palpably’ violates Pennsylvania’s Constitution. It would be unprecedented for this Court to interfere with the state court’s determination about its own state’s law,” wrote lawyers for the League of Women Voters opposing the stay.

It’s unclear whether or not Wecht’s comments opposing gerrymandering can be used to throw out the ruling. State judicial candidates are permitted to disclose their views on various issues, but legal ethics experts are unsure how that will translate in the Pennsylvania case.

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The January 22 Pennsylvania ruling is only the latest in a series of gerrymandering decisions addressing skewed maps across the country. Last month, a federal court ordered North Carolina’s map — widely considered to be the most blatant gerrymander in the country — redrawn, but the Supreme Court stayed the ruling pending appeal. Also in January, the high court dismissed a Texas case over gerrymandering while accepting another arguing the state’s congressional map directly discriminates against voters of color, namely Black and Latinx Texans.

Those cases are likely to be impacted by two other pending decisions, from Wisconsin and Maryland respectively. Voting rights activists believe the Wisconsin decision could potentially outlaw partisan gerrymandering. The Supreme Court has never before struck down a state map over partisan gerrymandering but justices have agreed racial gerrymandering is unconstitutional.