The Pennsylvania Supreme Court offered a lengthy and long-awaited explanation on Wednesday of its decision to strike down the state’s congressional map, saying the districts violated a state constitutional guarantee of “free and equal” elections.
On Jan. 22, the state Supreme Court struck down the congressional map and instructed lawmakers and the governor to agree on new district lines by Feb. 15, saying its full opinion would follow. Justice Debra McCloskey Todd (D) offered that opinion in 139 pages on Wednesday and said the plan violated Article I, Section 5 of the state’s constitution, which says “elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” Todd noted the protection, as well as the entire Pennsylvania Constitution, was older than the U.S. Constitution.
Todd wrote that the congressional map violated the provision because it diluted the votes of Democrats, thus making them unequal. Since redrawing the state’s congressional map in 2011, Republicans have consistently won 13 of the state’s 18 congressional seats, even though Democrats outpace Republicans statewide in party registrations.
“By placing voters preferring one party’s candidates in districts where their votes are wasted on candidates likely to lose (cracking), or by placing such voters in districts where their votes are cast for candidates destined to win (packing), the non-favored party’s votes are diluted. It is axiomatic that a diluted vote is not an equal vote, as all voters do not have an equal opportunity to translate their votes into representation,” she wrote.
“An election corrupted by extensive, sophisticated gerrymandering and partisan dilution of votes is not ‘free and equal.’ In such circumstances, a ‘power, civil or military,’ to wit, the General Assembly, has in fact “interfere[d] to prevent the free exercise of the right of suffrage,” she added.
Republicans charged with redrawing the districts have been complaining that the court offered them too short a time period with little guidance on how to judge if a new map was constitutional. The court offered its criteria on Wednesday, saying that districts should, at a minimum, be compact and contiguous, nearly equal in population and drawn so as to not unnecessarily divide counties, cities, towns and wards. The state constitution already says those criteria must be used when lawmakers draw state legislative districts. When lawmakers “subordinate” those criteria to partisan concerns, the redistricting is unconstitutional.
Todd did acknowledge, however, that it was possible for lawmakers to draw a map that complied with those minimum criteria but also gave one party a political advantage. She declined to say what the court should do in such a case.
In a dissenting opinion, Justice Sallie Updyke Mundy (R) took issue with the standard the majority offered, saying it added only more confusion on the eve of the state’s midterm elections.
“The Majority admits that it is possible for the General Assembly to draw a map that fully complies with the Majority’s ‘neutral criteria’ but still ‘operate[s] to unfairly dilute the power of a particular group’s vote for a congressional representative,’” Mundy wrote. “This undermines the conclusion that there is a clear, plain, and palpable constitutional violation in this case.”
Chief Justice Thomas Saylor (R) wrote another dissenting opinion in which he argued the Supreme Court should have waited for more guidance on acceptable limits on redistricting from the U.S. Supreme Court, which has never set limits on how far the practice can go but could do so for the first time this year. He accused the majority of creating a new standard to evaluate congressional maps that was not rooted in the state’s constitution.
In a separate opinion, Justice Max Baer (D) agreed that the congressional map violated the state’s constitution but joined his two Republican colleagues in expressing concern that the court was creating new redistricting standards and illegally imposing them onto the legislature.
“It is axiomatic that a diluted vote is not an equal vote, as all voters do not have an equal opportunity to translate their votes into representation.”
Republican lawmakers have dragged their feet on working on a new map to meet the court-imposed deadline. They launched a long-shot appeal to the U.S. Supreme Court, which the federal court rejected. Senate President Joe Scarnati (R) refused to turn over political data the court requested to help it draw a new map. They have unsuccessfully tried to get a Democrat on the court disqualified from the case because he expressed anti-gerrymandering sentiments as a candidate. A Republican state representative is calling for the impeachment of the five Democrats on the court who voted to strike down the map.
If Republican lawmakers and Gov. Tom Wolf (D) can’t agree on a plan by Feb. 15, the court is going to draw its own congressional district map. Facing repeated defeats in courts, Republicans have started to come around to working on a new map, realizing that they may be able to get a more favorable one in place themselves than if they cede the task to the court.
The ruling in the case could send a signal to advocates in other states to bring similar suits in state courts. In a footnote, Todd pointed to several state constitutions that had election protections similar to the Pennsylvania one used as the basis for the state Supreme Court’s ruling.
The Pennsylvania Supreme Court’s seven justices, who are elected to 10-year terms, can run on party tickets. Currently there are five Democrats and two Republicans on the court.