Two prominent leaders in Republican politics have urged the Supreme Court to consider the Pennsylvania redistricting case as a part of this year’s intense political battle for control of the U.S. House of Representatives – an issue outside the constitutional issues at stake.
The frankly political assessment of the case’s potential impact was laid out in a legal brief sent to the Court Friday by Dick Thornburgh, a former U.S. attorney general who also was a GOP governor of Pennsylvania, and former Florida GOP congressman Bill McCollum, who now serves as chairman of the Republican State Leadership Committee, described as “the largest caucus of Republican state elected officials in the country.” They asked the Court for permission to file the brief in support of a plea by two GOP state legislative leaders for the Justices to block the use of a state Supreme Court redistricting map in elections for the state’s 18 seats in the House.
They told the Court they were expressing their own views as individuals. Those views, though, closely follow what a number of Republican Party officials have been saying outside of the courts about the political fallout, in the November elections, of the legal fight in Pennsylvania.
Making the same constitutional points as the GOP state legislative leaders have made, the new brief said “there is a broader concern. This Court may take notice of the nation’s contentious political climate and particularly vigorous efforts by both major political parties either to maintain control of the United States House of Representatives.”
It added: “More than one commentator has noted that the Pennsylvania Supreme Court’s newly imposed district lines, when mapped onto historic voting data in the Commonwealth, will likely yield a significant shift in representation from one party to the other. That means that the Pennsylvania Supreme Court’s action, if left undisturbed, could affect not only representation in the Commonwealth but control of one House of Congress.”
Later in the brief, in discussing the claim that the use of the court-drawn plan would cause “irreparable harm” to the state and its election system, the two prominent Republicans returned to the theme about national political impact.
They remarked that there can be “no dispute about the potential national implications of the Pennsylvania Supreme Court’s action.” It then cited a TV news story quoting election experts as having said that “ ‘if the Pennsylvania map changes, it’s hard to imagine how the Republican hold control of the House.’ ”
Further on the point of potential harm, the brief said that “elsewhere in the nation” there will be challenges to alleged partisan gerrymandering, and those “will no doubt treat the Pennsylvania case, including its remedy, as a roadmap.”
The Justices are already deeply immersed in the current constitutional fight over partisan gerrymandering as they review cases from Wisconsin (heard on October 3) and Maryland (scheduled for hearing March 28). Over the years, the Court has made clear that constitutional challenges could be made in court to alleged partisan gerrymandering, but it has never laid down a formula for judging when that would be unconstitutional.
Although it may do so in the new cases now before it, Chief Justice John G. Roberts, Jr., expressed concern in the hearing on the Wisconsin case about the public gaining the perception that the Justices were choosing up sides in a purely political fight. That, he said, “is going to cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country.”
It may have been that very concern that, after hearing the Wisconsin case that involves a claim of gerrymandering by Republicans, the Justices then agreed to hear the Maryland case, involving a claim of gerrymandering by Democrats. The Court gave no explanation for adding the Maryland case weeks later.
The new brief filed by the two well-known Republican figures could add to the concern that the Justices may be getting drawn into what, years ago, one Justice called a “political thicket” that the Court should not enter.
The core question at stake in the Pennsylvania case, as it now stands in the Court, is purely one of constitutional interpretation: what does Article I mean when it assigned to state legislatures the task of drawing districting maps for electing House members?
Specifically, the questions are whether the Pennsylvania Supreme Court violated Article I’s Elections Clause by drawing up its own map for this year’s elections of 18 House members from the state, and by drawing that map without giving the state legislature an adequate opportunity to draw up its own map to cure the partisan gerrymander that the state court saw in the existing, 2011 map, in violation of the state constitution.
An underlying constitutional issue, though, is whether the Justices are prepared to second-guess how a state’s highest court interprets its own state constitution. It normally will not do that.
As of now, though, the only specific task before the Court is whether to block the use of the court-drawn map in Pennsylvania until the Justices can decide whether to hear and decide the challenge to that map by the two top GOP leaders in the state legislature. That task is now before Justice Samuel A. Alito, Jr., who handles emergency matters from the geographic area that includes Pennsylvania. But he has the option of sharing that task with his eight colleagues.
Last month, acting on his own without seeking his colleagues’ views, Justice Alito denied without comment a similar plea for blocking the state court’s map.
Justice Alito has asked for a response by Monday afternoon to the state’s GOP legislators’ request, from the state’s top election officials and Democratic voters who support the state court’s map.