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Pa. Supreme Court strikes down congressional map as unconstitutional, orders change before May primary

The justices ordered a new map be redrawn immediately. If no acceptable map is submitted by Feb. 15, the court will "proceed expeditiously" to adopt its own plan.

Pennsylvania’s Seventh Congressional District has been cited as an example of extreme partisan gerrymandering. Its contorted shape has been described by the Washington Post as “Goofy kicking Donald Duck.”
Pennsylvania’s Seventh Congressional District has been cited as an example of extreme partisan gerrymandering. Its contorted shape has been described by the Washington Post as “Goofy kicking Donald Duck.”Read moreStaff Graphic

In a move certain to upend state politics and the critical 2018 elections, the Pennsylvania Supreme Court ruled Monday that the state's congressional map "clearly, plainly, and palpably" violates the state constitution and blocked its use in the May primaries.

The justices, a majority of whom are Democrats, sided with a group of voters who contended that the state's 18 U.S. House districts were unconstitutionally drawn to discriminate against Democrats. The court ordered the Republican-led legislature to draw a new map immediately.

Senate Republicans vowed to request a stay from the U.S. Supreme Court. In a statement, President Pro Tempore Joe Scarnati and Majority Leader Jake Corman attacked the ruling as a "partisan action showing a distinct lack of respect for the Constitution and the legislative process." The court, they said, had overreached.

David Gersch, an attorney for the plaintiffs, rejected that. "It's important to note that the map is what's partisan, and the legislature brought about this result," he said.

Pennsylvania's map has widely been considered an extreme example of gerrymandering, ranking among the most skewed maps by multiple measures. Republicans have consistently won the same 13 of 18 House seats since it was drawn in 2011, even as votes cast in the state were evenly split between the parties.

Critics often point to the oddly shaped Seventh District outside Philadelphia, which they assert was designed to protect Republican Rep. Pat Meehan. It has been likened to "Goofy kicking Donald Duck." Democrats have targeted the district, carried in 2016 by Hillary Clinton, in their effort to regain House control.

The case is one of three gerrymandering claims that for months have been snaking through the federal and state courts in Pennsylvania. The order came less than a week after the justices in Harrisburg heard arguments on the matter and made it clear they were seriously considering tossing out the maps. The decision quickly resonated.

"We're in such a chaotic, turbulent time right now, we have no idea what to tell candidates, or voters for that matter," said Val DiGiorgio, state Republican chairman.

Marcel Groen, chairman of the state Democratic Party, said a new map would "even the playing fields" in the Philadelphia suburbs and the Lehigh Valley. He said the party planned to fight "like hell" to win races there — "but there are no guarantees, and there shouldn't be."

Michael McDonald, a redistricting expert at the University of Florida, predicted a new map would likely create four or five Democratic-leaning districts in Pennsylvania.

Monday's ruling also gave candidates fodder to use against their primary election opponents.

Nina Ahmad, a former aide to Mayor Kenney challenging Rep. Bob Brady in the First Congressional District, said it was "disgusting" that Brady had "rallied Democrats to support" the 2011 map.

Brady, the longtime chair of the Democratic City Committee, said it was unfair to suggest he had helped cement a Republican congressional majority. "I didn't draw the map. I didn't have any input in the map," he said.

He said Republicans showed him two maps and he preferred the one that preserved three districts in Philadelphia.

Still, he called the court's ruling "a real good thing," and said he was unconcerned it would hurt his chances for reelection: "I got a river behind me. Where're they going to put me? It'll be fair."

Several justices issued dissenting statements, though the order was entered as a decision of the entire court without spelling out how justices voted. An opinion explaining the reasoning behind the order will be posted later, the court said.

In his statement, Chief Justice Thomas G. Saylor, a Republican, noted he voted against the court using "extraordinary jurisdiction" to take and quickly decide the gerrymandering lawsuit, saying it would have been more appropriate to first await the U.S. Supreme Court ruling. Justice Sallie Updyke Mundy, a Republican, joined him.

In another statement, Justice Max Baer, a Democrat, concurred with the finding that the district maps were unconstitutional but disagreed with the order to redraw them before the primary, saying time was too short.

The ruling is the latest legal affirmation of the existence of gerrymandering amid a wave of scrutiny on the issue across the nation.

Republican lawmakers are left with two options, said Michael Li, a redistricting expert at the Brennan Center for Justice at New York University: They can draw the map themselves, keeping it bipartisan enough to get Gov. Wolf's approval, or risk the court's drawing a map that is unfavorable to them.

Congressional district maps are treated as regular legislation in Pennsylvania, and Wolf's veto power gives him leverage.

"There's an incentive to be reasonable," Li said. "If they want to avoid the courts, they have to negotiate with him, because he gets a huge card that he gets to play."

Wolf, who was named as a defendant in the case but essentially sided with the Democratic plaintiffs, supported the decision in a statement Monday. "I will not accept a partisan gerrymander or a map that is unchanged from the one drawn in 2011," he later tweeted.

Democratic leaders in the Capitol said they hoped to work with their counterparts in coming weeks to redraw the maps. It's highly likely lawmakers will begin drafting while waiting to hear from the U.S. Supreme Court.

"We are not going to be foolish here. The timeline is what the timeline is, even though we disagree," said Drew Crompton, the top attorney for Senate Republicans. "So we will try and pursue maps to the best of our ability."

Crompton said the GOP would ask the high court to intervene because "no matter how you cut this, this is a federal court issue. It's under the federal Constitution … and we suspect the U.S. Supreme Court will have an interest in this."

He questioned whether the state or federal constitution gives Harrisburg justices authority to rewrite the maps.

But experts weren't so sure. The case, League of Women Voters v. Commonwealth of Pennsylvania, was brought by the Philadelphia-based Public Interest Law Center under the state constitution, and the Pennsylvania Supreme Court has the final say on state law.

Joshua A. Douglas, a law professor at the University of Kentucky and expert on election law, noted the order says the current map violates the Pennsylvania Constitution and that document is the "sole basis" for the decision.

"My sense is the majority is making that explicit, to say there's no federal issue here," Douglas said. "That language was purposeful."

Franita Tolson, a law professor at the University of Southern California, agreed.

"The Republicans have a very difficult task ahead of them if they're trying to appeal to the [U.S.] Supreme Court," she said. "I find myself sitting here trying to figure out what their claim would be."

One long-shot possibility, the expert said, could be to argue that the Pennsylvania Supreme Court runs afoul of the federal Elections Clause, which gives state legislatures the ability to run elections. Perhaps, they said, the U.S. Supreme Court would accept an argument that the state court was stepping on the toes of the state legislature, similar to an argument made in Bush v. Gore.

"I don't find that persuasive at all," Tolson said, "but I feel like it's worth a shot."

Under the Monday order, the legislature has until Feb. 9 to pass a congressional map that satisfies the state constitution, and Wolf would have until Feb. 15 to accept the plan.

If both deadlines pass without action, the Supreme Court said it would "proceed expeditiously" to adopt its own map. In anticipation of that possibility, all parties are being given the option to submit proposals by Feb. 15.

A new map should be in place by Feb. 19, the court ordered.

Staff writer Andrew Seidman contributed to this article.