In an appeal to the nation’s high court, Statehouse Republicans are attempting to circumvent the Pennsylvania Supreme Court’s decision to strike down the state’s congressional maps as an unconstitutional partisan gerrymander.
Leaders of the state House and Senate —Senate President Pro Tempore Joe Scarnati and House Speaker Mike Turzai — have filed an appeal with the U.S. Supreme Court to halt implementation of the replacement congressional map the state court issued this week.
This is the third time in recent months they’ve made such an appeal in a gerrymandering case.
They first attempted to stay a similar federal court case, but that effort was denied. A three-judge panel in federal court subsequently upheld the map as partisan, but constitutional.
In the fallout of the state Supreme Court’s Jan. 22 decision striking down the map, Republicans filed for a stay on the grounds the legislature couldn’t agree on new congressional maps within the state court’s tight timeline.
That application was denied by the U.S. Supreme Court Justice Samuel Alito without explanation.
But Turzai believes Republican leaders have a stronger case now that the state court has issued its replacement map,
“This is a usurpation of power by the Pennsylvania state Supreme Court,” he said. “The whole goal here is to stop the president’s agenda and to make sure that there are more Democrats in congress than Republicans. This is a completely partisan effort.”
The court had initially allowed lawmakers a few weeks to redraw the maps and reach consensus with Gov. Tom Wolf, a Democrat. But that deadline was blown, with many lawmakers complaining the timeline was unworkable .
As per their original decision, the justices then issued new maps on their own, relying on the work of Stanford Law Professor Nathan Persily, a redistricting expert who has previous experience redrawing maps in other states.
Republicans acknowledge the now-unconstitutional map—drawn in 2011—was gerrymandered to favor their own party. But they contend that doesn’t matter, because redistricting is a fundamentally political process.
The key argument in their stay application to the U.S. Supreme Court is that the state court can’t strike down any congressional map —no matter what it looks like — because they believe the Pennsylvania Constitution doesn’t provide criteria for it to do so.
“The Pennsylvania Supreme Court legislated criteria the Pennsylvania General Assembly must satisfy when drawing a congressional districting plan, such as contiguity, compactness, equal population, limiting subdivision splits, and now proportional representation of political parties,” they wrote.
“But no Pennsylvania legislative process…adopted or ratified those criteria. Rather, the Pennsylvania Supreme Court wove them from whole cloth.”
Republicans also argue that the court’s actions violate the U.S. Constitution’s Elections Clause, which gives state legislatures authority over drawing congressional maps.
And they allege the court-drawn map violates its own standards of compactness and contiguity.
State Democrats and a number of Republicans have differed with the case that Turzai and Scarnati are making.
Senate GOP Leader Jake Corman, for instance, didn’t question the court’s right to rule the old map unconstitutional.
“We could have had a bipartisan approach,” he said last week. “The Republican leaders of both the House and Senate, and the governor standing here with you to lay out this process, which I think would have given confidence to the people of Pennsylvania that this was being done in a fair way.”
In their original decision, the court’s Democratic justices argued they can invalidate congressional maps under Article I, Section 5 of the state constitution.
It states, “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.”
Partisan gerrymandering, the majority opinion said, “dilutes the votes of those who in prior elections voted for the party not in power to give the party in power a lasting electoral advantage…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.”
The justices noted that the state Supreme Court has never before ruled that a redistricting plan violates the Free and Equal Elections Clause. But they concluded that “we have never precluded such a claim in our jurisprudence.”
Barring federal intervention, the new congressional map is slated to be used for the May 15th primaries. Analysts expect the new congressional boundaries will allow Democrats to win additional seats and aide the party’s national effort to retake the House of Representatives.