Pennsylvania's congressional map fight reveals a deeper national redistricting battle
As gerrymandering cases come to a head, the lawmakers defending the maps, including in Pennsylvania, have worked from the same playbook and tried to support each other. "If you think your house is on fire," one expert said, "you call some of your friends to try to put the fire out."
When the legal armies met for the first time in Harrisburg to fight over Pennsylvania's congressional map, the challengers asked the judge to move quickly. They wanted the map overturned before the 2018 elections.
The other side, led by top Republican lawmakers, implored the court to wait; this had to be done properly.
Both sides came armed with previous cases. But the precedents were muddy.
"What I'm saying is they were inconsistent," said Commonwealth Court Judge Dan Pelligrini.
Jason Torchinsky, a lawyer for the Republicans, shot back: "Welcome to redistricting law."
"OK," the judge responded. "You know the problem with redistricting law? Nobody really gets good at it because they only do it once every 10 years."
But expertise has been building. Gerrymandering litigation has escalated, with multiple maps under challenge and major cases pending before the U.S. Supreme Court; lawyers such as Torchinsky have become a legal fire brigade as maps have been declared unconstitutional in Pennsylvania, North Carolina, and Wisconsin.
Torchinsky and others are in Harrisburg once again Friday, arguing over a federal lawsuit that seeks to block the new congressional map and reuse the old one for the 2018 elections. Meanwhile, the wait continues as U.S. Supreme Court Justice Samuel A. Alito Jr. considers a similar request from top Republican state lawmakers.
Torchinsky, a partner in Holtzman Vogel Josefiak Torchinsky PLLC, a go-to firm for Republicans across the country, has defended GOP-drawn maps or filed briefs in support of them in several gerrymandering cases, including in Pennsylvania, Michigan, Wisconsin, Virginia, and North Carolina. He's represented Republican state lawmakers, Congress members, the Republican National Committee, and the National Republican Congressional Committee.
His involvement in so many cases shouldn't be surprising, Torchinsky said in an interview Thursday. "In a narrow area of law," he said, "there's only a handful of people who do this nationwide."
As litigation has heated up, Torchinsky's clients and other Republican lawmakers have formed a de facto support network, using legal tactics from a shared playbook and filing legal briefs in one another's cases.
"There's no question that if you sort of look behind the curtain a bit, you can see that redistricting is a national effort by the parties," said Michael Li, a redistricting expert at the Brennan Center for Justice at New York University.
Republicans are the ones defending maps now because it was the GOP that organized in 2010 to flip state legislatures and control the map-making in several states, Li said. But he noted that Democrats are also guilty of gerrymandering when they get the chances, and likely would have done so in 2010 if they had been in control of those statehouses. The GOP is scrambling, Li said, because of anxieties about what might happen in 2018.
"As the electoral tide seems to be moving against them nationally, these gerrymanders become all that more important," he said. "And they seem to be coordinating to sort of defend them, and that makes sense. If you think your house is on fire, you call some of your friends to try to put the fire out."
How we got here
And that fire brigade certainly has been busy.
In October, when Judge Pellegrini complained of inconsistencies in some of the previous cases, the U.S. Supreme Court had just heard arguments in a blockbuster partisan gerrymandering case over Wisconsin's state legislative lines. The high court had not yet picked up a case over Maryland's congressional map. North Carolina's congressional map hadn't yet been overturned by a federal court. The group of Democratic voters suing over Pennsylvania's congressional map hadn't yet succeeded.
All that would come to fruition within a few months. In Pennsylvania, the state Supreme Court would draw national attention — including President Trump's — by throwing out the map, imposing a new one, and upending politics across the state.
Gerrymandering challenges are cyclical, as the judge noted, popping up regularly with each decade's redistricting of the congressional maps following the Census. But the ones accusing mapmakers of partisan gerrymandering had limited success previously.
In a 2004 Pennsylvania gerrymandering case, Supreme Court Justice Anthony M. Kennedy said that the courts could have a role if some tests for measuring it could be developed. That prompted a scramble to pitch ideas to the court. The Gill v. Whitford Wisconsin case currently before the high court incorporates some of the tests developed in the wake of that ruling, as did the Pennsylvania case.
Armed with those tests and various legal arguments and evidence, new cases began finding traction. The Wisconsin case was the first time in decades in which a partisan gerrymandering challenge had succeeded, and the North Carolina case was the first time a federal court struck down a congressional map on partisan gerrymandering grounds.
"What we're seeing is Democrats reacting to the fact that they have a demographic problem, which is that their voters tend to live too closely together, and they're looking to the courts to solve their demographic problem," Torchinsky said. He said that the clustering in urban areas hurts Democrats' ability to win state legislative and congressional seats.
In Pennsylvania, the state Supreme Court took over the case, fast-tracking it before overturning the map and ultimately drawing its own. That ruling could become a model for other state courts, experts said, because the court ruled that extreme partisan gerrymandering violated the state constitution's guarantee that "elections shall be free and equal" — and 25 other states have constitutions with similar "free and equal" or "free and open" elections clauses.
Pennsylvania redistricting fight
Pennsylvania's top two Republican lawmakers, Senate President Pro Tempore Joe Scarnati and House Speaker Mike Turzai, are asking the U.S. Supreme Court to intervene to block the new map. (A similar earlier request was denied.) They have accused the state high court of partisanship and have tried to get a justice disqualified, alleging bias.
Many of the maneuvers parallel those used in other cases. Justin Levitt, a law professor and associate dean at Loyola Law School in Los Angeles, said the playbook for defending the maps has three main components.
"First off, stall," he said. Getting to use a gerrymandered map for one more election means another two years of favorable numbers for your party, he said, and increases the incumbency advantage that much more. "It is always too soon, too late, too disruptive, too insert-the-blank to do anything for the next election, no matter when it is. You see this argument over and over."
"The second tactic is 'redistricting is inherently political and we have a body to deal with inherently political stuff, and that's the legislature,' " Levitt said.
"Attack number three is: Anybody who drew the line is an improper entity to draw the line," he said. "They didn't give us a good enough chance. If there was something wrong with the first iteration, we ought to have a longer chance, a better chance to fix it."
"Obviously, you've seen all these things in Pennsylvania," Levitt said. "You've seen all these things everywhere else, too."
The national support network
It makes sense that some lawyers get called on over and over, experts said. As Torchinsky said, redistricting is a specialized area.
And the workings of the GOP support network are evident in some of the friend of the court briefs. For example, the Senate President Pro Tempore and House Speaker in North Carolina, both Republicans, filed one such brief in support of Scarnati and Turzai, their Pennsylvania counterparts. The U.S. Supreme Court, the North Carolina Republicans said, should stay the Pennsylvania high court ruling.