Arguing that the Pennsylvania Supreme Court unconstitutionally seized the power to draw new congressional districts away from the state legislature, the two top Republican lawmakers in the state returned to the U.S. Supreme Court Wednesday night with a plea to block the judge-drawn map. The new request was filed 16 days after a similar plea was rejected by Justice Samuel A. Alito, Jr.
The center of the challenge is the legislative leaders’ claim that the federal Constitution assigns to state legislatures full authority to devise new election districts for the U.S. House of Representatives, leaving no role for state courts. There are Supreme Court precedents from the past that seem to lean both ways on that question.
While much of the argument in the new filing seems to suggest that the violation of the Constitution’s Elections Clause is clear and definite under prior Supreme Court rulings that should dictate the outcome now, the legislators say at one point that they were laying before the Justices “an issue of federal law long overdue for definitive resolution by this Court.”
One section of the document seeks to counter the historic reality that the Justices seldom will second-guess how a state’s highest court interprets its own state constitution. It argues that the task of drawing the lines of congressional districts is always a legislative one, so the Pennsylvania court used its power of constitutional interpretation to put itself in position to do the legislative chore itself. It also contends that, from the very beginning, the majority of the state court had no intention of giving the legislature time and opportunity to adopt a valid plan once it had struck down the legislature’s 2011 plan, shortening the time to assure the court the option to create its own electoral map.
The filing says that the state court majority did not actually give the legislature guidance on how to remedy the state constitutional flaw it had found until two days before the legislature was ordered to come up with such an alternative. That, too, was intentional, the state GOP legislators concluded.
The federal constitutional argument under Article I’s Elections Clause seeks to rely heavily upon a strict construction of that provision, to appeal to Justices who follow an “originalist” and “textualist” approach to the Constitution – past and current conservative Justices. It quotes at length from those Justices’ prior writings on the Clause.
Although the document was heavily focused on constitutional arguments, it also supplied several other claims to attract the Justices’ attention: that the court-drawn plan was issued in a form and on a timetable that will cause voter confusion and polling place chaos in this year’s elections, that the court at the last minute came up with a plan for “proportional representation” of seats among the two major parties, and that it belatedly devised line-drawing principles that are nowhere in the state constitution.
In discussing the claim of confusion and chaos for voters and election officials this year, the document notes that the court is allowing the use of the invalidated 2011 plan in a special election on March 13 to fill a congressional vacancy in one district while mandating that the court’s new plan be used throughout the state in the May 15 primary. The two candidates now running for the open seat, it said, do not even live in the new district the court crafted for that part of the state. (State government officials who conduct elections have several times moved to assure the state court that they can carry out both elections without difficulty or confusion.)
In a carefully worded portion of the document, the GOP legislators intimate that the four Justices in the majority in devising the new plan had run for office as Democratic candidates and drew up a plan with the specific aim of shifting seats to future Democratic candidates. (Pennsylvania chooses its justices for the highest court by election.)
The document, however, nowhere mentions that the 2011 plan – used in three separate elections since its drafting – has always produced 13 seats for Republican candidates and five for Democratic candidates, even though statewide voting totals in those elections were almost evenly split between the two major parties.
Those were results that the challengers to the 2011 plan had partly relied on in claiming it was an invalid “partisan gerrymander” in violation of the state constitution’s guarantee of “free and equal” elections. The state court’s conclusion that the 2011 plan was driven by a partisan motive was that the legislature had drawn oddly shaped districts that violated traditional redistricting principles in order to dilute the votes of Democratic voters.
Under the state court’s new plan, election experts have suggested that it will lead to Democrat gains of at least three seats, for a split of 10 Republican victors and eight Democratic winners, and maybe a gain of as many as four seats, for an even split of party winners, nine to nine.
At this point, the GOP legislative leaders are only seeking a Supreme Court order blocking the state court’s new plan until the legislators can file and the Justices can act on their constitutional challenge to that plan in a direct appeal from the state’s highest court. Under the Justices’ rules, they have authority to review a state court decision that was based on a finding based on a federal legal or constitutional question – in this instance, the state court’s defense of its authority to draw new districts in the face of an Elections Clause challenge by state GOP leaders.
The filing was submitted to Justice Alito, who handles emergency matters from the region that includes Pennsylvania – the federal Third Circuit. Alito has the option of acting alone, as he did earlier this month in denying the previous postponement request by the legislative leaders, or of sharing the task with his eight colleagues. It is up to Alito to decide which step to take. It would take the votes of five Justices to grant the delay request, but Alito alone could deny it as could five Justices if the full Court were to act.
Ordinarily, the rules of the Supreme Court provide that such delay requests will seldom be granted unless such a request was first pursued in the lower court whose decision is at stake. As of Wednesday night, there had been no such filing with the state court, and the filing with the Justices did not mention that potential question.
Although Justice Alito turned down the prior request by the legislative leaders, their new filing said there had been further missteps by the state court majority since then – the delay in providing guidance for the legislature on any new plan, and the takeover of the final map-drawing by the state court.
Meanwhile, there have been discussions among state and national GOP leaders of a separate plan to challenge the state court’s map in a federal court in Harrisburg, with that filing coming perhaps later today. If that separate lawsuit were to be filed in a way that involved the same parties on both sides, a provision of federal law that has existed since 1789 could require the federal court to respect, at least to a degree, the decision now made by the state court. New parties on one side would not be faced with that restriction, however.