A panel of federal judges Wednesday effectively upheld Pennsylvania's often-criticized congressional district map, declining to take up a novel challenge that sought to have it declared unconstitutional as gerrymandered to favor the party in power.
In a 2-1 decision Wednesday, the judges said that specific challenge was not for them to decide.
Plaintiffs in Agre v. Wolf, led by a Democratic ward leader from Philadelphia, had hoped to use the Elections Clause of the U.S. Constitution to argue that any amount of partisanship in drawing the state's congressional maps was illegal.
The congressional boundaries in question were drawn by the Republican-controlled legislature in 2011 after the 2010 census.
"Although there may be a case in which a political gerrymandering claim may successfully be brought under the Elections Clause, this is not such a case," wrote Judge Patty Shwartz of the U.S. Court of Appeals for the Third Circuit.
"The structural change plaintiffs seek must come from the political process itself, not the courts," concluded D. Brooks Smith, chief judge of the Third Circuit.
Lawyers for the plaintiffs said they would appeal the decision to the U.S. Supreme Court. It is one of several cases nationwide involving redistricting.
The day before the judges' ruling in Philadelphia, a panel of federal judges in North Carolina ruled that state's congressional map unconstitutional and ordered the legislature to redraw it this month. The judges said Republicans had drawn it to their advantage. It was the first time federal judges had ruled that a congressional map was unconstitutional because of gerrymandering.
U.S. Supreme Court justices have said they will render a decision in gerrymandering cases out of Maryland and Wisconsin in the coming months.
Also in Pennsylvania, a group of 18 Democratic voters filed a state gerrymandering lawsuit against state officials in June. That case is the one to watch, said Michael Li, a gerrymandering expert at the Brennan Center for Justice at New York University.
"I wouldn't read too much into this [federal] decision," Li said. "I don't think it says much about whether the court will find a problem" in other cases.
The case rejected Wednesday had legal theories that differ from those in the state cases and the other federal case in Pennsylvania, which involves claims under the First Amendment and the Equal Protection Clause, Li said.
Both Steve Miskin, spokesman for the House Republicans, and Senate President Pro Tempore Joe Scarnati used Wednesday's decision to say that the state's congressional map is constitutional.
"For the past several months, plaintiffs have made dozens of strained legal arguments against the map, and the majority decision once again invalidated the plaintiffs' position," Scarnati said in a statement. He renewed his call for plaintiffs to "abandon their costly legal actions and allow the legislature's examination of reforms to move forward."
Miskin said the maps had "passed with bipartisan votes in the House."
Alice Ballard, attorney for the plaintiffs, pointed to the different outcomes in the North Carolina and Pennsylvania federal gerrymandering cases to say the issue is far from resolved. "Only the Supreme Court can make the final decision," she said.
In his dissent, Senior District Judge Michael Baylson said the congressional map should be redrawn, calling gerrymandering a "major public policy issue."
"Plaintiffs themselves described being alienated from the political process. … In my opinion, gerrymandering will only cause voter turnout to decline even further," Baylson wrote.
Also Wednesday, Lt. Gov. Mike Stack filed a brief with the state Supreme Court, saying he agreed with the plaintiffs in the state case that the map is unconstitutional and that a new map should replace it before the 2018 midterm elections. He proposed his own version, which consists of less-fragmented districts.
He said his map was "fair, allows voters to truly select their congressman, and allows communities with similar regional interests to have representation from a single member of Congress."
Stack, who began his reelection campaign last November, is a defendant in the gerrymandering lawsuit filed by the 18 voters in June. It also names Gov. Wolf, members of the General Assembly and other state officials.
The justices on the state's high court — five Democrats and two Republicans — have scheduled oral arguments on the constitutionality of the maps for next Wednesday.
Last month, a Commonwealth Court judge recommended that the state Supreme Court uphold the map. Judge P. Kevin Brobson ruled that politics played a role in creating the map and that the legislature could have drawn more neutral ones. But some degree of partisanship is acceptable in redistricting, he said.
The plaintiffs "have failed to meet their burden of proving that the 2011 plan, as a piece of legislation, clearly, plainly, and palpably violates the Pennsylvania Constitution," Brobson said in his recommendation on Dec. 29. He presided over a week-long trial focusing on the constitutionality of the map.