Pennsylvania will have to redistrict its congressional districts this year

The Washington Post’s Supreme Court reporter Robert Barnes reported Sunday on the status of gerrymandering cases pending before the U.S. Supreme Court. Opponents of gerrymandering keep winning, but it might not affect 2018:

Opponents of gerrymandering have won a historic string of victories in the courts recently, yet millions of voters will cast their ballots this fall in districts that judges have declared to be unconstitutional.

Federal courts in Texas, North Carolina and Wisconsin found that either politics or intentional discrimination played an unacceptable role in drawing electoral lines and ordered new districts in place for the 2018 elections.

But the Supreme Court stopped them all. The justices are traditionally reluctant to order changes in an election year, for one thing. And they have never thrown out a state’s redistricting plan because they found it so infected with partisan bias that it violates voters’ constitutional rights.

Unless and until it does — the subject is under review at the high court — the justices have routinely told states found to be offenders that they do not have to immediately redraw the maps, which almost surely means they won’t be in place for the 2018 elections.

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The most consequential of the stay requests is at the Supreme Court right now, and the decision could play a role in determining which party controls the House after the November midterm elections.

The Pennsylvania Supreme Court last month ruled that the congressional map drawn by the Republican legislature in 2011 “clearly, plainly and palpably violates” the commonwealth’s constitution. It demanded a quick redrawing of the lines so that 2018 elections could be held in fairer districts.

But Republican legislative leaders in Pennsylvania have asked the U.S. Supreme Court to put the decision on hold.

In somewhat of a surprise today, Justice Samuel Alito, probably the most partisan of the justices, denied the request of Pennsylvania Republicans who had asked the Supreme Court to stay the state supreme court ruling in partisan-gerrymandering case. Supreme Court refuses to block Pa. ruling invalidating congressional map:

The Supreme Court on Monday denied a request from Pennsylvania Republicans to delay redrawing congressional lines, meaning the 2018 elections in the state will probably be held in districts far more favorable to Democrats.

Justice Samuel A. Alito Jr., who hears emergency requests from the state, turned down the petition without obvious objection from his colleagues.

It is the most significant victory by critics of the way most congressional and legislative districts are drawn and a sign that their efforts will be felt as early as this fall’s midterm elections.

The justices are traditionally reluctant to order changes in an election year [the Purcell rule], for one thing. And they have never thrown out a state’s redistricting plan because they found it so infected with partisan bias that it violates voters’ constitutional rights.

Unless and until it does — the subject is under review at the high court — the justices have routinely told states found to be offenders that they do not have to immediately redraw the maps, which almost surely means they won’t be in place for the 2018 elections.

But the previous decisions have been by federal courts weighing how gerrymandering might violate the U.S. Constitution. The Pennsylvania case was brought under the commonwealth’s constitution, and the U.S. Supreme Court generally does not interfere in such decisions.

Those challenging gerrymandering now see the state route as perhaps a quicker way to their goal.

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Pennsylvania’s Republican legislative leaders told the U.S. Supreme Court that, just as the court decided to reverse the Florida Supreme Court in Bush v. Gore, there is a federal issue at stake. [Bush v. Gore expressly cautions that it is an extraordinary case not to be cited as precedent.]

The Constitution’s Elections Clause provides that the “Times, Places and Manner” of congressional elections shall be decided by the “legislature” of each state, or by Congress. That leaves no room for the Pennsylvania Supreme Court to usurp the legislature’s power under vague interpretations of the state’s guarantees of free speech and equal protection, they say.

Justice Alito’s denial of the stay request without referring it to the full court indicates that he believes the full court would reject the state’s argument in this case.

UPDATE: Mark Stern at Slate explains:

SCOTUS rejected a very similar theory in 2015’s Arizona State Legislature v. Arizona Independent Redistricting Commission, or AIRC. In that case, Arizona voters passed a constitutional amendment that stripped redistricting power from the state legislature and assigned it to a nonpartisan commission instead. Arizona legislators sued, alleging a violation of the Elections Clause.

The court rejected their claim. It held that the clause did not grant exclusive redistricting authority to the state legislature. The majority explained that “nothing in that clause instructs, nor has this court ever held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the state’s constitution.” Put differently, a state legislature may be compelled to comply with the state constitution’s limits on redistricting—even if that constitution abolishes the legislature’s redistricting power altogether.

The Pennsylvania legislature now now faces an expedited order to redistrict the state’s congressional districts, and if they cannot agree on a new map, the state supreme court will appoint judges redistrict for them.

Lawless Tea-Publicans are refusing to comply with the court’s order to turn over election data. Pa. state Senate leader refuses court order on redrawing district maps:

The Pennsylvania state Senate president pro tempore said Wednesday he will not cooperate with the state Supreme Court’s request to turn over data after it found that the state’s congressional map was unconstitutionally gerrymandered.

Joe Scarnati (R) said he wouldn’t turn over the data requested by the court.

“In light of the unconstitutionality of the Court’s Orders and the Court’s plain intent to usurp the General Assembly’s constitutionally delegated role of drafting Pennsylvania’s congressional districting plan, Sen. Scarnati will not be turning over any data identified in the Court’s Orders,” his lawyers wrote in a letter to the court.

Now that the U.S. Supreme Court has rejected the Pennsylvania Tea-Publicans’ argument, will they continue to defy the lawful orders of the court? Stay tuned.

UPDATE: The Secretaries of State of Alabama, Arizona, Arkansas, Kansas, Missouri, and South Carolina filed this amicus curiae brief in the U.S. Supreme Court in the Pennsylvania U.S. House lawsuit over partisan gerrymandering.

Why did Arizona ecretary of State Michele Reagan file an amicus brief in this case? Hoping that the Court backs away from its Arizona State Legislature v. Arizona Independent Redistricting Commission, or AIRC decision? Fail.

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