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A Pa. judge recommended the state use a new congressional map passed by Republicans

The Supreme Court is not bound by the judge's recommendation and can alter it, pick a different map, or even draw one of its own.

The congressional map passed by the Republican-controlled state legislature, which a Pennsylvania judge recommended the state Supreme Court adopt.
The congressional map passed by the Republican-controlled state legislature, which a Pennsylvania judge recommended the state Supreme Court adopt.Read moreJohn Duchneskie

A Pennsylvania judge tasked by the state Supreme Court with recommending a new map for congressional districts on Monday selected the one that Republican lawmakers passed but Democratic Gov. Tom Wolf vetoed as a partisan gerrymander.

The map was chosen from 13 proposals submitted to the Pennsylvania Commonwealth Court following a breakdown of the normal redistricting process and a whirlwind of legal activity. Commonwealth Court Judge Patricia A. McCullough was poised to pick the state’s new congressional map from the ones already proposed to her when the Supreme Court took over the case last week, assigning her to instead recommend a map to the high court.

McCullough, a Republican, noted that Wolf had vetoed the map. But after running through the numbers and various aspects of that map and others, she said it met all legal criteria.

And she said it mattered that the map had passed the legislature, calling it “functionally tantamount to the voice and will of the People, which, as a matter of American political theory since its founding, is a device of monumental import and should be honored and respected by all means necessary.”

The map was introduced in the legislature by Republicans without input from Democrats. It was later amended without advance public review and passed in the face of opposition from Wolf, who criticized it as unnecessarily dividing communities across the state to unfairly boost Republicans politically.

» READ MORE: There are 13 proposed Pennsylvania congressional maps. Here's what our analysis of them shows.

When asked for proposals, State House Speaker Bryan Cutler (R., Lancaster) and Majority Leader Kerry Benninghoff (R., Centre) submitted the map to Commonwealth Court, and Senate President Pro Tempore Jake Corman (R., Centre) and Majority Leader Kim Ward (R., Westmoreland) urged the court to choose it. They said that map should be given added weight because it passed the legislature.

McCullough also cited other reasons for selecting the map, including that it “performs very well” in the number of counties, towns, and voting precincts it divides into multiple districts; that it does not appear to unfairly pair incumbents together for partisan gain; that Bucks County’s district expands into Montgomery County, instead of Philadelphia; that the map has two “majority-minority” districts where people of color make up the majority of voters; and that the map falls within acceptable ranges for various gerrymandering metrics.

The judge also recommended keeping the May 17 primary election date but moving deadlines for candidates to file paperwork two weeks later. That would allow candidates to start circulating nomination petitions to get on the ballot from March 1 through March 15, instead of Feb. 15 through March 8.

Whatever the high court does next will draw intense scrutiny.

The justices are not bound by McCullough’s recommendation, and can alter it, pick a different map from the proposals, or even draw one of its own. That’s what they did in 2018, when they overturned the congressional map at the time as an unconstitutional partisan gerrymander. After receiving a raft of proposals, the court instead assigned a renowned political scientist and redistricting expert to draw a new map from scratch.

Republicans were furious, accusing the Supreme Court and its Democratic majority of partisan judicial overreach. GOP criticism of the court has continued in the years since, including over the court’s decisions about the handling of mail ballots in the 2020 election.

That puts the court, and its seven justices who are elected in partisan contests, in the uncomfortable position of having to rule on the inherently political matter of how congressional boundaries should be drawn. Complicating things further, Commonwealth Court has a Republican majority that Democrats have often fumed at — and many Democrats are particularly unhappy with McCullough, considered one of the court’s more conservative judges.

If the Supreme Court alters or ignores McCullough’s recommendation, it will surely be seen by Republicans as a partisan act, not a strictly judicial one.

Of course, partisanship has been baked into the process from the very beginning.

Monday’s selection capped a failure of the usual redistricting process, which is supposed to occur through legislation every 10 years to reflect population changes captured in the census.

Not this time.

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.

When the legislature passed its map, Wolf promptly vetoed it.

With redistricting breaking down, a group of Democratic voters led by national Democratic election lawyer Marc Elias and a group of math and science professors filed separate lawsuits that were later combined.

McCullough requested parties in the case submit maps, then solicited responses to those maps and held two days of hearings. Among the 13 proposals were submissions from Wolf, Republican and Democratic lawmakers, and good-government groups. In a flurry of activity, 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.

That breakneck pace was suddenly disrupted last week when the Supreme Court temporarily blocked McCullough from picking a map and then decided to take over the case, citing the need to move quickly to have district boundaries finalized in time for the primary.

The justices assigned McCullough as “special master” to recommend a map. Now the participants in the case have a week to submit responses to her choice.

The Pennsylvania Supreme Court will hold oral arguments Feb. 18 — and then make the final decision.