How Pennsylvania’s Redistricting Effort May Succeed Where Other States Haven’t

Pennsylvania’s current congressional map was found unconstitutional by its state supreme court on January 22, and the Republican-led legislature’s subsequent failures to secure a stay from the U.S. Supreme Court or settle on a new map with Gov. Tom Wolf could strike a decisive blow to state political parties that maintain power through partisan gerrymandering. The legislature missed their court-imposed deadline for gaining the Governor’s approval on February 15, leaving the job of drawing Pennsylvania’s new congressional districts to Stanford Law professor Nathaniel Persily. This decision seems to threaten Republicans in Pennsylvania’s General Assembly, with some representatives even publicly discussing a vote to impeach the state Supreme Court judges that ruled against their map. Such an extreme response is probably informed by Persily’s lauded experience as a fair court-appointed expert in redistricting cases from New York to Georgia, with his recent experience drawing North Carolina’s legislative map being most illustrative.

The maps that Persily drew on behalf of the court in North Carolina v. Covington were the result of a suit brought by residents who saw the black vote being diluted in over two dozen districts. Their vote-share had been diminished by a map that spread black communities thinly amongst many electorates. After a district court panel sided with the residents, the Supreme Court affirmed the lower court’s demand for 28 new legislative districts. The district judges then appointed Persily to give the districts less racially suppressive boundaries, but the Supreme Court has made clear that this method has its limits.

On January 18, the Supreme Court stayed a concurrently-running case’s decision in the Middle District of North Carolina that called for congressional redistricting on the grounds that partisan bias in drawing district lines violates the 14th Amendment. In staying this case, the Supreme Court appears to call for a pause on partisan gerrymandering at the federal level until it decides its constitutionality later this year, but the nearly decade-long fight to define state legislature maps in North Carolina remains active on the issue of race-based redistricting.

In Covington, Persily’s newly-drawn districts were intended to address this racial bias in North Carolina’s old maps, gaining the district court’s approval for his map on January 19th. But on February 6th a very brief order from the Supreme Court modified the lower court’s decision, allowing many of Persily’s changes to take effect while halting redistricting in Wake and Mecklenburg (which happen to be the state’s most populous counties).

Considering these restrictions on Persily’s anti-gerrymandering efforts and the Supreme Court’s suspension of partisan congressional gerrymandering decisions until it rules on the constitutional issue, Pennsylvania’s focus on the unsettled issue of partisan gerrymandering seems at risk. But what’s happening in Pennsylvania is different in one key way— the process doesn’t step on the Supreme Court’s toes.

The Pennsylvania Supreme Court’s decision rests on a state constitutional requirement that “elections shall be free and equal,” which the court reads as being incompatible with a partisan advantage that gives 13 of the state’s 18 Congressional seats to a party that barely half of the electorate voted for. While similar to North Carolina’s suspended decision in principle, the lack of federal law claims likely helped the Pennsylvania court retain its authority by confining the case to questions of Pennsylvania law. If true, the deference that the Supreme Court traditionally shows to state supreme courts in matters of state law could easily explain Justice Alito denying to stay the decision (without reasons) on February 5th.

Much like in North Carolina, these positive procedural conditions fell into place when Republican legislators attempted to maintain their majority by refusing input from the Governor or Democrats in the general assembly, providing insight into how legal reform efforts can have inconsistent results based on seemingly minute details. As was the case here, the same actors can tackle the same problem with the same basic principles in mind, but still end up with fundamentally different results because of a tangential factor like the Supreme Court’s current docket— with vastly different versions of representation being the ultimate consequence.

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Kwame is a 1L at HLS. His hometown is Winter Haven, Florida, and he recieved BAs in Government and American Studies at Cornell University. Kwame is active in the Harvard Prison Legal Assistance Project, the American Constitution Society, and the Mississippi Delta Project, and will spend his summer working for the DC Public Defender Service. Follow him at @Kwammentary

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