HARRISBURG — Lawmakers and others involved in Pennsylvania’s gerrymandering lawsuit have until Friday to make their cases to convince the U.S. Supreme Court to intervene or let the state Supreme Court’s decision stand.
U.S. Supreme Court Justice Samuel Alito set a 4 p.m. deadline for briefs in the case.
Alito is the justice who initially considers whether the U.S. Supreme Court should hear cases that originate in Pennsylvania.
His move to call for additional legal filings in the case brought by the League of Women Voters is being hailed as an encouraging sign by state Republican lawmakers. They hope the U.S. Supreme Court will move to stop a state Supreme Court order that threw out the existing maps and ordered the Legislature to redraw them by next Friday.
“For those who read the tea leaves of the Supreme Court, that’s a good sign,” said state Sen. John Gordner, R-Columbia County, the Senate majority whip.
Alito could have just rejected the appeal without asking for additional legal filings, he said.
Pennsylvania’s congressional maps are considered some of the most gerrymandered in the nation, with the 7th Congressional district being particularly notorious for looking like Goofy kicking Donald Duck.
In addition, in a state where there are more registered Democrats than Republicans, the GOP holds 12 of the state’s 18 Congressional seats. Another seat had been held by a Republican until former U.S. Rep. Tim Murphy resigned last year. A special election to name his successor is scheduled for next month using the existing district boundaries.
Most legal scholars had suggested that the U.S. Supreme Court would keep its hands off the decision, because the state Supreme Court’s order indicated it was ruling based on state law.
Even with Alito’s signal that he’s considering the case, it’s still far from clear that the U.S. Supreme Court will get involved, said Michael Dimino, a law professor at Widener Law Commonwealth.
“I thought there was no chance” that the U.S. Supreme Court would take the case, Dimino said.
Even now, “the smart money” would bet that the state Supreme Court’s decision will stand, he said.
Justin Levitt, a law professor at Loyola Law School in Los Angeles, agreed. “I am still very skeptical” that the U.S. Supreme Court will intervene, he said.
“It would be an enormously big deal” if the U.S. Supreme Court put a halt to the state Supreme Court’s order in the Pennsylvania gerrymandering case, Levitt said. “It would be a seismic power grab by the U.S. Supreme Court," he said.
The state Supreme Court said it will draw its own redistricting maps if the Legislature is unable to do the job by Feb. 9. In an order released last Friday, the state Supreme Court indicated it’s hiring Nathaniel Persily as an advisor to help create new Congressional maps if the court needs to do so. Persily is a redistricting expert at the Stanford Law School.
For his part, Gov. Tom Wolf has announced that he’s hired Moon Duchin, math professor from Tufts University, to determine whether any maps created by the Legislature are non-partisan enough to pass muster.
Wolf has spent the last week holding listening sessions around the state on the gerrymandering issue. His office announced Thursday that the state has rolled out a website, governor.pa.gov/fair-maps, to allow the public to weigh in on how the maps might be redrawn.
Republican lawmakers are arguing that the U.S. Constitution says that redistricting is the job of the Legislature so the Pennsylvania Supreme Court is overstepping its bounds by threatening to redraw the maps if the Legislature can’t or won’t.
Gordner called the state Supreme Court’s order “baffling” in that it’s creating a power for the court that’s not in the Constitution.
To make matters even more challenging, the state Supreme Court hasn’t provide a clear description of what it would consider acceptable, Gordner said.
The court’s order only indicates that an acceptable plan would: have congressional districts composed of compact and contiguous territory; have districts as nearly equal in population as practicable; and not divide any county, cities and other municipalities needlessly.
That guidance is so vague that it provides lawmakers with leeway to create dozens of potential maps, Dimino said.
“You still have to have a human to figure out” which of those maps to use, he said.
In court documents, attorneys for the League of Women Voters indicate that they’ve provided the state Supreme Court with computer simulations of 500 possible map options that could be used to replace the existing congressional maps.
In a court filing Wednesday, attorneys for Senate President Pro Tem Joseph Scarnati said that Senate Republicans won’t turn over any data to help the state Supreme Court draw maps out of concern that it would be illegal for the court to do the job.
In a separate filing, attorneys for the General Assembly note that all of the data available dates from 2011 and is available on a state-created redistricting web site.
Republicans in the General Assembly aren’t the only ones objecting to the state Supreme Court’s move.
The state Republican Party, and 11 of Pennsylvania’s 12 incumbent Republican members of Congress – Mike Kelly, Scott Perry, Glenn Thompson, Ryan Costello, Patrick Meehan, Bill Shuster, Tom Marino, Lou Barletta, Keith Rothfus, Charles Dent and Lloyd Smucker — have asked the U.S. Supreme Court to step in.
In addition, the Republican secretaries of state from Alabama, Arizona, Arkansas, Kansas, Missouri and South Carolina, filed court documents arguing that the state Supreme Court’s timeline is impossible to meet and that the case should be put on hold until the U.S. Supreme Court rules on other gerrymandering cases from other states.
Thirty-six Republicans from across the state have also weighed in, saying that the state Supreme Court’s move to force the redrawing of the maps harms them because they’ve been working for months to help candidates campaign based on the existing maps, said Lawrence Tabas, the attorney for the group of Republicans.
His clients include: Cynthia Robbins and Ginny Steese Richardson, both of Mercer County; Carol Lynne Ryan of Lawrence County; Hugh H. Sides of Lycoming County; Mark Harris, the former Republican Party chairman in Snyder County; and Jacqueline D. Kulback, the Republican Party chairwoman in Cambria County.
“They’ve been spending time and money” to help candidates run for office, Tabas said. “Their rights are being wiped out.”
Tabas declined to speculate about what the Supreme Court might do. But he said that in the past, both the state and U.S. Supreme Court have allowed elections to take place with maps that judges determined were illegal if the decision was reached too close to an election for new maps to be created.
John Finnerty is the statehouse reporter for CNHI, the parent company of The Daily Item. Email comments to firstname.lastname@example.org. Follow Finnerty on Twitter @cnhipa.