Pennsylvania's congressional map, as adopted in 2011, violates the state constitution's guarantee that "elections shall be free and equal," the state Supreme Court said Wednesday in an opinion explaining its gerrymandering order overturning the map more than two weeks ago.
"An election corrupted by extensive, sophisticated gerrymandering and partisan dilution of votes is not 'free and equal,' " Justice Debra McCloskey Todd wrote for the majority. "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 came just two days before the deadline for lawmakers to pass a new congressional district map and send it to Gov. Wolf for approval, after the high court declared Pennsylvania's congressional map an unconstitutional partisan gerrymander, drawn to benefit Republicans at Democrats' expense.
In the opinion, Todd noted a variety of factors that have traditionally played a role in redistricting, such as preserving some previous district lines, protecting incumbent lawmakers, and maintaining a state's political balance.
But those factors should be subordinate to politically neutral criteria and the fact that "gerrymandering for unfair partisan political advantage" would violate the state Constitution.
Drew Crompton, chief of staff to Senate President Pro Tempore Joe Scarnati (R., Jefferson) and the Senate's top lawyer, said Wednesday that the court's opinion provided as much clarity as it did raise new questions, namely, how much politics is too much when drawing congressional maps. The high court, he said, did not address that.
He also said he found it problematic that the Supreme Court is placing itself in a position to effectively usurp the role of the legislature in determining congressional districts.
"It's saying, Apply these standards when you draw new maps, but we reserve the right to throw them out if we don't like them," said Crompton.
He said it would be "very difficult" to pass legislation with new maps by Friday – the court-imposed deadline for doing so. Among the options beings considered, he said, was having Scarnati and House Speaker Mike Turzai (R., Allegheny) submitting a map to Wolf – one that would not go through the normal legislative process.
Crompton said Senate Republicans are also not ruling out further legal action.
"I think there are legitimate federal questions," he said.
In naming the neutral criteria, the opinion creates a standard that for the first time describes how congressional maps should be drawn according to neutral principles in Pennsylvania, said Michael Li, a redistricting expert at the Brennan Center for Justice at New York University.
"What the court has said is it has a standard that says you have to follow these traditional rules, and that's a great starting point. And if you don't follow these traditional rules, and you don't have an explanation for it, then you're out of bounds," he said.
"Now, going forward when they redraw the map, when they redistrict in 2021, there are some clear guideposts that they will have to look to," he said. "There are some nice, objective guideposts that people have now, and it's very clear that you can't go to town and do things like the Pennsylvania Seventh [District] anymore."
Much of the opinion is devoted to summarizing past case law, the current congressional map, the history of this case, and the testimony of expert witnesses. Another portion traces Pennsylvania's history, at one point quoting a delegate to the 1873 Constitutional Convention.
After describing methods of diluting votes in a gerrymandered map, Todd writes: "This is the antithesis of a healthy representative democracy. Indeed, for our form of government to operate as intended, each and every Pennsylvania voter must have the same free and equal opportunity to select his or her representatives."
By using the state constitution's "free and equal" clause — and distinguishing it from the federal constitution's Equal Protection Clause — the opinion shows that state constitutions can be broader in their protections, providing a new avenue for fighting partisan gerrymandering, said Joshua A. Douglas, a law professor at the University of Kentucky and expert on election law.
"This opinion is hugely important for demonstrating the power of state constitutions to protect voting rights when the federal courts won't under the federal constitution," he said, adding that 26 states' constitutions include "free and equal" or "free and open" elections clauses.
Justices Christine Donohue, Kevin M. Dougherty, and David N. Wecht joined the opinion.
In his dissent, Chief Justice Thomas G. Saylor wrote that the court should have waited for more guidance from the U.S. Supreme Court, which has taken up the question of partisan gerrymandering this term; should better recognize the inherently political nature of redistricting; and should not have applied the state constitution's requirements for state legislative maps to the congressional one.
Justice Sallie Updyke Mundy wrote in her dissent that the majority opinion is inconsistent with previous case law.
Both justices also voiced concern about the court's order that the congressional map be redrawn in less than three weeks.
"I am troubled by the majority's decision to strike down the 2011 congressional map on the eve of the 2018 midterm election," Mundy wrote.
The seventh justice, Max Baer, joined the majority in finding the current map unconstitutional but disagreed with the remedy, saying it "threatens the separation of powers," potentially steps on the parties' due process rights, and creates unnecessary confusion.
On Jan. 22 the Pennsylvania Supreme Court ordered lawmakers to redraw the map by this Friday, giving Wolf, a Democrat, until Feb. 15 to approve it. If that does not happen, the court said it would adopt its own map. It has appointed a special adviser, well-known redistricting expert and Stanford University law professor Nathaniel Persily, to help it do so.
The court's ruling sparked a political and legal fight that has grown increasingly nasty, including a request that the U.S. Supreme Court step in — which Justice Samuel A. Alito Jr. denied. Republican lawmakers have also attacked a state Supreme Court justice as biased in an attempt to get him disqualified; the justice, Wecht, said in court filings that he doesn't feel he needs to recuse himself. In the Senate, Scarnati has said he will refuse to comply with court orders to share data intended to help the justices draw a map, and a rank-and-file Republican lawmaker is seeking cosponsors to sign onto an attempt to impeach the court's Democratic justices.
Through it all, Republicans have criticized the state Supreme Court for not releasing its opinion sooner. Without the opinion explaining why the map is unconstitutional — and thus providing some guidance on what a constitutional map should look like — the lawmakers could not make substantive progress on a new map out of fear it will again be deemed illegal, they said.
It's unclear whether the Republican-controlled legislature will attempt to pass a map in time for the Friday deadline. An empty bill, into which a map could eventually be added, is sitting in the House. The House canceled its session Wednesday because of bad weather, though technically representatives remain "on call" and could be asked to return to the Capitol.
Experts have said the order likely was released immediately — before an opinion was ready — because of the severe time crunch: With primary election deadlines looming, the justices did not have the luxury of waiting to issue its order. But the opinion will be looked to in drawing future maps and for future lawsuits, so "they want to do their homework adequately," said Justin Levitt, a professor and associate dean at Loyola Law School in Los Angeles.
The opinion was released late Wednesday, 16 days after the order was issued and two days before lawmakers' deadline.
In their initial order, the court ruled that the current map, adopted in 2011, was "clearly, plainly, and palpably" in violation of the state constitution and blocked its use from the primary elections in May. In drawing a new map, the order said, districts should be compact and contiguous, as equal in population as possible, and split as few counties and towns as possible.