The Pennsylvania Supreme Court on Wednesday took control of a high-stakes redistricting lawsuit and will now decide how the state’s congressional districts will be drawn for the next decade.
A lower court had been poised to select a new map from among 13 proposals this week because the normal redistricting process between the governor and state legislature had broken down. Now the high court will instead make the decision, exercising its “extraordinary jurisdiction” power to take over any case.
That will likely speed up the selection of a final map, which was the stated goal of the plaintiffs who asked the Supreme Court to step in. The clock is ticking — there are less than four months until the May 17 primary — and uncertainty around district boundaries has kept candidates, voters, and elections administrators in limbo.
The court cited both “the impasse between the legislative and executive branches” and the election timeline in its order.
As Chief Justice Max Baer wrote in a concurring opinion, the possibility that the lower court’s choice of a map would then be appealed to the Supreme Court “reduces the scant days available for this Court to obtain briefs, study this complex and important matter, and render a decision.”
The two Republicans on the court disagreed with the decision, saying the case could have moved quickly.
The justices appointed Patricia A. McCullough, the Commonwealth Court judge who had been overseeing the case, as “special master.” They asked her to recommend a map to the court, submit a report supporting her selection, and propose changes to the primary election calendar, all by Monday.
Participants in the case will then have until Feb. 14 to respond to McCullough’s choice, and the Supreme Court will hold a hearing Feb. 18 before deciding on a congressional map. (It will not be bound by McCullough’s recommendation and can pick another or draw a different one altogether.)
That means Pennsylvania could have a final congressional map within a few weeks, and a shortened time period for candidates to file paperwork to run in those districts.
It could also potentially mean much more than that: In a concurring opinion, Justice Kevin Dougherty called for the Supreme Court “to establish a uniform practice for dealing with redistricting cases such as this,” including deciding which court should pick a map in the event of a stalemate, as occurred this year.
He said the case may present an opportunity for the Supreme Court to build on its landmark 2018 gerrymandering ruling and provide additional guidance on how future congressional maps should be drawn.
“In the event this case presents the opportunity to provide further clarity, I for one am willing to do so,” Dougherty wrote, “and shine as much light as possible on what many believe is an improperly political and unfairly partisan process.”
The court’s decision to step into that process is likely to put it in partisan crosshairs once again.
Elected Democrats hold a 5-2 majority on the Supreme Court, which has drawn intense criticism from Republicans since its 2018 decision to overturn Pennsylvania’s congressional map as an unconstitutional partisan gerrymander. The court drew a new map. Since then, Republicans have continued to attack the court for decisions they see as partisan judicial overreach, including rulings in election-related cases in 2020.
Democrats have made no secret of their belief that the high court is more favorable to them than the Commonwealth Court, which has a Republican majority they often disagree with. (When the Commonwealth Court last week ruled the state’s mail-voting law unconstitutional, Philadelphia elections chief Lisa Deeley called it “probably one of the worst courts in the nation.”) The law remains in place while the Supreme Court considers an appeal.
States redraw their congressional districts every decade to reflect population changes captured in the census. Those maps help shape political power and community representation, so politicians have long used the process to benefit themselves by gerrymandering the lines, or drawing them to unfairly benefit themselves and their party. When Republicans drew the congressional map in 2011, the districts were so precisely crafted to benefit the GOP that for years after the same 13 districts voted for Republicans and the same five districts for Democrats — even as Pennsylvania’s evenly split voters sent Barack Obama and Donald Trump to the White House and Bob Casey and Pat Toomey to the Senate.
That map was the one the state Supreme Court overturned in 2018. This time, many observers had long believed redistricting would once again end up before the court.
They were right.
» READ MORE: View all the proposed new Pa. congressional maps
The usual redistricting process, which occurs through legislation, failed: The Republican-controlled state legislature passed a congressional map that Gov. Tom Wolf, a Democrat, vetoed. Even as lawmakers passed the map, Senate Majority Leader Kim Ward (R., Westmoreland) told reporters she knew the governor would veto the map and it would end up in court.
Republicans didn’t work with Democratic lawmakers when they introduced a map and then amended it — without public scrutiny — and passed it. Meanwhile, Wolf refused to negotiate directly over the districts, instead putting out a set of general principles and criticizing Republican maps without releasing his own specific ideas for districts until shortly before the end of the process.
With redistricting breaking down, a group of Democratic voters and a group of math and science professors filed separate lawsuits that were later combined. McCullough, elected as a Republican and considered one of the more conservative judges on the court, set a deadline of Sunday for a final map to come through the normal process.
In preparation for the likelihood there would be no map by that deadline, McCullough requested parties in the case submit maps last week, then solicited responses to those maps and held hearings Thursday and Friday. In the week’s flurry of activity — which continued Saturday — the various parties in the case sought to demonstrate to the court that their maps met constitutional requirements and explained why they should be chosen.
Those parties, including Wolf, Republican legislative leaders, Democratic lawmakers, and good-government groups, submitted 13 maps to the court.
But one set of plaintiffs in the case, represented by national Democratic election lawyer Marc Elias, filed a request Saturday with the Supreme Court, asking it to take over the case directly and impose a map, bypassing the Commonwealth Court decision and appeals process.
The justices on Monday temporarily blocked McCullough from picking a map while they considered whether to take over the case. (On Tuesday, McCullough told the Supreme Court that she was prepared to select a map this week, if allowed.)
On Wednesday, the justices made their decision: The Pennsylvania Supreme Court will once again draw the state’s congressional map.