Pennsylvania Congressional District Map Is Ruled Unconstitutional

WASHINGTON — Pennsylvania’s congressional district map is a partisan gerrymander that “clearly, plainly and palpably” violates the state’s constitution, the state Supreme Court said Monday, adding to a string of court decisions striking down political maps that unduly favor one political party.

The court banned the current map of the state’s 18 House districts from being used in this year’s primary and general elections, and ordered that a new map be submitted to the court by Feb. 15. But the state’s Republican-dominated Legislature, which approved the current map in 2011, has already said it would try to overturn such a decision in federal court. That would set up another legal battle over gerrymanders in a year already filled with them.

But an appeal to the federal courts would very likely fail, election experts said, because decisions based solely on interpretations of state law — as this one appears to be — are generally beyond the reach of federal judges.

For the same reason, the state court’s decision has no direct bearing on a string of challenges to partisan gerrymanders that are already moving through the federal court system. Earlier this month, in fact, a divided panel of three federal judges left intact the same Pennsylvania House map that the state court threw out Monday.

If the state court ruling stands and the map is redrawn, the consequences could be serious for Republicans, who are already battling national political headwinds in their effort to maintain control of the House in the midterm elections this fall.

Pennsylvania is a swing state that has backed governors, senators and presidential candidates from both political parties in the last two election cycles. But as the state’s map is now drawn, Republicans control 13 of the state’s 18 House seats. Outside experts say that a nonpartisan district map could move as many as three of those seats over to the Democratic column.

The Pennsylvania ruling could also add some momentum to a clear movement in lower federal courts toward reining in the most severe partisan gerrymanders. Three-judge federal panels have already invalidated the district maps for the Wisconsin state Assembly and North Carolina’s congressional map, saying they are unconstitutionally tilted toward one party — in both cases, the Republicans. Each panel’s ruling broke new ground.

The U.S. Supreme Court has stayed those decisions while it considers the Wisconsin case, and one from Maryland challenging a congressional map drawn by Democrats that eliminated a longtime Republican district.

So unless the Supreme Court intervenes in the Pennsylvania case as well, the state may be the only one where a new court-ordered map will take effect in time for the midterm elections. Primaries for the state’s congressional representatives are scheduled for May 15.

In Monday’s decision, the Pennsylvania Supreme Court split along party lines in striking down the state’s House map, with the court’s five Democrats in the majority and its two Republican judges in dissent. The majority did not lay out its reasons Monday, saying they will be explained in a later written opinion.

The original complaint, filed in June, relied heavily on an argument that the map violated the state constitution’s freedom-of-speech guarantees, which are broader than those in the federal Constitution.

Gerrymander opponents have argued in both state and federal lawsuits that partisan redistricting violates the First Amendment by punishing one party’s voters for speaking with their votes in opposition to the other party. Among the evidence presented by the plaintiffs’ lawyers in the suit, originally brought by the League of Women Voters of Pennsylvania, was that as many as five seats held by Republicans would have been won by Democrats if “neutral” maps had been used, meaning maps that did not contort districts and divide communities.

Pennsylvania is considered one of the most gerrymandered states in the nation, with congressional districts twisted into fanciful shapes, including one that has been described as looking like “Goofy kicking Donald Duck.”

The court order Monday required the Legislature to submit a new map for the governor’s approval or veto by Feb. 9. If new boundaries are not approved by Feb. 15, the court said, it would decide on a map itself, relying in part on suggestions from parties to the lawsuit. The state court appeared to be less divided on the central issue of the case than the 5-2 party-line split might suggest. Chief Justice Thomas G. Saylor, a Republican, acknowledged in his dissent that recent federal court rulings “raise substantial concerns as to the constitutional viability of Pennsylvania’s current congressional districts,” but he argued that the court should have awaited the federal Supreme Court’s decision in the Wisconsin gerrymander case, expected this spring, before making its own ruling.

“My position at this juncture is only that I would not presently upset those districts,” he wrote.

A second dissent, by Justice Sallie Updyke Mundy, endorsed Saylor’s views, and added a warning that involving the state Supreme Court in redrawing the map could raise federal constitutional questions.

Republicans in the state Senate said they would ask the state Supreme Court to stay its order for new maps, and made it clear that they would try to take the matter to a federal court. But legal experts said their chances appeared slim at best, because federal courts generally have no authority to review state court decisions that exclusively involve state law. The state Supreme Court took pains to say that the state constitution was the “sole basis” for its ruling requiring a new map.

The most likely argument for federal review, election scholars said, is that the court order violated the federal Constitution’s elections clause, which delegates authority over elections to state legislatures. The Supreme Court entertained a similar argument in Bush v. Gore, the case that determined the outcome of the 2000 presidential election. But the court later narrowly rejected the idea that state legislatures have sole authority over elections in a 2015 decision that, fittingly, dealt with redistricting in Arizona.

“This case was designed from the get-go to get to the Pennsylvania Supreme Court and no further,” said Justin Levitt, an election-law scholar and associate dean at Loyola Law School in Los Angeles. “There are one or two exceedingly long-shot ways that Republicans might attempt to get this in front of the Supreme Court. But I would not lay odds on that.” Monday’s decision, should it stand, adds one more cut in a calamitous year for Pennsylvania’s Republican House delegation. Rep. Tim Murphy resigned his seat after he reportedly asked a woman who he had an extramarital relationship with to seek an abortion. A special election to replace him is scheduled for March 13, and the state Supreme Court order said it would be held under the existing House map.

Over the weekend, Rep. Patrick Meehan was removed from the House Ethics Committee after The New York Times reported that he had settled a sex harassment complaint brought by a former aide. Meehan represents the “Goofy kicking Donald Duck” district, the 7th, in the southeastern part of the state.

“We’re going to have a whole series of very competitive congressional elections with a lot of uncertainty,” said G. Terry Madonna, director of the Franklin & Marshall College poll and a longtime analyst of Pennsylvania politics. If Republicans are forced to redraw the boundaries, Madonna said, they might “sacrifice” Meehan’s district to shore up other Republican districts in a way that could pass muster with the court.