The Supreme Court Justices are working their way through potential drafts for a ruling on a major Wisconsin case testing the constitutionality of partisan gerrymanders, but there is another big controversy over that question now moving along quite rapidly in lower courts.

That other dispute, unfolding in state and federal courts, tests the 2011 maps that Pennsylvania has been using for electing its 18 members of the U.S. House of Representatives. Those maps have allowed Republicans to win 13 of those 18 seats, after getting only a little more than half of the votes cast for seats statewide.

Some of the district maps are very oddly shaped, like one in the southeast corner of the state, described by one critic as resembling “Goofy Kicking Donald Duck.” Parts of that district are linked together by only the space occupied by a steak and seafood restaurant and another part only by a medical center. The district is divided among five different counties.

Although there are deep disputes over how to measure when a set of district maps are too partisan, the challengers to the Pennsylvania maps have argued that such bizarre shapes could have resulted only from partisan manipulation – that is, they contend that the 2011 maps were specifically crafted by GOP legislative leaders to favor GOP candidates and put Democrats at a disadvantage – and that, when actually used, have done just that.

The Supreme Court has never struck down a set of maps on that basis, and up to now has said it could not even find a formula for judging when partisanship went too far. Whether it can do so is a key issue in the current case, Gill v. Whitford.

Aside from the Pennsylvania controversy, there is another case now pending in a federal court in Maryland, but that court has said it will wait to take any further action until it gets new guidance from the Supreme Court on the constitutional question.

Republican leaders of the Pennsylvania legislature, defending the 2011 maps, have tried to stop the lower courts from moving ahead in those cases until after the Supreme Court decides the Wisconsin case, which the Justices took up at a hearing early last month. The state GOP lawmakers are contending that the coming decision in that case will affect all other challenges to partisan gerrymandering, but that is disputed by lawyers for the challengers.

Just last Friday, Justice Samuel A. Alito, Jr., refused – without giving reasons — a plea by the Republican lawmakers to put the federal case on hold, and that case moved forward at a hearing on Tuesday afternoon by a three-judge panel in Philadelphia. That case involves, in part, a different constitutional theory than the one used by challengers in the Wisconsin case.

Meanwhile, Pennsylvania’s highest state court, the Supreme Court, is pondering a separate plea by a separate group of challengers to the 2011 maps, seeking to bypass a lower state court in order to get a decision in time to have new maps drawn before the 2018 election. State GOP leaders did succeed in getting that case put on hold temporarily by a lower state judge, sitting on a middle-level appeals court, the Commonwealth Court, but the state Supreme Court is not bound by that. If the state Supreme Court opts not to take up that case itself, it will be on hold until after the Gill case is decided by the Justices in Washington.

The state court case appears unlikely to be affected directly by what the Supreme Court decides, because the state lawsuit is based entirely on provisions of Pennsylvania’s constitution, on which state courts have the last word, while the Gill case will turn entirely on the federal Constitution.

Moreover, Pennsylvania’s Supreme Court has already ruled – in a 2002 decision – that partisan gerrymandering challenges can be pursued in state courts. That option so far is denied to challengers who take their cases to federal courts, but that is now at issue in the Wisconsin case.

The challenge now in the state Supreme Court argues that the partisan gerrymandering it claims occurred in 2011 is so severe that it essentially denies Democrats any meaningful vote when they go to the polls to elect their members of Congress, and it contends that such a denial violates state constitutional provisions protecting the rights of free speech, political association, and legal equality.

They assert that 13 districts were drawn with such heavy concentration of Republican-voting citizens that Democrats never have a chance to get their preferred candidates elected in those districts, while the state’s Democrats are packed into five districts where they can prevail, but only to keep them from being shut out statewide. In in three elections using the plan, the GOP has won about 72 percent of the state’s House of Representatives seats while winning only 54 or 55 percent of votes in House races statewide.

The Gill case now awaiting a decision from the Justices is based upon similar claims of political harms, but based on federal protection of the same rights under the U.S. Constitution. The Supreme Court’s interpretations of what federally-guaranteed rights mean are not binding on state courts’ interpretations of state constitutions, although they can be persuasive.

The Pennsylvania case now before the three-judge federal panel in Philadelphia is also based on the federal Constitution’s guarantee of legal equality, but also is keyed to other provisions. It contends that the part of the Constitution that gives state legislatures the power to draw the lines for congressional districts does not give them the authority to draw maps that “favor or disfavor a class of candidates.” Its lawsuit includes a quotation from a 2010 Supreme Court decision that the Constitution’s Elections Clause “is a grant of authority to issue procedural regulations, and not a source of power to dictate electoral outcomes.”

In addition, that challenge also relies upon the Fourteenth Amendment’s promise that the citizens of each state are entitled to the same “privileges and immunities” as citizens of other states.
When the state legislature’s top Republican leaders were allowed to enter that case to defend the 2011 maps, they asked the three-judge court to put the case on hold until after the Pennsylvania Supreme Court decided the case based on state constitutional arguments. When the judges denied that request, the lawmakers then filed in the Supreme Court in Washington, asking Justice Alito to delay the case in the Philadelphia federal court.

Justice Alito denied that request without asking the challengers for their views on the postponement request. The lawmakers also have pending a formal appeal from the three-judge court’s denial of their request for a postponement, but the full Supreme Court will not act on that plea until several weeks from now.

On Tuesday afternoon, the three judges held a hearing on the case. Among other issues they explored at that hearing was the GOP lawmakers’ request that the case be dismissed, arguing that claims of partisan gerrymandering simply have no place in the federal courts. There is no specific timetable for that court to rule.

UPDATED Tuesday: Soon after holding the hearing, the federal panel ruled that the case could go ahead on the claim based on the Constitution’s Elections Clause, as that is reinforced by the “privileges and immunities” guarantee of the Fourteenth Amendment.

For the time being, it also dismissed the claim that the 2011 maps violated the First Amendment rights of the Democratic challengers, but gave them the chance to amend their lawsuit to clarify whether that claim is in any way related to their argument that the maps violate the Elections Clause.

It dismissed, outright, the claim that the maps violate their right to legal equality under the Fourteenth Amendment’s “equal protection” clause. That cannot be revived in any way in this case, it said.

Finally, it allowed the challengers to add new voters to the case from each of the state’s 18 districts. Presumably, that addition is designed at least in part to head off the state lawmakers’ claim that a voter living in one district cannot challenge statewide redistricting maps.

The judges gave no explanation for these rulings, but said they would give their reasons in a later opinion.

FURTHER UPDATED Thursday: In the state case, the Pennsylvania Supreme Court, dividing 4-to-3, agreed to allow the challenge based on the Pennsylvania state constitution to go forward on an expedited basis.  The majority ordered the Commonwealth Court to review the challenge and prepare a ruling by December 31, thus giving the state Supreme Court time to act on the controversy before the 2018 elections.  The dissenting justices did not explain their position.

(NOTE: This post also appeared on Constitution Daily, the blog of the National Constitution Center in Philadelphia.)