Pa. Supreme Court details violation of voter rights in full opinion striking down congressional map

In a full majority opinion released Wednesday, the Pennsylvania Supreme Court found that the state’s congressional district map deprives voters’ of their right to “free and equal” elections as protected by the Pennsylvania Constitution.

“An election corrupted by extensive, sophisticated gerrymandering and partisan dilution of votes is not ‘free and equal,’” wrote Justice Debra McCloskey Todd.  “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.’”

The opinion comes about two and a half weeks after the majority Democratic court struck down Pennsylvania’s map as an unconstitutional partisan gerrymander in a 5-2 party-line decision. The district boundary lines were drawn in 2011 during a process controlled by Republican lawmakers.

The court concluded that the map was designed to give the GOP an unfair partisan advantage over Democrats and ignores neutral redistricting criteria.

Going forward, the court requires lawmakers to create congressional districts that have equal population, are geographically compact and contiguous, and divide as few communities as possible.

“These neutral criteria provide a “floor” of protection for an individual against the dilution of his or her vote in the creation of such districts,” wrote Todd.

In the opinion, Todd singled out the 7th congressional district in Southeastern Pennsylvania as an especially egregious example of violating neutral redistricting criteria.

“Indeed, it is difficult to imagine how a district as Rorschachian and sprawling, which is contiguous in two locations only by virtue of a medical facility and a seafood/steakhouse, respectively, might plausibly be referred to as ‘compact,’” wrote Todd.

The court accepted that other factors “such as the preservation of prior district lines, protection of incumbents, or the maintenance of the political balance” have historically been used during redistricting.

“However, we view these factors to be wholly subordinate to the neutral criteria,” wrote Todd.

Plaintiffs’ lawyers in the case hailed the decision as historic.

“Pennsylvania has blazed a trail for other state courts to strike down partisan gerrymandered maps under state constitutions,” said Mimi McKenzie, Legal Director of the Public Interest Law Center in a written statement. “Instead of serving as a punch line because of cartoon-shaped districts, Pennsylvania will now serve as a model.”

In making its assessment, the court looked to the standards set by the state constitution to draw state legislative boundaries as a model for determining when U.S. congressional districts are constitutional.

Although the court acknowledged that federal courts have not been able to decide on a manageable standard for when partisan gerrymandering crosses a line and becomes unconstitutional under federal law, the opinion found that’s not a barrier for state law.

“The people of this Commonwealth should never lose sight of the fact that, in its protection of essential rights, our founding document is the ancestor, not the offspring, of the federal Constitution,” wrote Todd.

In his dissenting opinion, Chief Justice Thomas Saylor disputed the notion that voters’ rights were violated by the 2011 map and criticized the majority for not more directly addressing what he sees as the crux of the issue.

“Given the political character of redistricting, the pervading question relating to partisan considerations, with which courts have had great difficulty, is ‘how much is too much?’” wrote Saylor.

The full opinion upholds the court’s Jan. 22 order, which dictates a tight schedule to have a new map in place in time for the congressional primary elections upcoming in May.

The court ordered the state legislature to pass a new map by Friday and have it approved Governor Tom Wolf by Feb. 15.  If the Legislature and the Governor can’t come to an agreement on a new map, the court will take over the process with an appointed expert.

“Our Court possesses broad authority to craft meaningful remedies when required….” wrote Justice Todd. “Our narrowly crafted contingency, which afforded all parties and Interveners a full and fair opportunity to submit proposed remedial plans for our consideration, was well within our judicial authority.”

In her dissenting opinion, Justice Sallie Updyke Mundy disagreed with the majority’s logic and with the court-ordered remedy.

“…I am troubled by the Majority’s decision to strike down the 2011 congressional map on the eve of the 2018 midterm election. Particularly its disregard for precedent which supports deferring redistricting until after the 2018 election.”

Justice Max Baer, a Democrat who agreed that the map violates the constitution, also dissented on this point.

“…the Court’s remedy threatens the separation of powers by failing to allow our sister branches sufficient time to legislate a new congressional districting map, potentially impinges upon the due process rights of the parties at bar as well as other interested parties, and foments unnecessary confusion in the current election cycle,” wrote Baer.

Republican leaders, who were legislative defendants in the case, have criticized the court for overstepping with its decision.

“The remedy of the court drawing their own maps is equally unconstitutional,” said House Majority Whip Bryan Cutler (R-Lancaster County)

Drew Crompton, chief counsel for Senate Republicans, said in a written statement, that they would continue to review the opinions and determine if there is a further viable legal action to pursue in federal court.

Earlier this week, U.S. Supreme Court Justice Samuel Alito denied an emergency petition by top Republicans to stay the state court’s decision.

Crompton says there are still questions that remain about constitutionality and the court’s authority to draw the new map. He also criticized the court for releasing its full opinion only two days before the impending deadline for lawmakers.

“Because of the reckless delay of this opinion it will be very difficult to have a piece of legislation completed before Friday,” stated Crompton.  “I would never have fathomed that the Court would give the General Assembly 18 days to finish its assignment all the while holding its opinion for 16 of them.”

In anticipation of Friday’s deadline, lawmakers have begun the preliminary procedures that could pave the way for a new map.