As the U.S. Supreme Court considers a case that could change how political maps are drawn nationwide, a new lawsuit aimed at reshaping Pennsylvania’s congressional districts before the 2018 midterm election is speeding toward trial.
The federal lawsuit, filed earlier this month, alleges that majority Republicans in the state Legislature drew congressional maps that give the GOP an unconstitutional partisan advantage at election time. Republicans won 13 of 18 congressional seats in the 2014 and 2016 elections despite earning a little over 50 percent of the vote.
Senior Judge Michael Baylson, an appointee of Republican President George W. Bush, has signaled he wants to proceed quickly, scheduling trial for Dec. 5.
Pennsylvania is considered to be a heavily gerrymandered state. Its congressional maps show one of “the most extreme levels of partisan bias” in the nation, according to a 2017 study published by the Brennan Center at New York University School of Law. The Brennan Center opposes gerrymandering, the manipulation of legislative boundaries for the benefit of one political party over the other.
Republicans say their congressional maps are lawful.
Even if the plaintiffs prevail, it’s unclear whether the case and any appeals would be decided in time for the spring primary. The judge in a separate state-court challenge to the GOP’s maps said this month it’s unlikely that case would impact next year’s elections.
The federal lawsuit, filed on behalf of five Pennsylvania voters, makes an unusual legal argument. It cites the Elections Clause of the U.S. Constitution, which empowers state legislatures to set the “times, places and manner” of elections for House and Senate. The suit argues that Republicans who controlled the Pennsylvania Legislature after the 2010 census exceeded their authority under the Elections Clause by packing Democrats into as few districts as possible, concentrating and limiting the impact of their vote.
The GOP redistricting plan “has achieved its intended effect and made more likely the election of Republican candidates to Congress,” the suit said.
The defendants are Democratic Gov. Tom Wolf and state elections officials. It’s not clear how Wolf’s lawyers will respond to the suit or whether they would offer any defense of the Republican maps.
“Governor Wolf has been a strong opponent of gerrymandering, as it is detrimental to the democratic process, and he has been a proponent of reforms that would reduce partisanship in how districts are drawn,” said his spokesman, J.J. Abbott. “We are currently evaluating our approach to this specific case.”
GOP leaders in the House and Senate plan to join the case, and are expected to mount a vigorous defense.
“Congressional maps are done via law, we are integral to the legislative process and we believe the maps are constitutional,” said House Republican spokesman Stephen Miskin.
At least one other lawsuit has cited the Elections Clause to take issue with a congressional map. Republican voters in Maryland say Democrats used an illegal partisan gerrymander following the 2010 census to flip a congressional seat from Republican to Democratic control.
That case is on hold, however, while the Supreme Court considers a gerrymandering challenge from Wisconsin.
The nation’s highest court — which has never thrown out a legislative map because it is too partisan — must decide whether legislative boundaries that seek to maximize one political party’s power can violate the constitutional rights of voters from the other party.
Michael Morley, a Barry University law professor who filed a friend-of-the-court brief defending the Wisconsin GOP’s political maps, took a dim view of the Pennsylvania lawsuit’s prospects.
If the Supreme Court decides to “articulate a test for political gerrymandering, then that standard can be applied to this case,” he said via email.
If the court “instead reaffirms that there are no ‘judicially manageable standards’ for identifying the existence of a political gerrymander, however, I think the plaintiffs here will lose regardless of the fact they mentioned the Elections Clause,” he said.