Although the national battle over partisan redistricting is far from over, defenders of gerrymandering suffered a big blow in Pennsylvania yesterday.
On Monday the United States Supreme Court denied a last-ditch effort by the GOP-controlled Pennsylvania legislature to protect its heavily-gerrymandered congressional map, which has been in place since 2011. By denying the legislature’s stay petition, the U.S. Supreme Court effectively upheld a ruling by the Pennsylvania supreme court last month that the 2011 map violated the Pennsylvania state constitution. For all practical purposes, therefore, the U.S. Supreme Court's decision means that November’s congressional elections in Pennsylvania will not be held under the 2011 map, but will instead be held under a new and much fairer map that the Pennsylvania supreme court crafted in February.
There are three implications of yesterday’s decision that are particularly noteworthy.
Electoral Ramifications
The most immediate consequence of the new Pennsylvania map is that it increases the Democrats’ chances of winning a House majority in the November congressional elections. Under the 2011 map, Republicans consistently held 13 of Pennsylvania’s 18 districts, even when Democrats carried 51% of the statewide vote in the 2012 elections. In striking down the 2011 map, the Pennsylvania supreme court ruled that it violated the Pennsylvania constitution’s “free and equal elections” clause by undermining “our entire democratic process through the deliberate dilution of our citizenry’s individual votes.” As the court pointed out, “It is a core principle of our republican form of government that the voters should choose their representatives, not the other way around.”
Under the new Pennsylvania district lines drawn by the state supreme court, it is possible Democrats will pick up an additional 4 or 5 seats. To win control of the U.S. House, Democrats need to flip 24 congressional seats nationwide from red to blue. Pennsylvania alone could thus give Democrats a big boost in achieving that goal, which makes the electoral ramifications of yesterday’s decision quite important indeed.
The Meaning of the Elections Clause
The U.S. Supreme Court’s decision yesterday also has a significant impact on federal constitutional law.
Although the Pennsylvania supreme court struck down the 2011 map solely on state constitutional law grounds, the Pennsylvania legislature argued that the state supreme court's ruling violated the Elections Clause of the federal constitution.
The U.S. Constitution’s Elections Clause is found in Section 4 of Article I, which states (with my emphasis added):
“The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.”
By its express terms, therefore, the Elections Clause delegates to the state legislatures the power to draw congressional district lines, subject to regulation by Congress itself. In its unsuccessful petition to the U.S. Supreme Court, the Pennsylvania legislature argued that the Elections Clause’s use of the term state “legislature” has the effect of ousting the state supreme courts of jurisdiction over federal gerrymandering cases. In the Pennsylvania legislature’s view, therefore, the Pennsylvania supreme court had no authority under the federal constitution to tell the state legislature how to draw congressional lines.
However, the legislature’s textual argument suffered from one rather significant flaw: the U.S. Supreme Court has already largely rejected the “legislature-only” interpretation of the Elections Clause.
In the 2015 case of Arizona State Legislature v. Arizona Independent Redistricting Commission, the U.S. Supreme Court held that the term “legislature” in Article I simply refers to the legislative function, which can include the referendum and initiative process. That in turn means that the people of a state may amend their state constitutions to provide new rules for federal as well as state redistricting. In other words, in drawing congressional district lines, the state legislatures are subject to state constitutional law and the jurisdiction of the state supreme courts. As Justice Ginsburg explained in the majority opinion, “redistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking.”
The Arizona case was not unanimous. Four conservative justices dissented: Roberts, Scalia, Alito, and Thomas. In a vigorous dissent, Chief Justice Roberts wrote that the majority performed “a magic trick with the Elections Clause” by “revising ‘the Legislature’ to mean ‘the people.’” Roberts’s dissent in the Arizona case indicated that the four dissenting justices believe the Elections Clause gives state legislatures exclusive authority over federal redistricting, subject only to congressional regulation and federal constitutional law, but not to state constitutional law.
Interestingly, however, despite the disagreement among the justices over the Arizona case, there were no dissents to the Pennsylvania order yesterday. The full Court rejected the petition without dissent or comment. In other words, none of the conservative justices used the opportunity to revive the Elections Clause argument or explore new ways around the Arizona ruling.
It seems fair to conclude, therefore, that the Elections Clause issue is settled, at least as long as Justice Kennedy remains the swing vote on the Court. With even the conservative justices implicitly giving up the battle (for the time being at least), the Elections Clause is no longer an impediment to state judicial efforts to apply state constitutional standards to the federal redistricting process. Accordingly, yesterday’s U.S. Supreme Court decision makes it clear that henceforth the state legislatures must comply with state constitutional law--not just federal law--in drawing federal congressional boundaries.
The Role of State Supreme Courts in Battling Gerrymandering
And that in turn leads to perhaps the most intriguing development of all. The national focus of the legal battle over partisan gerrymandering has focused on the two major partisan gerrymandering cases currently before the U.S. Supreme Court: Gill v. Whitford (the Wisconsin gerrymandering case) and Benisek v. Lamone (the Maryland gerrymandering case). The Court heard oral argument in the Gill case in October and will hear oral argument in the Benisek case on March 28. The Gill case involves an equal protection challenge to Wisconsin’s state legislative redistricting plan, and the Benisek case involves a First Amendment challenge to Maryland’s congressional redistricting plan. Together the Gill and Benisek cases give the U.S. Supreme Court multiple constitutional grounds on which to strike down partisan gerrymanders.
But even if a majority of Supreme Court justices fail to agree on a federal constitutional standard for invalidating politically-motivated redistricting, yesterday's Pennsylvania ruling suggests the way is now clear for state supreme courts to strike down partisan gerrymanders on their own. By putting to rest the Elections Clause issue (at least as long as Kennedy remains on the Court), the U.S. Supreme Court has signaled to state supreme courts across the country that they are free to follow the path taken by the Pennsylvania Supreme Court and apply state constitutional law to federal gerrymanders.
For anyone who opposes partisan gerrymandering, this is a very welcome development. As Prof. Joshua Douglas explained in an important Vanderbilt Law Review article, the state constitutions provide express protection for voting rights to a significantly greater degree than the federal constitution does. Thus, with the Elections Clause apparently no longer an impediment to state supreme court involvement in federal redistricting cases, opponents of gerrymandering can now base their claims on state constitutional provisions that explicitly protect voting rights and the democratic process. As the Pennsylvania supreme court explained in its ruling:
Therefore, regardless of how the U.S. Supreme Court rules in the Benisek and Gill cases, the Supreme Court's refusal to intervene in the Pennsylvania case on Monday gives opponents of gerrymandering a whole new set of legal arguments to employ. Accordingly, the time has arrived for state courts to play a new and potentially central role in the battle against federal gerrymandering.
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