On Monday, the Supreme Court turned away an effort to reinstate Pennsylvania’s gerrymandered congressional maps. Although this is not the first time the Court refused to bail out the GOP’s partisan gerrymander in this state, it is the first time it turned away this case since Brett Kavanaugh’s confirmation gave Republicans a solid majority on the Supreme Court.
The case is Turzai v. Brandt.
Last January, the Pennsylvania Supreme Court struck down that state’s congressional maps because they violated the state constitution. The unconstitutional maps were so aggressively gerrymandered that Republicans won 13 of the state’s 18 congressional districts in 2012 even though Democrats won a majority of the popular vote.
The state supreme court’s decision should have been the final word on the case. As a general rule, state supreme courts have the final word on questions of state law, and the Supreme Court of the United States cannot overrule their interpretation of a state constitution. Nevertheless, Pennsylvania Republicans came to the U.S. Supreme Court with a legal theory that is simultaneously outlandish but nevertheless well-crafted to appeal to Republican judges.
The Constitution provides that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” Pennsylvania Republicans argue that this language prevents the state supreme court from tossing out a partisan gerrymander because a court is not a legislature.
The U.S. Supreme Court, however, has repeatedly rejected this reading of the word “legislature.” It did so most recently in its 2015 decision in Arizona State Legislature v. Arizona Independent Redistrict Commission.
More than a century ago, the Supreme Court held that redistricting can be determined by a referendum. Not long thereafter, the Supreme Court held that the governor may veto state redistricting legislation, even though the governor is not a member of a state’s legislative branch. Taken together, these cases establish that when the Constitution assigns the power to draw districts to the “legislature,” it refers to the state’s valid lawmaking process — not necessarily to the body of lawmakers elected by the people.
Nevertheless, Arizona State Legislature was a 5-4 decision, with four Republicans arguing that the word “legislature” can only refer to a state’s legislative branch.
The Court’s fifth Republican, Justice Anthony Kennedy, crossed over to vote with the Court’s four Democrats in Arizona State Legislature. But Kennedy is no longer on the Court, and his replacement, Brett Kavanaugh, is a hardline conservative who appeared to call for revenge against Democrats during his confirmation hearing.
At the very least, however, Kavanaugh will not be able to take his revenge in this particular case. The Court’s decision not to hear Turzai suggests that, at the very least, Republicans don’t have the votes to reinstate one of the nation’s most egregious gerrymanders.