February 11, 2018; Washington Post
A constitutional crisis is raging in Pennsylvania, as Republicans seek to hold onto their electoral advantage despite facing a court order to redraw the state’s congressional district lines. Last month, the Supreme Court of Pennsylvania ruled that the 2011 district map violated the Pennsylvania Constitution, and ordered the state legislature to submit a revised map. They have done so, but as the Washington Post’s Chris Ingraham observes, the new map, although it looks very different, does not address the core issue of drawing district lines that unjustly favor one party over the other.
According to Ingraham, “The new districts generally respect county and municipal boundaries and don’t ‘wander seemingly arbitrarily across Pennsylvania,’ as the state’s Supreme Court wrote. Unfortunately for Pennsylvania voters, the new districts show just as much partisan bias as the old ones.” With the possibility of an independently drawn map looming, legislators have threatened to impeach the judges who ruled against them.
It might be possible to avoid a showdown if the governor and legislature compromise on a district map. A last-minute compromise is always possible, of course, but the legislature’s proposal is not an auspicious beginning. Brian Amos, a redistricting expert at the University of Florida, told Ingraham, “Compared to the previous decade’s plan, it was an improvement in measures like compactness and respecting county and municipal boundaries. But there was still a strong Republican bias, which is why the congressional and State Senate plans were struck down for being gerrymanders.”
This point is actually an important one. As NPQ has noted previously, on a national level, partisan gerrymandering is not illegal. Pennsylvania is different. Writing for the majority in a 139-page opinion released last week, Justice Debra Todd wrote,
The people of this Commonwealth should never lose sight of the fact that, in its protection of essential rights, our founding document is the ancestor, not the offspring, of the federal Constitution. We conclude that, in this matter, it provides a constitutional standard, and remedy, even if the federal charter does not. Specifically, we hold that the 2011 Plan violates…the Free and Equal Elections Clause of the Pennsylvania Constitution.
Because the case rested on the state constitution, the US Supreme Court let the order stand.
Pennsylvania Republicans have not yet accepted defeat. The new map adheres more closely to municipal and geographic boundaries, but because Pennsylvania’s Democrats (like most states’ Democrats) are mostly packed into two large cities, the new map is actually more likely to produce electoral outcomes that, in terms of congressional seats, deviate greatly from the percentage of votes that the two parties receive statewide. Data analysis revealed that “the median district moved 1.7 [percentage points] towards Republicans.” This result is achieved by effectively packing more Democratic voters into a few heavily Democratic districts, helping Republicans have majorities in a greater number of districts, even as the state as a whole is split pretty evenly statewide.
Pennsylvania’s Democratic governor, Tom Wolf, is unlikely to approve this map. He and the legislature have until Thursday to reach an agreement. If they do not, a Court-appointed independent expert will redraw the state district map for them—and that’s where constitutional turmoil could arise.
Pennsylvania Senate President Joseph Scarnati’s lawyer wrote, “In light of the unconstitutionality of the Court’s Orders…Senator Scarnati will not be turning over any data identified in the Court’s Orders.” Then, writes Garrett Epps of the Atlantic, “Republican Commonwealth Representative Cris Dush released a memo to his fellow legislators demanding the impeachment of the five members of the commonwealth court (all Democrats) who voted in the majority.” Dush wrote that “This Order overrides the express legislative and executive authority” because it struck down the Redistricting Act of 2011 on the “sole basis” that it violated the Constitution.
Many people were shocked by this turn of events. “This is one of those moments where you teeter from democracy to banana republic,” said Tommy Vietor, a former national security advisor. Michael Li, senior counsel of the Democracy Program at Brennan Center for Justice, told USA Today, “The sort of out-and-out ‘Screw-you’ [to the court] is unprecedented…it’s deeply disturbing because they’re attacking institutions and undermining their credibility.” Dush told CNN that “his sense of the GOP-led state Senate is that if the House approves his measure calling for the justices’ impeachment, ‘there’s a mood over there” to do the same.’”
Some local activists felt the same, and showed up to Dush’s office with signs, saying, “We want an independent group,” and chanting “Shame! Shame!” as Dush fled the audience.
Part of the reason this contest is so bitter is that a change in the composition of Pennsylvania’s congressional delegation could help flip control nationally of the US House of Representatives, where five Republican incumbents have decided not to run again. In 2012, Democrats won 51 percent of the vote, but only five of the commonwealth’s 18 congressional seats. A new map could change that ratio.
Pittsburgh Foundation president and CEO Maxwell King said, “It’s all part of our concern about the strength of the civic fabric. More and more voters feel as if they don’t matter, they don’t have a role. I can’t think of anything more threatening to the civic strength of the community than that.”
Some political analysts were more acerbic. Former White House speechwriter Jon Lovett said, “What they’ve discovered is a lack of interest among voters…removed the social barriers to deeply immoral behavior on the part of politicians…You get rid of the shame, and the politics was simpler than we could’ve imagined.” The role of nonprofits, active citizenry, local journalism, and other civic elements of holding politicians to account for their behavior shows itself to be most critical when behavior like Scarnati’s and Dush’s tests the boundaries of allowable conduct.
The vicious cycle of voter disengagement and disenfranchisement is an issue of civic culture and civil rights, but wherever state legislatures are disconnected from the people they serve, populations and nonprofits suffer alike. If judges can be impeached for unpopular decisions, will the tear in our civic fabric be irreparable? The Pittsburgh Foundation filed an unusual but influential amicus brief in the initial state ruling; they and other civic groups have yet to weigh in on subsequent events.—Erin Rubin