The (arcane, unlikely) doomsday redistricting law looming over Pennsylvania’s map impasse

The dome of the Pennsylvania Capitol is visible in Harrisburg.

The dome of the Pennsylvania Capitol is visible in Harrisburg. (Matt Rourke/AP Photo)

Picture this.

It’s November 2022. Pennsylvania is about to hold two hotly contested, hugely expensive elections for governor and U.S. Senate. But those aren’t the only statewide races on the ballot: there are also 17 — that’s correct, 17 — congressional seats up for grabs that every voter in the commonwealth will be able to weigh in on, no matter where in the state they or the candidate live.

It’s a vision of election overload that would undercut Pennsylvania’s proportional, local representation in Washington, D.C.

And it’s based on a little-known 1941 federal law that deals with what happens when a state can’t meet its obligation to draw a new congressional map, using updated census numbers, in time for an election.

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It’s a topic du jour in Harrisburg right now because lawmakers are on the verge of an impasse over their once-a-decade responsibility to redraw Pennsylvania’s congressional map, and some lawmakers are beginning to trot out what-ifs as the deadlines loom closer.

Rep. Seth Grove (R-York), who leads the House committee in charge of redistricting, has been one of its primary progenitors — using the existence of the old federal law, and the potential chaos of so many at-large elections, in an apparent effort to draw Gov. Tom Wolf, a Democrat, into public negotiations on a GOP-selected map proposal the governor has already said he doesn’t support.

“The federal law clearly articulates, states which do not have a map in place and lose a seat shall have all their congressional delegation run statewide using the same nomination process as the governor,” Grove said at a recent press conference. “If Governor Wolf fails to agree to a congressional map with the General Assembly, this is the reality voters and congressional candidates will have to face.”

At first glance, Pennsylvania seems to be headed for the exact situation this law describes.

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The commonwealth lost a congressional seat in the 2020 census, so lawmakers are supposed to draw a new map with 17 seats, instead of the 18 it has had for the last decade, in time for 2022 elections. The state legislature, long controlled by Republicans, is supposed to initiate this redrawing, and then Wolf is supposed to sign off on a plan. So far, they haven’t come anywhere close to an agreement.

On Wednesday, the House passed a map plan that Wolf has signaled he’d veto if it were to reach his desk.

But, even if the loggerheads continue, the prospect of an at-large congressional contest remains unlikely.

The array of federal laws that apply to redistricting, and the legal precedents that govern the process, are much more complicated than Grove — who didn’t respond to a request for an interview — is making them out to be.

That set of 1941 contingencies for congressional map impasses was undermined in 1967 by a new federal law that said representatives must, in every election going forward, “be elected only from districts.” In other words: no at-large elections.

The Congressional Research Service wrote about these laws at length in a 2003 brief, noting that they’re unusual because while the 1967 law seems to explicitly contradict the 1941 one, both have remained on the books.

Researchers wrote that while the 1941 at-large law could still potentially be invoked, it can also be argued that the 1967 update makes it a “dead letter.”

“Further buttressing the dead letter theory,” the service added, “is the 40-year history of active court involvement in redistricting.”

In 1941, when the at-large contingency was introduced, “courts were constrained by years of precedent limiting their entrance into the ‘political thicket’ of redistricting,” the CRS writers noted. “After the Supreme Court established the ‘one person, one vote’ principle beginning with its 1962 landmark decision in Baker v. Carr, and Congress passed the Voting Rights Act of 1965, courts have intervened numerous times in the state redistricting process.”

The cases can vary, but in general they’re kicked off when groups or individuals predicting an impasse file lawsuits to request the court intercede on the grounds that not doing so could undermine voting rights.

At least a few of those court interventions have happened in Pennsylvania.

The last time Pennsylvania lawmakers deadlocked on a congressional map following a new U.S. Census was 1992, the last full redistricting period in which there was divided control of state government. Democrats held the governorship and controlled the state House, and there was a Republican majority in the Senate.

The commonwealth had lost two congressional seats that year, which means, as in the current round of redistricting, at-large elections could have been invoked, per the 1941 law. They weren’t, though. The Pennsylvania Supreme Court intervened, selecting a judge to pick a map that the political parties had submitted.

A similar dynamic unfolded in 2018. After the high court tossed the 2011 map as a “partisan gerrymander,” lawmakers and Gov. Wolf failed to compromise and the court’s special master drew the lines that exist today.

This year, litigation requesting the courts to take over the redistricting process is making its way through Pennsylvania’s appellate courts.

The Commonwealth Court has given lawmakers until Jan. 30 to enact a plan, or it will select a plan submitted by a range of parties to the case, both partisan and not. It’s also possible the Supreme Court could take over the case before the end of the month. Justices declined to intervene earlier this week, but said they still might later in the month.

Justice David Wecht disagreed with that decision. He believes it’s time for the court to step in,  and in his written dissent acknowledged the existence of the federal “backstop” of at-large elections.

In Wecht’s opinion, it would never happen.

Pennsylvania, he wrote, “has not resorted to this method since that federal law was adopted. In fact, Pennsylvania has not elected the entirety of its congressional delegation using at-large districts since the eighteenth century.”

Specifically, Pennsylvania used statewide elections in the First U.S. Congress, in 1788. Two years later, the commonwealth adopted districts. It returned to a statewide slate in 1792, but that was the last time.

Wecht noted, there are practical voting rights reasons for this phase-out.

“To risk defaulting to at-large elections now would raise significant equal protection and Voting Rights Act concerns given the dilutive effect that exclusively statewide congressional elections would have upon minority voters, particularly in Philadelphia County,” he wrote.

The CRS writers said ultimately, the question of whether at-large congressional elections could ever happen in the modern era is “unsettled.”

On one hand, courts now intervene whenever states reach impasses and can’t draw new maps through normal procedures. On the other hand, Congress never actually repealed that 1941 law, so it could “still serve as a useful insurance policy.”

For 2022 election purposes in Pennsylvania though, it’s an insurance policy that is very, very unlikely to ever be used.

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