The Senate State Government Committee on Monday unanimously advanced a vehicle bill for any redistricting plan that may or may not be agreed to in the coming days.
The positioning of the bill was said to be important due to the tight timeline given by the Pennsylvania Supreme Court: the General Assembly has until Feb. 9 to get a new map to the governor based on the criteria used for the drawing of state legislative districts to prevent the court from using a newly appointed special master to draw a court-approved map based on non-partisan criteria.
The bill, Senate Bill 1034, sponsored by Senate President Pro Tempore Joe Scarnati (R-Jefferson) and Senate Majority Leader Jake Corman (R-Centre), is a shell by design.
As approved by the committee on Monday, the bill essentially just strikes out the current legislative districts and reserves the section to be refilled at a later date.
According to legislative sources, there is currently no agreement on any map that would redraw the Commonwealth’s 2011 congressional map and the bill was not necessarily drafted in anticipation of a pre-deadline agreement.
“The intent of this bill is obviously to move the process. There is no sleight of hand or trickery,” Sen. Scarnati said about the legislation Monday. “What we have gotten is a bad opinion from the state Supreme Court with an unconstitutional remedy. So, we are moving the bill; it's a shell bill to move the process in order to accommodate the bad decision and we will address the unconstitutional remedy.”
Others were palpably frustrated, especially State Government Committee Majority Chairman Mike Folmer (R-Lebanon), who said the litigation resulting in the current redistricting process put on hold ongoing reform efforts he was planning on addressing this session absent court intervention.
“Redistricting reform has long been a goal of mine and I was looking forward to scheduling hearings of the State Government Committee across the Commonwealth on proposed bills to change how we redistrict,” he said. “However, one of the advocacy groups chose to file a lawsuit to challenge the constitutionality of the 2011 lines. While this was their right, it led to the postponement of hearings on potential redistricting reform.”
He said closed-door discussions with advocacy groups left him additionally frustrated as they failed to answer some of his more pressing questions about reform bills currently introduced in the General Assembly, particularly what happens if a citizens’ commission cannot agree to a map, and a special master has to step in and create a map to a court’s satisfaction.
“How is having one person decide how those maps are drawn be considered reform?” he asked. “Thanks to the Pennsylvania Supreme Court, we may soon have that answer...I hope nobody tries to tell me that that’s reform. Here we are, faced with an unreasonable timeline that does not allow us for openness and transparency, no details as to what lines might look like, little rationale for how the court felt like the Constitution was violated or how it might evaluate if any new maps meet its currently secret definition of what’s constitutional – and the distinct possibility that one person might be redrawing Pennsylvania’s congressional maps. If this is the reform those who have been scorching me in the press and on social media want, then we’ll see.”
The Pennsylvania Supreme Court announced on Friday the retention of Nathan Persily, a James B. McClatchy professor of law at Stanford Law School, “as an advisor to assist the court in adopting, if necessary, a remedial congressional redistricting plan.”
According to his Stanford biography, Persily has served as a special master or court-appointed expert to draw congressional and/or legislative districts in Georgia, Maryland, Connecticut, New York and North Carolina.
Sen. Andrew Dinniman (D-Chester) noted, however, it was the secret political process used that was the constitutional flaw in the maps – something that should not be repeated regardless of who draws the new and future maps.
“The way it was done last time gave very little input for the citizens or for the Legislature,” he said. “It was the actions of this Legislature that forced the court to intervene. When we don’t follow the Constitution about congruity about districts, when we have districts that were pushed – like Rep. Meehan's district – that were pushed by certain individuals here...we needed the courts to step in because we didn’t follow the Constitution in the first place.”
The movement of the bill at the state level occurred while the Legislature awaits a potential stay in the enforcement of the Pennsylvania Supreme Court’s order from the US Supreme Court.
While Sen. Scarnati and Speaker of the House Mike Turzai (R-Allegheny) applied for a stay to the nation’s highest court last week, no official stay decision has come down.
Meanwhile, other parties have joined in on that federal litigation through the filing of amicus briefs with the US Supreme Court.
Among them, joining with the Republican legislative leaders in support of a stay, are the Republican Secretaries of State of Alabama, Arizona, Arkansas, Kansas, Missouri and South Carolina.
Their brief agrees with the Pennsylvania Republican leaders who argued that the state Supreme Court’s order of a map redraw by Feb. 15 could “cause chaos in their states” should similar injunctive relief be granted in similar cases.
“The expectation of voters and candidates will be changed on short notice, and the interests of overseas and uniformed services voters will have to be protected,” they wrote. “Strict federal time limits govern the transmittal of absentee ballots to overseas and uniformed service voters, and amici are legally responsible for compliance with those time limits.”
Also intervening, respective of the other states and each other, were Pennsylvania’s Republican Party and – as a group – Pennsylvania’s Republican congressional delegation.
Delegation members said they believe the stay should be granted since the members and voters already engaged in the current political process will be irreparably harmed by the rapid redraw as outlined in the state supreme court’s order.
“The state court’s directive will forestall and impede the possibility of a full and vigorous campaign in the various congressional districts, which will not only harm the candidacy of many of the Amici Members, but will also significantly hamper the ability of the Amici Members’ constituents and voters to fully engage in the political process,” they wrote.
Gov. Tom Wolf and Lt. Gov. Mike Stack also have attorneys of record listed on the US Supreme Court docket, but have not made any briefs made publicly available.
Last week, in announcing the appointment of his own expert to evaluate any map delivered to him by the Legislature, the governor doubled down on his map expectations.
“I’ve made it very clear: This is our chance to have a fair map – if the US Supreme Court doesn’t issue a stay to the Republicans, then I’m going to have the ability to make sure, finally, we get a fair map with the US House of Representatives seats here in Pennsylvania,” he said. “I’m not willing to play any more games and the people of Pennsylvania are tired of gerrymandering – it’s time to move to a fair map. That’s what I’m dedicated to, that’s what I promised, and that’s what I’m going to deliver.”
Jason Gottesman is the Harrisburg Bureau Chief of The PLS Reporter, a news website dedicated to covering Pennsylvania’s government