Pennsylvania Supreme Court ruling has local and national implications

In an order Monday, the Pennsylvania Supreme Court ruled that congressional district maps adopted by the Pennsylvania legislature in 2011 “clearly, plainly and palpably violate[] the Constitution of the Commonwealth of Pennsylvania, and, on that sole basis, we hereby strike it as unconstitutional.” The court’s order — a full opinion explaining the court’s legal reasoning is still forthcoming — explicitly states that the state no longer can use that congressional map for the upcoming 2018 congressional elections.

The wording of the court’s short statement has vital implications for the finality of the court’s order. While the U.S. Supreme Court, which will weigh in on the constitutionality of partisan gerrymandering before the end of its term in June, often hears cases about congressional redistricting, it cannot hear any case it wants. Rather, its jurisdiction is limited to cases, generally, that involve some dispute over federal law. That the Pennsylvania Supreme Court explicitly said the “sole basis” of its ruling was the state constitution — a document that court (and not the U.S. Supreme Court) is the final arbiter of — suggests it is quite unlikely the U.S. Supreme Court could hear this case. The Pennsylvania Supreme Court’s ruling seems likely to stand unchallenged.

{mosads}This decision was not unexpected. In the lead-up to the decision, political scientists who study congressional redistricting concluded that Pennsylvania’s congressional map constituted one of the worst congressional gerrymanders in the United States; one commentator called the map the “gerrymander of the decade” when it was released. For example, using the “efficiency gap” — the ratio of votes “wasted” by voters in both parties — as a metric, MIT political scientist Chris Warshaw concluded that Pennsylvania’s congressional map was among the most gerrymandered compared to historical Pennsylvania standards.

The state had the highest efficiency gap in the 2012 elections among states with more than six representatives, and the state’s 2012 election results represented the second-largest efficiency gap in the history of the United States. Or, to put the Republican advantage in different terms, Republicans have held 13 of the state’s 18 congressional districts since the map went into effect in 2012, despite the state’s continual swing-state status in presidential elections.

At the same time, there were other reasons to expect the court would find the map unconstitutional. Although federal judges are appointed to their jobs, Pennsylvania’s Supreme Court justices, like many judges in the United States, are elected to their seats. Moreover, Pennsylvania uses partisan labels — which place the party affiliation right next to the name of a judicial candidate — to select judges. Pennsylvania’s high court went through a sea change in 2015 when three open seats were up for election and voters selected Democratic justices to fill those seats. Given that the congressional map’s proponents were Republicans and the Democratic Party has a healthy majority on the Pennsylvania Supreme Court, many expected the court to strike down the map from the moment the court began its consideration of the case.

Regardless of expectations, the ruling will jolt politics across the country. Indeed, once the court’s opinion is released, many will wonder about this decision’s implications for the U.S. Supreme Court’s current docket. Though the U.S. Supreme Court is not bound, formally or otherwise, by the Pennsylvania court’s ruling, many of the arguments made to both courts have overlapped. Most notably, social scientists urged both courts to adopt the efficiency gap as an easy-to-calculate and simple to understand metric to judge the fairness of congressional districting plans.

At oral argument, U.S. Chief Justice John Roberts referred to that calculation, saying, “I can only describe it as sociological gobbledygook.” Were the Pennsylvania court’s ruling to rely heavily on the concept and be accepted without widespread rebuke, Roberts’s fear that judging congressional redistricting, in part, based on mathematical calculations would harm the legitimacy of the court might be mitigated, thereby easing the road to the high court’s adoption of that metric across the country.

Until then, congressional races in Pennsylvania are in a scramble. The court gave the Pennsylvania General Assembly a tight turnaround to redraw the state’s congressional districts, requiring legislators to submit a revised map for gubernatorial approval by Feb. 9. The new congressional map needs to be adopted swiftly so the state’s May 2018 congressional primaries can continue as scheduled, something the court demanded explicitly in its ruling.

So, for the next few weeks, all eyes are on the General Assembly as it tries to craft a map that meets the court’s standards, lest the court — as it threatened in its order — take matters into its own hands. Until then, voters and politicians alike will wonder how much a new congressional map will exacerbate Republicans’ existing fears that the 2018 midterm elections will cost the party control of the U.S. House of Representatives.

Michael J. Nelson is the Jeffrey L. Hyde and Sharon D. Hyde and Political Science Board of Visitors Early Career Professor, an assistant professor in the Department of Political Science, and a member of the affiliate law faculty at The Pennsylvania State University.