Pennsylvania Supreme Court’s Historic Ruling in the Pennsylvania Gerrymandering Case

On Wednesday, February 7, 2018, the Pennsylvania Supreme Court (“Court”) issued its historic ruling in the Pennsylvania gerrymandering case, declaring that the Pennsylvania General Assembly’s hyper-partisan and politically-gerrymandered 2011 congressional redistricting plan (“2011 Plan”) violated Article I, Section 5 of the Pennsylvania Constitution—known as the Free and Equal Elections Clause. Justice Todd wrote the majority opinion and was joined by four other justices in its conclusion that the 2011 Plan violated the state constitution. One of the five Justices who joined with the majority in its legal conclusion, dissented in the Court’s remedy, which orders a new, constitutionally valid redistricting plan installed in time for the 2018 congressional election. Justices Saylor and Mundy dissented.

A month ago, the Pennsylvania AFL-CIO, the American Federation of Government Employees, the American Federation of State, County and Municipal Employees, Council 13, the American Federation of Teachers Pennsylvania, the Association of Pennsylvania State College and University Faculties, the Communication Workers of America, District 2-13, SEIU Pennsylvania State Council, the United Food and Commercial Workers, Local 1776, and UNITE HERE filed an Amici Brief with the Court in this important case. The Amici Brief discussed the history and importance of several relevant provisions of the Pennsylvania Constitution, including the Free and Equal Elections Clause.

On January 22, 2018, the Court declared via an Order that the 2011 Plan violates the Pennsylvania Constitution. The Order directed the General Assembly and the Governor to enact a new, constitutionally-valid redistricting plan by February 15, 2018 or the Court would adopt such a plan itself by February 19, 2018. The Court did not issue an opinion at that time, deferring to do so until later. Nor did the Court’s Order indicate which state constitutional provision that the 2011 Plan violated.

The thorough and well-researched majority opinion of the Court discusses at length the Free and Equal Elections Clause, its adoption, and its inclusion in successive versions of the Pennsylvania Constitution, some of which was outlined in the Amici Brief filed by the unions. That provision states that “[e]lections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” The Court discusses and summarizes the Union’s Amici Brief as well as other amici briefs, and adopts some of the reasoning brought to bear by the Unions. The Court’s ruling rests entirely on Article I, Section 5 and does not decide one way or the other if the 2011 Plan violates other provisions of the Pennsylvania Constitution, such as the right to free speech and assembly, the right to equality, and the right to non-discrimination as alleged by the individuals who brought the lawsuit.

The Court noted that a version of the Free and Equal Elections Clause first appeared in the original constitution of Pennsylvania in 1776, predating the U.S. Constitution by eleven years, and has existed in the Pennsylvania Constitution in its present form since 1790. As the Court points out, there is no similar provision in the U.S. Constitution. Based on its review of the Free and Equal Elections Clause, the Court declared:

In accordance with the plain and expansive sweep of the words “free and equal,” we view them as indicative of the framers’ intent that all aspects of the electoral process, to the greatest degree possible, be kept open and unrestricted to the voters of our Commonwealth, and, also, conducted in a manner which guarantees a voter’s right to equal participation in the electoral process for the selection of his or her representatives in government. Thus, Article I, Section 5 guarantees our citizens an equal right, on par with every other citizen, to elect their representatives. Stated another way, the actual and plain language of [Free and Equal Election Clause] mandates that all voters have an equal opportunity to translate their votes into representation.

This conclusion constitutes the first time the Court interpreted Article I, Section 5 with respect to congressional redistricting. The Court’s interpretation of the Free and Equal Elections Clause recognizes an expansive right for Pennsylvanians to “free and equal elections.”

In comparing the 2011 Plan against its understanding of the Free and Equal Elections Clause, the Court categorically found that the 2011 Plan violates Article I, Section 5. In making this determination, the Court declared that any congressional redistricting plan should use the well-understood neutral factors that have guided congressional and state redistricting for most of our Commonwealth’s history. The Pennsylvania Constitution has already adopted those standards with respect to redistricting state House and Senate districts. Those neutral factors include requirements that districts be compact, contiguous, equal in population, and do as little violence to municipal and county borders. Since the 2011 Plan creates districts that are neither compact nor contiguous, and splits a high number of counties and municipalities, the Court concluded that it undoubtedly violates the Pennsylvania Constitution.

The Court’s opinion constitutes a tremendous legal victory in the area of voting rights. This decision represents one of the few by a state’s highest court finding that a congressional redistricting plan violated the state’s constitution. There are twelve states that have an identical provision as our Free and Equal Elections Clause, and a handful more who have a slightly similar one. The Court’s decision may pave a way for plaintiffs to challenge existing congressional redistricting plans or future ones on the grounds that they violate their own state constitutions. The Court’s decision and any similar decisions by other state’s highest appellate courts would likely be undisturbed by any decision of the U.S. Supreme Court on the constitutionality of a politically gerrymandered plan under federal law. The U.S. Supreme Court is poised to issue a decision this summer in a case in which plaintiffs challenged Wisconsin’s state house districts on the grounds that they were the result of political gerrymandering and therefore violated federal law.

The Court’s ruling will have a practical effect in the political composition of Pennsylvania’s congressional delegation in the near term. Despite a nearly equal number of registered voters between the two parties, under the 2011 Plan, the Republican to Democratic split in Pennsylvania’s eighteen congressional districts has been 13 to 5 through three congressional elections. A non-politically gerrymandered redistricting plan would almost certainly result in a congressional split of 10 to 8 or 9 to 9 as all of the congressional districts will be far more politically competitive.

Prior to the Court issuing its opinion but after it had rendered its Order, the General Assembly’s Republican majority and leadership filed with the U.S. Supreme Court a petition for review of the Court’s Order, along with a request for a stay of the ruling. They also filed a motion seeking disqualification of two of the Justices on the Pennsylvania Supreme Court who joined the majority in its conclusion. Those requests were denied by the U.S. Supreme Court and the Pennsylvania Supreme Court, respectively. In light of those rulings, a new redistricting map will likely be adopted by February 19, 2018. That new map will either be enacted by the General Assembly and approved by Governor Wolf, or be imposed by the Court after consideration of proposed new maps submitted by the parties.

However, the legal challenge may not be over. The Republican-controlled General Assembly could file another petition for review and request a stay with the U.S. Supreme Court if the General Assembly and the Governor cannot agree upon a new, redistricting map and instead the map is drawn by the Court. More alarmingly, a few Republican members of the state House filed resolutions seeking impeachment of the five Justices of the Pennsylvania Supreme Court who concluded that the 2011 Plan violated the Free and Equal Elections Clause. It is unclear at this time if the General Assembly will pursue such an extraordinary path against Justices of the Court, based simply on their disagreement with judicial decision.

Willig, Williams and Davidson and the Unions who requested the filing of the Amici Brief are proud to have participated in this historic decision. The law firm will keep you informed as further developments occur.

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