Constitution Daily

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Pennsylvania voting dispute in limbo, for now

March 9, 2018 by Lyle Denniston


The high-profile constitutional fight in Pennsylvania over voting for Congress this year will remain in limbo at least for the next few days, with no action at the Supreme Court in Washington, D.C., and a lengthy hearing but no decision in a federal court in Harrisburg, PA, on Friday.   The Supreme Court closed for the weekend without word on when it might act, and the federal trial court in the state’s capital city gave no indication of when it would rule.

At stake in this two-front legal confrontation are the political fortunes of both parties in the Pennsylvania balloting this year, with implications for the nationwide fight for control of the U.S. House of Representatives.  Also at stake is a potential confrontation between state and federal courts.

For the past three elections, Pennsylvania Republicans have taken 13 of the state’s 18 House seats and their Democratic rivals have taken the other five, but that string of outcomes may well be in for a shift of three or more seats to the Democrats, if a new map of election districts is used in balloting in May and November.

The fate of that map – the one drawn up last month by the Pennsylvania Supreme Court – now depends on what happens at the Supreme Court and in Harrisburg, as GOP leaders in the state pursue their claim that the court-drawn map violates the federal Constitution.

In Washington, the issue at this point is whether the court’s map will be blocked while state GOP legislative leaders pursue an appeal on the constitutionality of those election boundaries.  That issue is pending with Justice Samuel A. Alito, Jr., who handles emergency matters from the geographic area that includes Pennsylvania.   He has had all of the legal papers dealing with that issue since Tuesday, but as yet has not even indicated whether he will act alone or will refer the matter to the full Supreme Court; the choice is his to make.

The GOP challenge is two-fold: first, did the state court exceed its powers when it decided to draw new House districting lines to replace the existing lines from 2011, after it ruled that the seven-year-old map was a “partisan gerrymander” that violated the state constitution, and, second, did the state court fail to give the state legislature an adequate opportunity to drew new lines for the 18 districts to replace the 2011 map.  Both of those actions, the challengers contend, violated the U.S. Constitution’s Elections Clause.

In Harrisburg, the Elections Clause issues are the same before a three-judge federal district court.  It held a hearing Friday, lasting more than three hours, on a wide variety of outcomes ranging from one end of the legal spectrum (whether it should simply dismiss the GOP challenge to the state court’s map) to the other end of that spectrum (whether to strike down the state court map and order state officials either to use the districts that have been used since 2011 or to order state officials to delay the scheduled May 15 primary to give the state legislature time to draw up new districts on its own).

The two courts working on the issue are operating independently, but both appear to be aware that they are both involved.  During the Harrisburg hearing, according to news stories, one of the judges said that his office had called the Supreme Court early Friday to ask about the status of that proceeding, and he was told that “they’re pretty busy right now.”  It was not clear whether that meant the Justices were busy with the Pennsylvania controversy, or other things.

The GOP request to the Supreme Court to block the state from using the state court’s version of the congressional election districts is the second attempt.  Justice Alito turned down the first request last month, without even sharing the matter with his colleagues.

The fact that swift action has not come this time could mean several things.  It could be that he has decided to share the issue with the other Justices, and so the process has grown a little more complex, since the Justices are in a brief recess right now.

But it also might mean several other things, such as a desire to await the outcome of the case in the federal district court, or a split has developed among the Justices on what to do about the GOP request, or a decision has been made on what to do but that has drawn some dissents so time is being taken to write opinions, or as simple a fact as that some of the Justices are out of reach temporarily because of the recess.

If the full Court has been drawn in this time, the Justices may find themselves between the highly sensitive issue of whether they should second-guess a state court when it has made a decision based upon its own constitution, and the delicate issue of whether a change of election plans with the use of the state court’s substitute districts is going to cause chaos and confusion as candidates pursue their campaign activity in entirely new districts for many of them.

The GOP challengers to the state court map have been putting heavy emphasis on predictions of chaos and confusion, but state officials have countered that they have had significant success in adapting to the new districts and to acquainting candidates and voters about the outlines of the new election districts.

Among other developments, a total of 182 candidates are now circulating nominating petitions using the new district lines, but there have been complaints by GOP candidates that they have lost touch with familiar constituencies, making running more difficult.

Pennsylvania voters will go to the polls on Tuesday in one part of the state – District 18, in the southwestern corner.  But that contest is being waged, to fill a vacancy, using the 2011 lines that are part of the 2011 map struck down by the state Supreme Court.

The voters will next go to the polls in the state on May 15, for the primary election of House candidates in all 18 new districts.  State officials have argued that they will have time to educate the voters before that election occurs, but GOP challengers have argued that using the old map in one district next Tuesday and another throughout the state in May will contribute to voter confusion.

Among other arguments that GOP leaders have made to the federal court in Harrisburg is that state officials should be ordered to put off the May primary until August or September, to give the state legislature time to come up with a new map.   One difficulty with that is that the legislature is controlled by Republicans, but the governor is a Democrat who was a strong opponent of the use of the 2011 plan and might well veto a new legislatively drawn map if he deems it to be another partisan effort.

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


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