PA Legislators Ask Supreme Court to Stay Usurpation of Redistricting by PA Supreme Court

On Tuesday, Pennsylvania Speaker of the House Michael Turzai and Senate President Pro Tempore Joseph Scarnati filed an emergency application with Justice Samuel Alito to stay the imposition of a new congressional map by the Pennsylvania Supreme Court pending resolution of the case by the entire U.S. Supreme Court.  Counsel to the Pennsylvania legislators include RNLA members Jason Torchinsky and Phillip Gordon of Holtzman Vogel Josefiak Torchinsky PLLC and Mark Braden of Baker & Hostetler LLP.  

They described the intentional usurpations of the political process by the Democrat-controlled Pennsylvania Supreme Court (internal citations and notes omitted):

This case arises from the Pennsylvania Supreme Court’s usurpation of the Pennsylvania General Assembly’s legislative authority to draw its congressional district lines through its preordained invalidation of the lawful districts the General Assembly enacted in 2011 (the “2011 Plan”). At all stages, the Pennsylvania Supreme Court set this case on a path whereby only it would draw Pennsylvania’s new congressional districts—a task delegated to the “Legislature”—in violation of the Elections Clause. But as Justice Kennedy stated in League of United Latin Am. Citizens v. Perry, “drawing lines for congressional districts is one of the most significant acts a State can perform to ensure citizen participation in republican self-governance. * * * As the Constitution vests redistricting responsibilities foremost in the legislatures of the States and in Congress, a lawful, legislatively enacted plan should be preferable to one drawn by the courts.” . . . The Pennsylvania Supreme Court conspicuously seized the redistricting process and prevented any meaningful ability for the legislature to enact a remedial map to ensure a court drawn map.  

First, on January 22, 2018, the Pennsylvania Supreme Court issued an order enjoining the 2011 Plan because it failed to comply with purported mandatory requirements found nowhere in the Pennsylvania Constitution . . . . Second, the Pennsylvania Supreme Court provided an inadequate remedial opportunity to the General Assembly, thus ensuring a court drawn map. It did not issue an opinion with its initial order and did not provide its sufficient guidance on how a new map could be drawn in compliance with the Pennsylvania Constitution. It nevertheless gave the General Assembly a mere 18 days, until February 9, to enact new legislation before the Court would impose a plan of its own, and even reserved the right to review the enacted map. Indeed, that was the court’s intention all along. It proceeded to hire a political scientist to prepare for a judicial, rather than a legislative, redistricting. . . . 

. . . [T]he Pennsylvania Supreme Court’s intentional seizure of the redistricting process is now complete. On February 7—just two days before the deadline that the Court imposed to enact a new plan—the Pennsylvania Supreme Court issued an opinion . . . . The General Assembly’s leadership rushed to prepare a plan to comply with the court’s opinion, but, given the two-day timeframe, it was unable to put a plan to a vote or negotiate a mutually agreeable plan with the Governor. It submitted that plan to the court and the Governor for review on February 9. On February 19, the Pennsylvania Supreme Court adopted its own plan. The parties to the litigation had never before seen the court’s plan and had no opportunity to vet for compliance with the court’s own criteria. 

By promulgating mandatory criteria the General Assembly could not anticipate in 2011, and that are found nowhere in the Pennsylvania Constitution, withholding guidance as to how to achieve compliance with Pennsylvania law until two days before the court’s imposed deadline to enact a new plan, creating a proportional-representation criterion that is practically impossible to implement, and imposing a remedial plan that had been in the works all along, the Pennsylvania Supreme Court ensured that its desired plan to draft the new map would be successful.  

Organizations such as the American Civil Rights Union filed non-partisan maps with the Pennsylvania Supreme Court, but of course the court was not interested in a map that was not drawn by its hand-picked expert.

Justice Alito requested a response to the application by 3:00 PM Eastern on Monday.  We can expect a decision soon, as he denied the application to stay following the Pennsylvania Supreme Court's initial order 10 days after the application was filed.

Threat of Vote Fraud Is Real

There has been much debate in the past few weeks over whether vote fraud exists, with many liberals claiming that it does not exist at all.  

Rejecting the idea that vote fraud does not occur as "lunacy" during an interview on MSNBC, RNLA's Vice President for Election Education, Mark Braden, recounted an instance of vote fraud that he encountered personally:

Well, our election system actually works quite well. . . . But the notion that vote fraud doesn't exist, is, of course, lunacy. People steal cars, people steal money, why anybody would think you wouldn't steal votes is a mystery to me. Vote fraud is rare but it absolutely occurs, and sometimes occurs on a massive basis. I did a recount in Illinois of the governor's race. I went to the Chicago Board of Elections, where they explained to me that vote fraud was a Republican illusion. And a Chicago Times reporter explained the same thing to me. But when we got done with the recount, the grand jury report showed that 10% of the Chicago vote was made up on election night. That's 110,000 votes. So the notion that vote fraud doesn't happen is a joke. It does happen. 

Mark Braden went on to emphasize that just because there are unfounded accusations of fraud, we should not assume that vote fraud does not occur, and that well trained poll workers and observers are some of the best protections against fraud:

Well, I've seen people make unfounded accusations of fraud. [P]eople make wild accusations. One shouldn't let the nonsense of wild accusations blind [one] to the possibility of real indiscretions. So it’s a balancing act. 

Most of our elections work extremely well, but there are places where they don't. And in those places, we need to be concerned. Asking people to be poll workers and working in our polling places are, in fact – that's the best guarantee for a good system. A good system has people working for both parties in polling places around the country as poll workers watching the process.

Forbes contributor George Leef summarized the problems with denying the existence of vote fraud and especially using that denial to overturn voter ID laws, as the Fourth Circuit did in striking down the North Carolina voter ID law:

[T]he nation does face a grave election integrity problem. It goes way back in time and has been worsening in recent years as techniques for manufacturing votes have been sharpened. . . .  

Judge Motz also resorts to the assertion that vote fraud is a problem that doesn’t exist, which raises a logical question: how does she know that it never happens or only with extreme rarity? How can anyone claim knowledge that things are not happening? Anyway, there is abundant evidence that vote fraud does happen and with regularity. 

Wall Street Journal columnist John Fund . . . points out, that the late Senator Arlen Specter acknowledged that in Pennsylvania vote fraud was common and notorious. Fund also quotes former Philadelphia City Councilman Jimmy Tayoun (who went to prison for corruption) on the tactics of fraud: “You can flood a lot of phony names and phony addresses, and there’s no way they’re going to check.” 

Invalidating a law over nothing more than assumptions about bad motives in enacting it is politicized judging at its worst. This National Review editorial puts the point well: “The Fourth Circuit went out of its way to ignore evidence, impugn the motives of North Carolina’s legislature, and concoct specious legal rationales to forward a political agenda.”

While tools such as poll watchers and voter ID help to ensure that elections are open, fair, and honest, vote fraud does happen.  It is irresponsible and naive to claim otherwise.

The RNLA's Florida RNC Meeting Reception Is Rapidly Approaching. RSVP Today!

The RNLA Florida RNC Meeting Reception for RNLA Sponsors, RNLA Members and RNC Meeting Attendees will take place on April 20, 2016, on the patio (weather permitting) of the Rivals Waterfront Sports Bar located inside of the Diplomat Resort & Spa.

Special leaders and invited guests will be in attendance including RNC Chairman Reince Priebus, RNC General Counsel John Ryder, RNC Debate Committee Member and Georgia Committeeman Randy Evans, and Kasich for President's General Counsel Mark Braden.

Pictured: (Left to Right) RNC General Counsel John Ryder,
RNC Chairman Reince Priebus & RNLA Chair Randy Evans

To attend this reception you must be an RNLA Member or Sponsor this event.  Sponsors will receive additional perks.  Contact Brittany Walker at walker@republicanlawyer.net or Michael Thielen at thielen@republicanlawyer.net for details on membership or sponsorship.

Thank you to Manny Iglesias for graciously sponsoring this event.

To RSVP for this event, click here.  

Earlier in the day on April 20, the RNLA is also hosting a State Party Executive Director EDO Training and an Election Law CLE and Ethics Training Seminar. 

The 2014 Republican Lawyer of the Year: Mark Braden

The Board of Governors of the Republican National Lawyers Association is pleased to announce the selection of E. Mark Braden as the 2014 Republican Lawyer of the Year. This award recognizes lawyers for outstanding professional accomplishments and years of dedicated service to the Republican Party and its ideals.

Mark will be presented the award at a special reception in his honor on July 22.  More details are here.  Photos from our 2013 Republican Lawyer of the Year Ceremony honoring George Terwilliger and featuring Senators Jeff Session and Ted Cruz and RNC Chair Reince Priebus are here Some details on that reception are here.

Mark Braden concentrates his work principally on the law of the political process, including work with election and campaign agencies, voting issues, redistricting, and ethics and lobbying regulations—areas in which he has substantial knowledge and unusual experience. Mark spent 10 years as Chief Counsel to the Republican National Committee prior to joining BakerHostetler. He is widely recognized for his knowledge on state election laws, having served as Chief Counsel to the Ohio Elections Commission and Election Counsel for the Secretary of State in Ohio. Mark has played a large part in campaign finance and was the father of "soft money" as originally used in national campaigns.

Mark is also RNLA’s counsel and a longtime member of its board. 

Mark is a member of the adjunct faculty of George Washington University and was Special Election Law Counsel to the United States House of Representatives' Administration Committee. He has testified before congressional committees and the Federal Election Commission, and his experience in the legal and political arena has resulted in invitations to lecture at universities and institutes nationwide. He has authored Election Reform in the United States after Bush v. Gore, ed. Grofman & Alvarez, Chapter: "Entering the Political Thicket" (Cambridge University Press, 2013).

Mark has represented Republican members of, or candidates for, the United States Senate, United States House, Governors, former Cabinet Secretaries and Presidential Candidates on campaign financing, and ethical issues/criminal and civil enforcement. Mark also assists nonprofit organization in such context, advising on issues related to fundraising restrictions, ethical concerns based on lobbying requirements, and completed campaign funding issues.

Mark has been lead counsel in redistricting/Voting Rights Acts litigation in recent cycles in Ohio, New York, Wyoming, New Mexico, Oklahoma, Georgia, Nevada, Maryland, and Connecticut. He has argued at the U.S. Supreme Court and state Supreme Courts throughout the country, in which the redistricting at issue was affirmed.

Mark has been a principal lawyer in many of the largest recounts in political history, including recount and contests litigation in Ohio, Pennsylvania, Indiana, California, North Carolina, Virginia, Illinois, New Jersey, Washington, and New Mexico. Mark was a key negotiator for convention contracts and site city agreements for the 1980, 1984, 1988, and 1992 Republican National Conventions. Mark has also served as international election consultant on a dozen different national election systems for International Republican Institute (IRI), International Foundation for Election Systems (IFES), National Democratic Institute (NDI), and the Organization for Security and Cooperation in Europe (OSCE).