Second Pennsylvania GOP challenge to new voting map

Ten elected Republican legislators, state and federal, in Pennsylvania asked a federal court on Thursday to issue an immediate order barring the use of a new districting map drawn by the state Supreme Court in this year’s election of 18 members of the U.S. House of Representatives.

The claim of a violation of the federal Constitution closely parallels arguments being made by the two top GOP state legislators in asking the U.S. Supreme Court to block the use of those same election districts.  (The Justices have taken no action on that separate plea, as of Thursday evening, probably because of a delay in the filing procedure.)

Just as soon as the new lawsuit by different legislators was filed in the federal district court in Harrisburg, the advocacy group and voters who won the case in state court leading to the drafting of the new districts sought to enter the case to defend those boundaries.  They did so, they said, to protect the victory they had won in the state’s highest court.

The new lawsuit was filed by the GOP leader in the state Senate, by the GOP chairman of the state Senate committee that handles redistricting, and by eight current GOP members of the House.

One of the House members, Rep. Lou Bartletta of Hazleton, is leaving that seat to run for the U.S. Senate seat now held by Democratic Sen. Bob Casey.  The other seven House members are running for reelection, and each claims that their districts have been significantly redrawn under the state court’s plan.

Their lawsuit is aimed at two state officials involved in running elections in Pennsylvania.  Those two officials no doubt will defend the court plan, but they did not take part in the state court case that led to that plan, and that is why the League of Women Voters and a group of Democratic voters say they will be able to make a better defense of the map.

The lawsuit seeks four things: first, the naming of a three-judge trial court in Harrisburg – the kind of special court that federal law requires for congressional redistricting cases; second, a temporary order to block use of the plan while their lawsuit goes forward; third, a more lasting order to declare that the plan violates the Elections Clause of the U.S. Constitution’s Article I, assigning the task of drawing congressional district lines, and fourth, an order to use this year the same 2011 map that has been used in three elections.

The filing makes two constitutional claims: that the court’s map violates the Elections Clause because the state court had taken over the role of the legislature in drawing the new lines, which it calls a “usurpation” and that the state court had not given the legislature ample opportunity to exercise its powers under the Elections Clause to draw new boundaries.

The state Supreme Court, voting 4-to-3 to craft a map after finding that the state legislature had failed to act to cure the state constitutional violation found by the court, ruled that the 2011 plan used in three congressional elections was invalid as a “partisan gerrymander” intended to give GOP candidates a distinct advantage, diluting the votes of Democratic voters in the state.

In those three elections, the GOP candidates have won 13 seats and the Democratic candidates five; voting statewide has been about evenly divided between the two major parties.   Experts in election law who have analyzed the new map have been predicting a new division of ten to eight in the Republicans’ favor, or an even nine to nine split.

In the GOP lawmakers’ new challenge, they complained that the court’s new lines are themselves driven by partisan desires of the court’s majority.  “Far from being free of politics,” the document says, “it appears that every choice made in the court-drawn plan was to pack Republicans into as few districts as possible, while advantaging Democrats.”  The filing contains colored maps seeking to prove that point.

In seeking to join in the lawsuit to defend the plan, the League of Women Voters and the state voters disputed the argument that the new map is a gerrymander that favors Democrats.  Their filing said: “Empirical analysis of the [court’s] remedial plan confirms that it exhibits no partisan bias in favor of either party.  If anything, it slightly favors Republicans, likely due to the small natural advantage that Republicans have due to clustering of Democratic voters in large cities.”

Their document told the court that, if they are allowed to intervene in the case, they will be making arguments that the case should be thrown out as “frivolous” and as having “multiple jurisdictional and procedural bars.”  It did not spell out those potential defects.

Even though there are now two challenges to the court’s plan unfolding – in Harrisburg and in the nation’s capital – the two can proceed simultaneously because each involves different parties on each side.

Meanwhile, in the state court case, the two top Republican leaders in the state legislature on Thursday asked the state Supreme Court to put its new ruling and its new map on hold while the Supreme Court in Washington, D.C., considers their challenge.  The state court has previously denied such a request, but the challenging lawmakers appear to have been required to pursue such a request anew in order for them to get their plea formally filed with the Justices in Washington.   As of Thursday night, it still was not docketed there.

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.