This month the U.S. Supreme Court is expected to deliver two highly anticipated decisions on cases involving partisan gerrymandering — one from Wisconsin and the other from Maryland.
The central question in both cases is: How much politics is too much when it comes to drawing the boundaries of a voting district?
In the past, the court has said it couldn’t answer that question.
“All of the standards that have been proposed to date are unmanageable, indiscernible or both,” said the late Justice Antonin Scalia during the decision announcement the last time the court took up the issue in 2004.
But earlier this year, the Pennsylvania Supreme Court delved into the same question of how much is too much and gave an answer.
It declared the state’s congressional map an illegal partisan gerrymander and ordered a new one that’s much more compact and contiguous while dramatically altering the state’s political landscape. Where the old map consistently yielded a 13-5 split in favor of Republicans, analysts predict the new version will help Democrats gain seats in the House of Representatives in this year’s mid-term.
In the majority decision from the Pennsylvania Supreme Court, Justice Debra McCloskey Todd wrote, “While federal courts have, to date, been unable to settle on a workable standard by which to assess such claims under the federal Constitution, we find no such barriers under our great Pennsylvania charter.”
So how will potential decisions from the U.S. Supreme Court affect the ruling in Pennsylvania?
Russell Wheeler, a visiting fellow at the Brookings Institute, says, in the short term, it won’t have much of an impact on the commonwealth.
“Whatever it comes out, I don’t think it’s going to have much of an impact on the Pennsylvania situation,” said Wheeler.
Wheeler says the fact that the Pennsylvania decision was based on the state constitution — and the fact that the U.S. Supreme Court twice declined to get involved — means the state’s new congressional map is not under threat.
This has proponents of the change feeling confident.
“We’re pretty well set up in Pennsylvania, at least for now, no matter how this U.S. Supreme Court comes down,” said Mimi McKenzie, legal director at the Public Interest Law Center, who represents the plaintiffs in the Pennsylvania case.
She expects one more possible challenge to the Pennsylvania decision later this month, but says it’s highly unlikely the U.S. Supreme Court will consider the case.
As for the Wisconsin case, McKenzie’s hopeful that the U.S. Supreme Court will uphold the lower court’s ruling that districts were unconstitutional. She says the decision could come down to Justice Anthony Kennedy, who is often a swing vote.
“I would like to see voters in Pennsylvania have multiple avenues for pursuing a claim that a particular map violates either the Pennsylvania Constitution or the U.S. Constitution,“ said McKenzie. “But at the same time, I take some comfort that if Justice Kennedy doesn’t come through for voters that at least in Pennsylvania under our Pennsylvania constitution we still have the ability to protect voters.”
Ugly shapes
Months after the Pennsylvania ruling, some are still unsettled over the decision — saying the Pa. Supreme Court left too much subjectivity in how to evaluate if a map is legal.
GOP defendants in the case maintain they followed the rule of law at the time the map was drawn in 2011. They say the court’s decision was politically motivated, coming from a bench comprised mostly of Democrats.
“People can say we made really ugly shapes, but that is a radically different perspective in my head than saying we violated the law,” said Drew Crompton, chief of staff for Senate President Pro Tempore Joe Scarnati.
Crompton believed from the beginning that the redistricting lawsuits against the state should have been delayed until guidance came from the U.S. Supreme Court, which has been long expected to occur this summer.
A federal lawsuit challenging Pennsylvania’s map was decided in favor of Republican lawmakers in January, but the state court went the other way shortly after.
Crompton says he’s still looking for clarity from the high court.
“What I don’t want is a subjective standard that leads us into a huge parade of additional litigation,” said Crompton. “As lawyers and as citizens we should want our judges to call balls and strikes even if it’s against their philosophical views.”
It remains to be seen how deep the U.S. Supreme court will wade into the issue, and if they’ll be able to come up with a clear and precise standard of when state legislatures go too far.
“Until now, we really haven’t had an administrable standard that’s come from the courts that separates permissible uses of partisanship from impermissible uses of partisanship,” said Nate Persily, a redistricting expert and Stanford Law professor.
Persily was the one appointed by the Pennsylvania Supreme Court to advise in redrawing the state’s congressional districts earlier this year.
He said he couldn’t speak directly about the Pennsylvania case.
Commenting generally, he said decisions from the U.S. Supreme Court on partisan gerrymandering will have ripple effects across the nation in the long term, especially after the 2020 census when all states will be redrawing their congressional maps.
“This could lead to full employment for redistricting lawyers as well as significant amount of litigation in the states, and it could also reset the rules for fair representation in the country,” said Persily.
Even if the high court doesn’t come up with a clear standard, Persily says the court may still police the most egregious cases.
