As Pennsylvania’s redistricting drama continues with newly filed federal-level litigation seeking to challenge the map issued Monday by the Pennsylvania Supreme Court, the new playing field brought about by the new map is already starting to have implications.
To recap, Pennsylvania’s 2011 congressional map was found to be unconstitutional in a terse per curiam order by the Pennsylvania Supreme Court on Jan. 22, following months of litigation, fact-finding at the Commonwealth Court level, and oral arguments in front of the state Supreme Court.
The high court’s ruling gave the General Assembly three full weeks to send a map to the governor for his approval, who then had – assuming the full period was used up – less than a week to determine whether or not to approve the map and send it to the state Supreme Court for final approval.
If either of those deadlines was not met, the court, through a court-retained special master, would issue a map on its own by Feb. 19, so as not to drastically interrupt the upcoming 2018 midterm primary, which it determined should still be held on its originally scheduled date of May 15.
The period between the court’s January order and the Feb. 9 deadline for the General Assembly time to petition the US Supreme Court to stay the implementation of the order through the 2018 election to give the General Assembly more time to develop a new map.
Their arguments at the time were threefold: first, that the Pennsylvania Supreme Court lacked the authority to find unconstitutional on state constitutional grounds federal legislative districts; second, that the court’s remedy of potentially having itself implement a map would be an extra-constitutional maneuver; and third, that the order – especially lacking a full opinion – did not give the political branches of the Commonwealth of Pennsylvania sufficient time to develop a map.
In its original Jan. 22 order, the state high court said that any map developed by the General Assembly must meet constitutional muster under the same requirements for state legislative districts. A full opinion explaining the constitutional fault of the 2011 map was said to follow.
In the interim, Republican leaders sought to have PA Supreme Court Justice David Wecht remove himself from the case due to prior statements he made opposed to partisan gerrymandering, arguing he held a prior bias before hearing the case.
A few days later, Justice Samuel Alito, who is the US Supreme Court Justice responsible for Pennsylvania’s federal region, denied the stay request on Feb. 5. On that same day, Justice Wecht refused to disqualify himself from consideration and further participation in the redistricting litigation.
Also on Feb. 5, Rep. Cris Dush (R-Jefferson) began to circulate a co-sponsorship memorandum seeking to gain support for legislation starting the impeachment process against the five Justices who ran as Democrats for their Supreme Court seats claiming “misbehavior in office” related to the redistricting litigation.
Two days later – and just two days before the Legislature’s deadline to get a map to Gov. Tom Wolf – the Pennsylvania Supreme Court issued its opinion, stating that any future Pennsylvania congressional maps must be developed first through “neutral criteria of compactness, contiguity, minimization of the division of political subdivisions, and maintenance of population equality among congressional districts,” before taking into consideration politics, incumbency protection and other factors.
It also stated that a new map, to properly meet the deadline imposed by the court, must pass through the General Assembly in the normal course of legislation.
While, at the time, the General Assembly had positioned a bill that could house the language for a new map should agreement arise, the late opinion and an unplanned snow day made the specific timeline all but impossible to meet.
Regardless, GOP lawmakers remained hopeful that a submission by the chambers’ presiding officers to the governor Feb. 9 could kick-start negotiations over a map and avoid court-drawn districts.
However, three days after receiving that map, Gov. Wolf rejected the submissions based on the fact that it did not meet the Feb. 9 requirement as laid out by the court and that according to a redistricting expert he retained, it was still too partisan.
The rejection, along with the assurance that the Pennsylvania Supreme Court would be the one to impose a new congressional map led Republican legislative leaders to claim the governor and the Pennsylvania Supreme Court had chosen chaos and would submit the Commonwealth to a constitutional crisis by allowing the court to usurp the executive and legislative map-making function and imposing extra-constitutional requirements on the consideration of legislation.
Meeting their self-imposed deadline of Feb. 19, the Pennsylvania Supreme Court issued a new congressional map developed by Special Master Nathan Persily that was agreed to by four of the seven Justices.
While Democrats almost uniformly found the new map to be fair, and outside experts claimed that it would more accurately reflect Pennsylvania’s competitive political realities, Republicans began litigating to halt the new map.
Meanwhile, the Pennsylvania Department of State started the process of getting congressional election materials prepared for candidates to begin circulating nominating petitions with a pushed-back date of Feb. 27.
The new map sent Republicans from all levels of government into a flurry with several incumbents releasing statements denouncing the new map, the National Republican Congressional Committee promising litigation, and even US Sen. Pat Toomey coming to the state Capitol to rail against the court’s action and say that there needs to be a real conversation about impeaching the state Supreme Court justices.
Wednesday, Republican legislative leaders began the process of once again seeking a stay from the US Supreme Court.
According to a joint statement from both House Speaker Mike Turzai (R-Allegheny) and Senate President Pro Tempore Joe Scarnati (R-Jefferson) the difference between this stay request and the one previously denied by Justice Alito is that the case is now clearer since the state Supreme Court handed down its map.
“Now that the opinions have been filed and the remedial map issued, we are again requesting the United States Supreme Court to issue a stay pending our appeal as the issues are now ripe," they said. “The application for a stay argues that the Pennsylvania Supreme Court violated the U.S. Constitution’s Elections Clause when it legislated from the bench adding new requirements for drawing congressional districts which do not exist in either the Pennsylvania Constitution or the US Constitution. The Pennsylvania Supreme Court further violated the Elections Clause by implementing a remedial phase that did not give the General Assembly an ‘adequate opportunity’ to enact a new map. The Pennsylvania Supreme Court’s eleventh-hour intrusion into the congressional electoral process cannot be permitted. It will cause significant voter confusion so close to the congressional election, not to mention the special election in the 18th Congressional District.”
Thursday, Senate Majority Leader Jake Corman (R-Centre) and Senate State Government Committee Majority Chairman Mike Folmer (R-Lebanon) filed an action in US District Court “to protect and defend the Constitution.”
“Our concerns stem from the attack on the Constitution initiated by the Pennsylvania Supreme Court – not the design of a map. What is at stake here is larger than the makeup of the Pennsylvania Congressional delegation. The state Supreme Court’s decision seizes power from the other branches of government. We are unwilling to acquiesce to the court’s attempt to hijack the functions of the legislative and executive branches," Sen. Corman said.
“In taking this matter to federal court, we are upholding our oath of office to protect and defend the state and U.S. Constitutions.”
The two state senators were joined by several members of the incumbent Republican congressional delegation from Pennsylvania.
Meanwhile, despite the litigation, Gov. Wolf’s office said that his administration is implementing the court’s new map and preparing for the coming primary election.
"Gov. Wolf is focused on making sure the Department of State is fully complying with the court's order by updating their systems and assisting candidates, county election officials, and voters prepare for the primary election," said press secretary JJ Abbott.
Candidates are also trying to make the decision as to whether to run in what could – should the US Supreme Court not grant a stay – be completely different congressional districts (and district numbers) than those that existed just a few days prior.
Already drawing a lot of attention is several Democrats announcing a run for the newly created 4th Congressional District comprising much of Montgomery County.
Already having announced are state Rep. Mary Jo Daley (D-Montgomery) and executive director of the gun control advocacy organization CeaseFirePA, Shira Goodman.
State Sen. Daylin Leach (D-Montgomery) was also said to be eyeing a run for the seat after previously announcing he would be seeking the job for the old 7th Congressional District.
Making the biggest move of all was state Rep. Madeleine Dean (D-Montgomery) who announced Thursday that she was suspending her campaign for the lieutenant governor nomination, despite having the most cash on hand of any candidate, to seek the 4th District seat.
“I wanted to use my track record as a state legislator to help Gov. Tom Wolf reform Harrisburg. But this once-in-a-lifetime opportunity to serve – this week’s creation of a new congressional district in the county I’ve represented and lived in my entire life demanded consideration," she said. “Pennsylvania sends 18 Congressmen and two Senators to represent us in Washington, and not one of them – not one – is a woman. We have a Republican-controlled Congress that isn’t doing its part to hold Donald Trump accountable – a majority that is undermining the education of our children, a woman’s right to choose, a delegation that refuses to support common-sense gun safety measures. With Donald Trump in the White House, our country faces a crisis – I feel an obligation to try and make things better.”
Current Congressman Brendan Boyle also clarified this week that he would be seeking to run for Congress in the new 2nd Congressional District, despite representing part of the 4th Congressional District.
In a district now seen as more favorable to Democrats, Auditor General Eugene DePasquale said he is contemplating a run for the 10th Congressional District.
Also putting things into a bit of a quandary, the special election currently going on in the 18th Congressional District (according to the old map) will have only short-term consequences in terms of incumbency since both candidates, state Rep. Rick Saccone (R-Allegheny) and Conor Lamb, are drawn into different and separate districts.
A newly drawn district in the Lehigh Valley is also causing state Rep. Ryan Mackenzie (R-Lehigh) to hedge his bets – he recently announced he would also file to run once again for his state House seat, a move drawing the ire of early primary opponents.
House Majority Leader Dave Reed (R-Indiana) is also questioning his previously announced Congressional bid after being put into a district along with powerful incumbent Republican congressman Glenn Thompson.
As of press time, it was unclear when a ruling on the requested stay would be made.
Jason Gottesman is the Harrisburg Bureau Chief of The PLS Reporter, a news website dedicated to covering Pennsylvania’s government