Posted at Chris Satullo| June 27th, 2019
The U.S. Supreme Court’s decision to shrug at extreme partisan gerrymandering is disappointing, but not surprising. Pennsylvanians, though, should realize this ruling does not undo progress at slaying the gerrymander in their state. Nor does it thwart the push for state-based reform.
First, what did the Supreme Court do in an obviously hotly debated vote that broke along 5-4 lines?
The court’s conservative majority declined to see any role for federal courts in curbing the accelerating trend of political parties (both D and R) rigging election maps aggressively in their favor.
Here’s the majority opinion.
A key excerpt from the opinion: “None of the proposed ‘tests’ for evaluating partisan gerrymandering claims meets the need for a limited and precise standard that is judicially discernible and manageable.”
In other words, the court held that it could find no stable, reliable test for determining when a gerrymander has crossed the line into excessive partisanship. Given that, the majority concluded, federal courts should stay out of this arena.
Here is the New York Times’ lucid report.
It’s important to note that the Maryland case covered by the ruling involved a bad Democratic gerrymander. Yes, both sides do it, given the chance. It’s just that across the nation in 2011, the last time maps were drawn, the Republican Party seized that chance with a vengeance.
The North Carolina case, which has gotten more attention, involved one of the nation’s most blatant GOP gerrymanders, with the state lawmaker in charge of the mapping stating out loud that the lines got drawn the way they did because “electing Republicans is good for America.”
Equally important for Pennsylvanians to recognize is that this unhelpful decision by the nation’s high court is less damaging to redistricting reform in their state than it may be in many others.
Why? Because the Pennsylvania Supreme Court issued a landmark ruling last year tossing out and replacing a 2011 pro-Republican congressional map – and that precedent is untouched by the Roberts opinion. It is rooted in the free expression and voter rights protections of the state Constitution.
(For a great explanation of the legal theory behind that case and of how other states are now looking to it as a possible model in the quest to slay the gerrymander, listen to the interview one of the lead lawyers in the case, Ben Geffen, gave to our Draw the Lines podcast.)
Rooting an argument vs. gerrymandering in a state constitution is vital for this reason: The federal courts generally avoid avoid taking on cases that would entail telling states how to interpret their own constitutions.
The Pennsylvania Supreme Court’s decision applied only to our state’ congressional map. But it did, however, explicitly endorse some guardrails against excessive gerrymandering that the PA Constitution sets for the making of state legislative maps. These include avoiding splitting up county and municipalities among multiple districts and favoring compact district shapes. Under the court’s ruling from last year, those standards are now in play for the congressional map.
This does not by itself eliminate all possibility of partisan gerrymandering, but it does put some bounds on it.
What’s more, two distinct iterations of the state Supreme Court, with very different partisan makeups (yes, for some reason, we elect judges in this state), have ruled strongly against gerrymandering in the last decade.
In fact, all three maps that emerged from the General Assembly in 2011 have been tossed out by state’s high court as unconstitutional gerrymanders. The court rejected the original state House and Senate maps in 2012, in a separate case spearheaded by Amanda Holt of Lehigh County, a member of the Draw the Lines steering committee.
In short, Pennsylvania’s top judges have done for their state the job that the Roberts Court – claiming a reluctance to second-guess the decisions of state lawmakers that it often doesn’t show on other issues – refuses to do for America.
Now, none of this means that Pennsylvanians can just lean back, relax and turn on Netflix, secure in the knowledge that the gerrymander is slain in the Keystone State.
It is not. Too much room for partisan mischief (by either Democrats or Republicans) still exists within the guardrails set by the court rulings.
Action is still needed in the General Assembly to set up a new redistricting process so that, when new maps are drawn in 2021, the process will be fair, orderly, and transparent with robust public input – and guided by the principle of doing what’s best for genuine democracy in Pennsylvania, not just what’s best for incumbents and political partisans.
A big next step in that effort will be the release in September of the recommendations of Gov. Wolf’s special commission on redistricting reform. Beyond that, a group of reform bills worthy of your attention await action in the General Assembly. The FairDistrictsPA advocacy group offers a clear explanation of the changes it favors. Other, less dramatic versions of reform also rattle around in the legislature.
This fall will be the critical time period for action on real reform. Once we get into 2020 – a presidential and legislative election year just a year away from the actual drawing of maps after the 2020 Census – significant action become less likely.
And nothing will happen without a strong push from below, without regular voters letting lawmakers know they will not stand for this blatant election cheating, this rigging of democracy, this mocking of voters’ rights, for a single second more.
Get informed, then get busy.
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