Dissecting the Pennsylvania Supreme Court's Redistricting Order

Yesterday, the Supreme Court of Pennsylvania handed down a per curiam order regarding a recent redistricting lawsuit that worked its way up through the Pennsylvania Courts: League of Women Voters of PA v. Pennsylvania.

At issue, the congressional district boundaries drawn after the 2010 census. The ruling fell along roughly partisan lines, with 4 justices ruling its congressional map was unconstitutional with another justice concurring in part (the unconstitutionality) and dissenting in part (the remedy put forth by the majority). Meanwhile, the two remaining justices dissented to the order in its entirety (see below).

The crux of the order declared:

[This] Court finds as a matter of law that the Congressional Redistricting Act of 2011 clearly, plainly and palpably violates the Constitution of the Commonwealth of Pennsylvania, and, on that sole basis, we hereby strike it as unconstitutional. Accordingly, its further use in elections for Pennsylvania seats in the United States House of Representatives, commencing with the upcoming May 15, 2018 primary, is hereby enjoined. . . .

The Court's order continues by detailing how a new map will be redrawn in time for Pennsylvania's 2018 Primary, which is less than four months away. The order allows the Republican-majority Pennsylvania General Assembly to redraw the congressional districts within the Commonwealth, but they must submit their proposal by February 9, 2018, which must be approved by the Democratic Governor Tom Wolf--just 19 days. If the Governor and the Pennsylvania General Assembly fail to come to an agreement--which is possible, if not entirely likely--the Supreme Court of Pennsylvania will redraw the congressional districts for Pennsylvania.

The Court ended its order by issuing an exemption for Pennsylvania's 18th Congressional District, which is in the midst of a special congressional election, scheduled for March 13th. However, every other district is subject to be redrawn. The Court stated a full opinion is forthcoming.

Chief Justice Saylor offered a salient dissent:

Consistent with my previous vote disfavoring the assumption of extraordinary jurisdiction, I agree with the Commonwealth Court’s original position that it would have been appropriate to stay this matter pending anticipated guidance from the Supreme Court of the United States in Gill v. Whitford [citations omitted]. Indeed, the Supreme Court has stayed a series of recent federal court directives to state legislatures in cases lodging partisan gerrymandering challenges pending its review, most recently, as of last week [Rucho v. Common Cause] [citations omitted]. I hold the view that restraint is appropriate, particularly in light of the timing of the present challenge to a congressional redistricting plan that was enacted in 2011 and the proximity of the impending 2018 election cycle [citations omitted]. . . The crafting of congressional district boundaries is quintessentially a political endeavor assigned to state legislatures by the United States Constitution. See U.S. CONST. art. I, §4. . . .

Justice Mundy expanded on Chief Justice Saylor's dissent by stating:

I join Chief Justice Saylor’s dissenting statement in full. I write separately to express my concern with the vagueness of the Court’s order. Despite its pronouncement that the 2011 map clearly, plainly, and palpably violates the Pennsylvania Constitution, the Court fails to identify the specific provision it so violates. This vagueness by the Court is problematic because the parties raise several state constitutional claims, including the Speech Clause, the Free Association Clause, the Elections Clause, and the Equal Protection Clause, each of which has a different mode of analysis [citiations omitted].

The Court’s order fails to give essential guidance to the General Assembly and the Governor, or this Court on how to create a constitutional, non-gerrymandered map. I am also troubled by the order striking down the 2011 Congressional map on the eve of our midterm elections, as well as the remedy proposed by the Court. In my view, the implication that this Court may undertake the task of drawing a congressional map on its own raises a serious federal constitutional concern. See U.S. CONST. art. I, § 4, cl. 1 (stating, “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof[]”) (emphasis added) [remaining citations omitted].

Both dissents highlight U.S. Consitution issues, which the Supreme Court of Pennsylvania's per curiam order attempted to carefully avoid. 

Meanwhile, Pennsylvania GOP leaders from the Pennsylvania General Assembly announced that they will seek a stay from the Supreme Court of the United States.  In a joint statement, GOP leaders declared: “It is clear that with this ruling the Court is attempting to bypass the Constitution and the legislative process and legislate themselves, directly from the bench.” GOP leaders hope the U.S. Supreme Court will intervene as they did in North Carolina.

We will keep everyone posted on this story and informed of likely developments over the next couple weeks.

Why Did Pennsylvania's Chief Election Officer Resign? Still Seeking Answers...

Just over seven weeks ago, the Democrat Secretary of the Commonwealth for Pennsylvania, Pedro Cortes, abruptly and shockingly resigned from his post after just over two years. His resignation followed a government finding that non-citizens had registered to vote and many did in fact vote in past elections due to a "glitch" in the commonwealth's motor-voter software.

Since this time, Democratic Governor Tom Wolf and his office have not offered any explanation as to the circumstances of Secretary Cortes's resignation--which has only exacerbated the mystery and intrigue surrounding this story.

Earlier this week, Lowman Henry, the CEO of Pennsylvania's conservative-leaning The Lincoln Institute, authored a column on Secretary Cortes's abrupt resignation and the lack of transparency of the whole situation, which was published in a number of local Pennsylvania newspapers.

Mr. Henry's article explains that the Pennsylvania House of Representatives has started an official inquiry to see how non-citizen could register to vote and actually cast ballots in Pennsylvania elections, but quickly has become intertwined with Secretary Cortes's resignation. Mr. Henry writes:

[ ] State Rep. Daryl Metcalfe, who chairs the State Government Committee, asked the Pennsylvania Department of State — the agency that oversees elections — if there was a procedure in place to cross-check the state’s voter registration rolls with driver licenses issued by the Pennsylvania Department of Transportation. Foreign nationals can legally obtain a driver’s license, but their status as a non-citizen is so noted in the application process. To date the Department of State has refused to answer the committee’s questions and has not verified whether or not such cross-checking has occurred. Metcalfe further pointed out that there is no procedure in place for verifying U.S. citizenship in the voter registration process. Thus there is no way of actually knowing how many illegal voters are on the rolls. 

Adding to the intrigue was the abrupt and unexpected resignation of Pedro Cortez [sic]. Cortez served as Secretary of the Department of State, a position he held in both the [Gov.] Rendell and Wolf administrations. Cortez’s resignation came days after media reports spotlighting the foreign national problem. In what Metcalfe termed “suspicious timing,” Cortez was gone. Gov. Wolf, who pledged a greater level of government transparency in his administration, has added a few stones to the wall by refusing to disclose exactly why Cortez resigned. Right-to-Know requests filed by media organizations seem to indicate the Cortez resignation was not voluntary. . . It is true cabinet secretaries serve at the pleasure of the governor. But, they must also be confirmed by the state Senate and, especially when dealing with election integrity, have a further obligation to be transparent with the public. . . .

Mr. Henry continues by noting Governor Wolf and Pennsylvania Democrats' track record on election integrity efforts, or lack thereof:

Gov. Wolf has already opposed such election integrity safeguards as requiring voters to produce a photo ID when they arrive at their polling place. Wolf and Democrats in general[ ] claim photo ID is a GOP plot to discourage voter turnout. This though photo IDs are universally available, and needed even to buy cough medicine at the corner drug store.  

So the governor and his administration have a history of failing to take prudent steps to ensure the integrity of the state’s election system. … The State Government Committee lacks subpoena power to force information from the Department of State, but the House should take whatever action is needed to compel testimony. Lawmakers are elected by We the People to represent us and appointed bureaucrats should not be allowed to refuse to answer whatever questions they might have.

Lowman Henry concludes by calling on Pennsylvania Governor Wolf to provide "a full and complete explanation for the departure of Secretary Cortez." And further states that something just seems off with the whole situation and it feels like there is an attempt to hid it from the public.

The RNLA agrees. We believe the full story surrounding Secretary Cortes's ousting should be made public. Also, the public should be made aware of the full extent of these non-citizens voting in the critical swing state of Pennslyvania. We will continue to follow and highlight any developments that arise.