The political calendar for electing 18 members of the House of Representatives from Pennsylvania will continue to unfold over the weekend, but no one in the state – not candidates, not voters signing candidate petitions, not state officials – know if they are doing it right. The reason they don’t know is that the U.S. Supreme Court has not told them.
In one of the more puzzling episodes in the Justices’ handling of pleas to set the constitutional rules for a congressional election in one of the states, there has been no word for 10 days on what is happening at the Court on the controversy surrounding this year’s congressional balloting in the Keystone State.
And, since the Justices have now gone home for the weekend, the mystery will continue at least until Monday. And that leaves more than 180 candidates seeking the 18 House seats just two more days – Monday and Tuesday – to finish gathering voter signatures on nominating petitions.
The candidates can only get signatures from voters who live in the district they want to represent, and the definition of those districts depends, to a considerable degree, on what the Supreme Court does in coming days – or, possibly, weeks.
What is before the Court, explicitly, is the second request by two Republican legislative leaders in the state to block Pennsylvania election officials from using the House district lines drawn by the Pennsylvania Supreme Court on February 19. The legislators’ filing reached the Court on February 21. All the legal briefs in response were filed by March 6.
The only thing that seems to have been resolved at the Court – although even this is a matter of speculation – is that Justice Samuel A. Alito, Jr., who received the state legislators’ plea, may have chosen not to act on it himself but has passed it along, sharing it with his eight colleagues.
Alito, who handles emergency legal matters from the geographic region that includes Pennsylvania, acted on his own in turning down the first challenge by the GOP lawmakers. That was before the state Supreme Court had actually drawn a districting map of its own, as a remedy that it chose to replace a legislature-crafted map it struck down earlier as a “partisan gerrymander.”
That first request was rejected two days after legal papers had been filed with Alito. He gave no explanation for denying that plea. At that time, the only issue before Alito was the lawmakers’ challenge to the state court’s ruling on the “partisan gerrymander” map used in the state since 2011.
After the two GOP lawmakers filed the new request, protesting explicitly the new court-drawn map, Alito again called for legal briefs from both sides. Since the last of those filings was submitted to the Court March 6, there has been silence at the Court, even on the question of whether Alito would share the task with the other Justices. It is highly unlikely that the delay lies only with Alito because the probable involvement of the other Justices may have added complications.
Now, the timing of action at the Court appears to depend upon (1) whether the Justices have decided not to act until some other event has occurred, (2) whether they are not ready to act for some other reason, or (3) whether they have made up their minds but need more time to spell that out in opinions to be released publicly. They probably do not have the option of simply choosing to do nothing; there is no technical flaw in the filings, so the case is ready and an answer awaits.
Could the Justices be waiting for something else to happen first? Might they have waited to avoid issuing a decision while Pennsylvania’s voters were going to the polls last Tuesday in a special election in one of the old districts? If that was the reason, the outcome of that election is technically still open, although little doubt appears to surround the probable result.
Might they be waiting for a federal trial court in Harrisburg to decide a similar constitutional challenge to the state court’s map? The three-judge panel held a hearing on that challenge on March 9, and has given no sign of when it will act.
Either one of those reasons for waiting would be highly unusual.
First, the special election last Tuesday had nothing to do with the controversy before the Justices, since it was successfully carried out using the old, 2011 lines for that area, District 18 in the southwest corner of the state. The Justices don’t usually watch one election calendar while they are weighing what to do about another one.
Second, the outcome of what the Harrisburg court does would not relieve the Justices of the task of ruling on the delay request pending before them. And, if the three-judge court does issue a ruling in coming days, that, too, would likely be appealed to the Justices and it would again raise the same constitutional questions already submitted to the Supreme Court.
Might the delay be traced to some other difficulty at the Supreme Court? The Justices have been busy getting ready for a new round of hearings next week in already-granted cases, but they had time this past week to act on three death sentence cases. They almost surely had time to work on the Pennsylvania dispute, too, especially since the process for handling that kind of dispute does not require the Justices to talk about it in their private conference; they are usually handled by memoes sent between the chambers.
Is the new request significantly more complicated than the one Justice Alito handled so quickly? The two GOP legislators did argue that the constitutional objection they had to the actions of the Pennsylvania Supreme Court was hardened when the state court actually drew the lines for the 18 new House districts without giving the legislature the first option of crafting a remedy map, and, they added, without giving the legislature enough time to try to generate a new map.
Do the Justices see that as a different constitutional question under the federal document’s Elections Clause, which says that the legislatures are the first entity assigned the task of congressional districting and redistricting? Some of the current Justices have read the Elections Clause strictly on that point, so they may be taking the legislators’ new challenge more seriously.
Those Justices, however, were in the minority when the Court last ruled on the meaning of the Elections Clause, in 2015 in an Arizona case. Is it possible that the GOP legislators have been denied what they seek by other Justices (it would take the favorable vote of five Justices to give them what they ask), and others are preparing dissents from the planned denial?
But even if that is the scenario that is using up time, it hardly seems likely to have taken all of 10 days to accomplish – unless the explanatory opinion or opinions will be lengthy.
There may be one other scenario, though, that could not only explain the delay up to now, but also could mean that the Justices will string out the processing of the case for several weeks.
The Justices do have the option of deciding that the new plea by the GOP legislators deserves full-scale review, with a grant of review based only on the papers already on file, followed by full legal briefing, a hearing, and a full-scale decision. Whether they will take that option is a matter of pure speculation, and that approach would completely upset the election process that is already taking place in Pennsylvania under the lines drawn by the state court. Chaos and confusion, though, could be avoided by postponing the scheduled House primary election, now set for May 15.
For the candidates, voters and state officials in Pennsylvania, they may get some indication on Monday what the Justices have opted to do. The Court is scheduled to release a list of orders on pending cases at 9:30 a.m. Monday. If that list contains nothing about the Pennsylvania feud, those in the state will have to resume their daily monitoring to see if the Justices break their silence.