PA Supreme Court Strikes Down 2011 Congressional Redistricting Map as Unconstitutional

Today, the Pennsylvania Supreme Court in a 5-2 decision struck down the 2011 congressional redistricting map as unconstitutional under the Pennsylvania Constitution and barring its use in the regular primary and general elections this year. As reported in an earlier post, Willig, Williams & Davidson wrote an amicus brief on behalf of nine union clients, arguing that the map is unconstitutionally gerrymandered. The decision does not affect the special election to fill the vacancy in the 18th Congressional District in western Pennsylvania. Justices Saylor and Mundy filed dissenting opinions, and Justice Baer concurred in the Court’s conclusion that the districts are unconstitutional but dissented to the speed by which the Court seeks to complete redistricting.

Under the terms of the Order, the Court has permitted the Pennsylvania General Assembly to submit a congressional redistricting plan that satisfies the requirements of the Pennsylvania Constitution for consideration by the Governor on or before February 9, 2018. If the Governor accepts the General Assembly’s congressional districting plan, it shall be submitted to the Court on or before February 15, 2018. In order to meet constitutional muster, any new congressional redistricting plan must consist of districts composed of compact and contiguous territory; as nearly equal in population as practicable; and which do not divide any county, city, incorporated town, borough, township, or ward, except where necessary to ensure equality of population. This standard is the one articulated in the Pennsylvania Constitution for crafting legislative districts for the state house and senate.

The Court also explained the procedure for congressional redistricting in the event the General Assembly does not submit a redistricting plan or if the Governor does not approve of it. In such an event, the Court will adopt a plan based on the evidence presented in the Commonwealth Court. In anticipation of such a possibility, the Order allows the parties and intervenors to submit proposed redistricting plans to the Court by February 15, 2018. Finally, the Court directs the Governor, Lt. Governor, and the General Assembly to expect that a congressional redistricting plan will be available by February 19, 2018 and take all measures, including adjusting the election calendar if necessary, to ensure that the May 15, 2018 primary election takes place as scheduled under that remedial districting plan.

In his dissent, Justice Saylor argues that that the Court should have exercised restraint at least until the U.S. Supreme Court decides the federal political gerrymandering cases before it and avoided such a decision without a clear standard for the General Assembly to employ in determining the new districts. Justice Saylor raises such concerns while recognizing that the lower court’s findings of fact supported a conclusion that the districts were politically gerrymandered. Justice Mundy joined Justice Saylor’s dissent, and further argued that the Court set out no clear legal standards for determining if congressional districts violated the Pennsylvania Constitution. She also warned that the decision involves important federal constitutional concerns since the U.S. Constitution grants to the state legislatures the authority to set the time, manner, and place of congressional elections. The latter argument may form the basis for seeking review by the U.S. Supreme Court—a request for review threatened by counsel for the Republican leadership of the General Assembly.

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