How the Pennsylvania election map challenge could unfold

Arguing that the use of the new congressional districting map drawn up by the Pennsylvania Supreme Court will lead to a “constitutional crisis,” the two Republican leaders of the state’s legislature will shortly begin a challenge to it in federal court.  The lawsuit, the two lawmakers have said publicly, will claim that the state court “is usurping the authority of the legislature and the Executive Branch” of the state.

At the center of the new lawsuit, perhaps reaching a federal court in Philadelphia as early as Wednesday, will be these words that have been in the federal Constitution’s Article I since 1789: “The times, places and manner of holding elections for Senators and Representatives shall be prescribed in each state by the Legislature thereof; but the Congress may at any time by law make or alter such regulations…”

Two conflicting views of those words will now play out in the lawsuit that the two GOP legislative leaders have said they will file: within a state, does only the legislature – with the approval of the governor – have power to draw up new districts for electing members of the U.S. House of Representatives, or do the courts have power to create such districts if the legislature fails to do so after existing districts have been ruled invalid under the state constitution?

Behind the answer that emerges from that constitutional question is a very real political reality in Pennsylvania: if the GOP lawmakers prevail, they are likely to preserve congressional districts that have given their party’s candidates victories in three elections in 13 of the 18 House districts, and if their challenge fails, the Democrats have a chance of capturing at least eight of the seats, and maybe nine or 10.

In earlier filings in several state and federal courts as the congressional redistricting dispute unfolded in Pennsylvania, the state’s Republican legislative leaders have argued that the words of Article I’s Elections Clause mean that there is no role for a state court to play when new election districts are drafted following the census that is taken every 10 years.

On Monday, without analyzing those words, the Pennsylvania Supreme Court issued its own version of the House of Representatives election map to be used in May and November to choose the state’s 18 Representatives.  The majority opinion said the state constitution gave it full authority to do that when the legislature failed to act to create a map that would satisfy the Pennsylvania constitution’s guarantee of “free and equal” elections. The state court had given the legislature 18 days to devise a map to replace a 2011 version that the court ruled was a partisan gerrymander intended to “dilute the vote” of Democrats in Pennsylvania.

In filings in state and several courts by advocacy groups and by Democratic voters in the state, they have taken the position that prior rulings by the Pennsylvania Supreme Court and by the U.S. Supreme Court make explicit that the legislature’s powers under the Article I assignment are subject to the limitations on government action spelled out in a state constitution and that, when those limitations are violated, a state court has authority to provide a remedy with its own version. 

The GOP legislators’ lawsuit very likely will seek to make the argument that the founders in writing the Elections Clause intended that the only check on the state legislature’s power to draw House districts was to be a political one – a backup veto power for Congress.  

Interestingly, a variation of that argument won the day for the 2011 House map in Pennsylvania last month when a three-judge federal district court in Philadelphia, dividing 2-to-1, rejected a claim of partisan gerrymandering in violation of the federal document’s Elections Clause.

Without saying anything about the similar challenge that was then unfolding in the state courts under the Pennsylvania constitution, the majority opinion in that federal case said flatly: “The language and history of the Clause suggest no direct role for the courts in regulating state conduct under the Elections Clause….The task of prescribing election regulations was given, in the first instance, to political actors who make decisions for political reasons….The Elections Clause leaves that to state legislatures and to Congress – bodies directly accountable to the people.”  (Those are excerpts from the lead opinion in the January 10 ruling in Agre v. Wolf.)

Can those comments, in denying a role for “courts” in congressional districting, be read to mean state courts, too?   If one side in the federal case seeks to read it that way, the other side no doubt would reply that the only court whose powers over redistricting were explicitly at issue in the Agre case was the federal court itself.   If one side were to stress that the Elections Clause meant to assign redistricting only to those that are “directly accountable to the people,” the other side would probably reply that in Pennsylvania, judges, too, are elected by the people.

It is a reality that the history of congressional redistricting as a federal constitutional issue provides some support for both sides in the arguments that will now unfold when the state Republican lawmakers pursue their new challenge.   Having lost in state court on a similar argument under the state constitution, the GOP legislators now have the option only of pursuing the argument under the federal Constitution.

The outcome in the district court may not be an easy one for the judges assigned to the case.  Under federal law, such a lawsuit will go before a three-judge panel, rather than the usual assignment in most federal cases to a single judge.   And any appeal from a three-judge court ruling on redistricting goes directly to the Supreme Court, bypassing the middle-level federal court of appeals – in this case, the appeals court for the Third Circuit.

It seems highly likely that the GOP legislators’ lawsuit would wind up in the Supreme Court, but it would have to be on a very fast schedule in order to affect this year’s elections in Pennsylvania.

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.