Gerrymandering and the 2018 elections: Advocates ask Pa. Supreme Court to use rare power
A judge has ordered a stay in the case until the U.S. Supreme Court decision in Gill v. Whitford. With 2018 elections around the corner, the League of Women Voters is asking the Pennsylvania Supreme Court to step in.
Advocates are trying to fast-forward court action on changing Pennsylvania's congressional map — considered among the most distorted in the nation — before the important 2018 elections.
A state judge overseeing a suit by the League of Women Voters of Pennsylvania wants to hold off any action pending a U.S. Supreme Court ruling in a similar case out of Wisconsin, but the league is asking the state high court to fast-track the case.
In a hearing earlier this month, Commonwealth Court Judge Dan Pelligrini made clear he did not see the case being decided before the 2018 elections, saying, "I can tell you it isn't going to happen." On Monday he ordered a stay in the league's suit.
"The idea that we would have yet another election that takes place under a map that violates people's constitutional rights to vote, that's not acceptable," Mimi McKenzie, legal director at the Philadelphia-based Public Interest Law Center, which is representing the league, said Thursday.
The league sued the General Assembly and its Republican leadership, saying Pennsylvania's map is an extreme example of partisan gerrymandering that discriminates against Democrats. Republicans have 13 of the 18 Pennsylvania seats in the U.S. House of Representatives, even though the state's voters are fairly evenly split between the parties, and test after test suggests the map is intentionally designed to favor Republicans.
With time working against the league, it has asked the Pennsylvania Supreme Court to take over the case and fast-track it, a power the court has but rarely uses.
"Petitioners sought to proceed in the Commonwealth Court in time for the 2018 congressional elections. … But the only thing that has happened in the Commonwealth Court is delay," the league wrote in an application to the state Supreme Court, asking it to use its authority to intervene in extraordinary circumstances, known as its King's Bench power.
Jason Torchinsky, a lawyer representing two GOP leaders — state House Speaker Mike C. Turzai and state Senate President Joseph B. Scarnati III — as well as the General Assembly, said he would argue in a filing Monday that the court should not be rushed and that the league should have filed its suit earlier.
"Basically, they waited almost six years to file the case, and they've created their own urgency, and the court shouldn't abide by that," said Torchinsky, a Virginia lawyer. "Their delay in filing the case shouldn't cause everybody else to rush and trip over themselves."
The state Supreme Court rarely uses its King's Bench power, which is reserved for matters of significant public importance that require timely intervention, said Mary E. Levy, a professor at Temple University Beasley School of Law who is unaffiliated with the case.
"It's exceedingly rare. It's a tough, tough sell," she said, especially because the U.S. Supreme Court's Whitford decision in the Wisconsin case could provide new guidance for legal questions about gerrymandering.
In the league's favor is a 2002 gerrymandering case, Erfer v. Commonwealth, in which the petitioners similarly asked the state Supreme Court to take over. The court agreed to do so, and came to a decision in just months.
If the league can persuade the state Supreme Court to take up its case, the next step would be convincing the court that the maps are unfairly drawn in a way that disenfranchises voters.
"The defendants are trying to stall," said Tabatha Abu El-Haj, a professor at Drexel University's Thomas R. Kline School of Law who is unaffiliated with the case. She said postponing a decision until after the 2018 elections is "clearly a partisan interest on the part of the defendants."
"The stakes are high. It is unfair for Pennsylvania residents to have to live under these maps for an entire decade," Abu El-Haj said. Still, a decision in favor of the league, whenever it comes, would make a difference, she said: "The issue won't be moot because it will still affect the negotiating positions of the parties in the next round of redistricting."