Sharpen Your Pencils, Harrisburg

Pa. Supreme Court may now be poised to to throw out gerrymandered lines 

(Photo Left) Pa.'s 7th Congressional District, a.k.a.  "Goofy kicking Donald Duck" district is  possibly the most egregiously  gerrymandered district in the nation.  Illustration by Salvatore Patrone.

The Washington Post has described it as “Goofy kicking Donald Duck.” In one part, it is as wide as an endoscopy center, in another, it is as wide as a seafood restaurant. Welcome to Pennsylvania’s Seventh Congressional District - arguably one of the nation’s most gerrymandered districts and the poster child for a battle about to be waged in our state Supreme Court; a battle that could ultimately impact congressional districts across the country.


The genesis of this battle was the 2010 election, which placed Republicans in control of both chambers of the state legislature and the governor’s mansion. As reported by the Philadelphia Inquirer in June 2017: “[T]he League of Women Voters of Pennsylvania sued … to have the state’s congressional district map thrown out. Filed in Commonwealth Court on behalf of Democratic voters in each of the state’s 18 congressional districts, the complaint argues that the map, drafted in 2011, ‘was the product of a national movement by the Republican Party to entrench its own representatives in power.’ … they contended that a Republican-controlled legislature created blatantly partisan maps in 2011 that allowed the GOP to take 13 of 18 seats the next year while winning only about half of the ballots cast overall.” The Pennsylvania Supreme Court is perhaps signaling a more activist tone since the balance of its justices shifted 5-2 Democrat in 2016. It had established an end-of-year timeline for findings of fact and law and sent the case to the Commonwealth Court, which landed it on the desk of Judge Kevin Brobson.


In his ruling last month, Brobson, an elected Republican, did what most expected: refusing to order the undoing of the lines. But in so doing, the judge may have provided the plaintiffs with the tools to win the war though losing the day. In his findings of fact, the judge wrote, “A lot can and has been said about the 2011 Plan, much of which is unflattering and yet justified.”


Philly.com reports that he found as a conclusion of fact that: “The plaintiffs had shown that partisan considerations were taken into account in creating the map, he wrote, and that more politically neutral maps could have been drawn that would not have been as favorable to the GOP.


But some degree of partisanship is considered acceptable in redistricting, he said, and the plaintiffs had not created a ‘judicially manageable standard’ for the court to decide whether the map crossed the line.


‘Petitioners, however, have failed to meet their burden of proving that the 2011 Plan, as a piece of legislation, clearly, plainly, and palpably violates the Pennsylvania Constitution,’ he wrote. ‘For the judiciary, this should be the end of the inquiry.’” Not so fast, your honor. The case now goes to the Pa. Supreme Court for affirmation or overrule. We are betting on overrule.


While the cynics may say that a Democrat-controlled court will act act in as partisan a manner as the Commonwealth Court judge, that is not why we believe overrule is in the offing. Our bet is rooted in the justices who now make up the majority, in particular David Wecht and Debra Todd. They will likely seize the opportunity to define the standard Judge Brobson seeks.


Our bet is that these justices didn’t agree to take this case in a vacuum; they knew of the Wisconsin gerrymander case, Gil v. Whitford, argued before the U.S. Supreme Court. A case the justices have yet to rule on.


The PA court majority will recognize, as many Supreme Court watchers have opined, that the deciding vote in this case is Justice Kennedy who, in a 2004 opinion, proposed a hypothetical de facto standard: “If a State passed an enactment that declared ‘All future apportionment shall be drawn so as most to burden Party X’s rights to fair and effective representation …’ we would surely conclude the Constitution had been violated. If that is so, we should admit the possibility remains that a legislature might attempt to reach the same result without that express directive.”


If Judge Brobson needs a standard, the PA Supreme Court should give him one: the Kennedy standard. If lines can infer intent to disenfranchise, they are de facto, unconstitutional. Apply the Brobson facts to the Kennedy standard and — voila — we have unconstitutional lines in the Commonwealth. Sharpen your pencils, Harrisburg. It may be time to redraw the lines. 

Sharpen Your Pencils, Harrisburg

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