A Commonwealth Court judge recommended Friday that the Pennsylvania Supreme Court uphold the state's map of congressional districts in a high-profile gerrymandering lawsuit that challenges the map as unconstitutionally drawn to benefit Republicans.
Democrats hold a 5-2 majority on the state's high court, which has fast-tracked the suit. On Friday, the justices scheduled oral arguments for Jan. 17 in Harrisburg.
"A lot can and has been said about the 2011 Plan, much of which is unflattering and yet justified," wrote Commonwealth Court Judge P. Kevin Brobson, who had been tasked by the high court with holding a trial and submitting "findings of fact" and "conclusions of law" before the end of the year.
The plaintiffs had shown that partisan considerations were taken into account in creating the map, he wrote, and that more politically neutral maps could have been drawn that would not have been as favorable to the GOP.
But some degree of partisanship is considered acceptable in redistricting, he said, and the plaintiffs had not created a "judicially manageable standard" for the court to decide whether the map crossed the line.
"Petitioners, however, 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," he wrote. "For the judiciary, this should be the end of the inquiry."
Lawyers from both sides praised the decision: The plaintiffs focused on the factual findings, including that partisanship was likely taken into account, while the defendants focused on the legal conclusions, including that a clear standard had not been established.
"We are very pleased that Judge Brobson made the factual findings that he did. He recognized that the 2011 plan was deliberately drawn to maximize the partisan advantage for the Republicans and to penalize Democrats for their voting histories," said Ben Geffen, a lawyer for the Democratic voters bringing the suit.
Drew Crompton, the GOP-controlled state Senate's top lawyer, called Brobson's decision "incredibly detailed" and well reasoned.
"Even though it's not always a flattering process, he found it to be constitutional on all grounds," Crompton said.
Brobson's conclusions hit upon a point that has frustrated legal challenges in the past: Exactly how much partisanship is considered extreme has never been well-defined. In 2004, the U.S. Supreme Court came close to ruling that gerrymandering is a question outside the purview of the courts.
In the years since, social scientists and legal scholars have proposed a variety of measures. This term, the U.S. Supreme Court is hearing two gerrymandering cases, one from Wisconsin and one from Maryland, that could create just such a standard.
The state Supreme Court can take Brobson's conclusions into account but will ultimately make its own ruling.
Some lawyers, advocates, and court-watchers from multiple sides had speculated that Brobson, who was elected as a Republican, would recommend upholding the map. But few have been willing to predict what might happen at the Supreme Court, given its Democratic makeup. Depending on where the source sits on the political spectrum, there is fear of an "activist court" that tries to make a statement or hope of a "progressive court" that saves the day.
If the high court orders the map redrawn, it could potentially do so in time for the 2018 primary elections.
The suit was brought by a group of 18 Democratic voters, one for each of the state's congressional districts. The voters, represented by the Philadelphia-based Public Interest Law Center, argued that Pennsylvania's map is designed to favor Republican candidates for the U.S. House of Representatives, discriminating against Democratic voters and candidates.
Pennsylvania's map is considered one of the country's most gerrymandered. Since the map's adoption in 2011, Republicans have won 13 of the 18 seats, even as statewide votes have been roughly equal.
During a one-week trial earlier this month in Harrisburg, the plaintiffs called a series of professors as expert witnesses to attack the map from several angles. One said the map was unlikely to have been based on politically neutral principles, according to hundreds of simulated maps randomly drawn by a computer; another said the map unnecessarily divides "communities of interest" such as towns and counties.
Because of the state constitutional doctrine of legislative privilege, the mapmakers could not be forced to hand over documents, testify or otherwise explain factors they considered.
Pennsylvania's congressional map is passed by the General Assembly and signed by the governor. Every state redraws its districts after the census every 10 years, accounting for population shifts and changes in the allocation of of House seats.
"What the petitioners' case forgets about is the fact that this is a legislative process and that ultimately, at the end of the day, computers aren't the panacea that their experts claim them to be," Robert Tucker, a lawyer for the Republican lawmakers, said after the trial. "And you have to have actual humans involved in drafting these lines."
The next census takes place in 2020, and Pennsylvania is likely to lose a House seat in the reapportionment process afterward. The next map would be drawn in 2021, to take effect for the 2022 elections.
If the Pennsylvania Supreme Court ultimately rules against the Republicans in this case, declaring the current map unconstitutional and ordering it redrawn, it would have a tight timeline to create a new map before the 2018 elections.
To stay on the current schedule for the May 15 primary elections, the state needs a new map in place by Jan. 23, state officials have said. There is some flexibility, but the latest a new map could come in is the beginning of April, which would require delaying the primary election into the summer.