The Pennsylvania Supreme Court recently released its long-awaited remedy in Pennsylvania's partisan gerrymandering litigation. The court decided that the legislature's congressional district maps were an unconstitutional partisan gerrymander under the commonwealth's constitution. There are many aspects of this litigation that merit brief mention up front.
First, the question of how the state constitution or state supreme court might bind the state legislature in exercising its power as the "legislature" under the United States Constitution to regulate the "time, places, and manner" of elections. (I have some thoughts on that question in the Florida State University Law Review.) That's a question that may see ongoing litigation, but I think the legislature's likelihood of winning is slim.
Second, the question of partisanship in the judiciary as a remedy for partisan gerrymandering. Pennsylvania has not simply judicial elections, but partisan judicial elections. Some have pointed to the federal courts--judges without partisan affiliation and the security of life tenure--as a good place to solve issues of partisan gerrymandering. Here, the litigation was only successful because Democrats secured a recent majority on the Supreme Court--and the litigation undid a Republican legislature's map signed into law by a Republican governor. It might be the case that we quickly turn to the partisan affiliation of federal judges in gerrymandering disputes, but that pales in comparison to actual partisan affiliations in contested judicial elections. (It also offers conflict of interest challenges after Caperton v. Massey (which has its own challenges!), and political cries for impeachment or removal from office, a decidedly different and unsurprising look, in my view.) I think, then, one might rightly wonder about how to examine the cure for excessive legislative partisanship in a partisan elected judiciary.
Third, the question of judicial regularity in the decisionmaking process, from the not terribly persuasive distinction of a recent supreme court case that had rejected a similar claim under the commonwealth's constitution, to its decision to withhold its reasoning for weeks (n.8), to its abbreviated timeline for the legislature to remedy the ill before the supreme court would implement its own map. Each offers serious concerns.
But I want to set these aside for a moment. All these are very interesting matters that merit further discussion at other times. I think some have more merit than others--and some I don't view as having much merit at all.
Instead, I want to focus on a matter that I view as fairly subversive in the Supreme Court's process, and a method that I think bodes ill for future gerrymandering reform efforts.
On February 19, the commonwealth's Supreme Court issued its remedy, its own map. And what was the Supreme Court remedying? A claim that the map was an unfair partisan gerrymander under the commonwealth's constitution.
But what was the remedy demanded by the court? It instructed the legislature and governor to agree on a plan that adhered to three values: compactness, contiguity, and avoidance of dividing jurisdictions.
That remedy isn't very much like the remedy to the initial problem: did Republicans unfairly advantage themselves too much under the commonwealth's constitution when drawing congressional districts? Certainly, a lack of these three values were signs of concern for the court, but they were not the underlying problem with the map. But the court's remedy asked to draw maps with these three values, expressing no more conditions.
So remedies came pouring in. Unsurprisingly, a divided government in Pennsylvania meant no agreement on a new map (plus, a calculated gamble from Democrats that the court's map would be more favorable to them than a compromise with Republicans). The court issued its own map (as noted above, with little time to spare for the 2018 election).
The map, of course, adheres to these three values, albeit not perfectly (few maps do), in order to make calculated tradeoffs. Those tradeoffs were a significant benefit to Democratic candidates' chances in the commonwealth. (I'll leave to others to analyze how beneficial.)
Those tradeoffs were immediately obvious: Nate Cohn tweeted, "It is fair to say that this map was drawn with the goal of achieving partisan balance, even though that at was not a state goal of the order." Dave Wasserman noted that the map "actively help[]s Dem[ocrat]s compensate for their natural geographic disadvantage in [Pennsylvania]," and that it reflects a "ringing endorsement of the 'partisan fairness' doctrine: that parties should be entitled to [the] same proportion of seats as votes." And Harry Enten tweeted, " Different folks have different criteria on what maps a good congressional map. If vote % to seat % is what you want, that's cool. Just don't sell me stuff on compactness. (Some folks try to, some don't...)"
These snap reactions reflect that something occurred beneath the surface of the Pennsylvania Supreme Court's order. Professor Nick Stephanopoulos noted that this remedy "promises actually to cure the underlying constitutional violation," unlike simply addressing the three values. The New York Times emphasized, "The court’s apparent prioritization of partisan balance is something of a surprise, since the court’s order didn’t specify that partisan balance was an objective for the new map."
Let me offer the outset that I am not doubting the sincerity or well-intentioned motives of the justices on the court or those involved in drawing maps. Partisan fairness is, in my view, as legitimate a political criterion to use when thinking about how to draw maps as partisan-blind or neutral criteria.
But the Pennsylvania Supreme Court did not, in my view, act forthrightly in its opinion dictating criteria and its ultimate map. The criteria it enunciated--its three values of compactness, contiguity, and avoidance of dividing jurisdictions--were never really going to cure the problem it had identified.
It's something like (ed: a metaphor sure to have its limitations!) a doctor diagnosing a patient with a mysterious disease and asking for ideas about how to treat the symptoms of the virus--a runny nose, a cough, a sore throat. When the ideas come in for a decongestant and lozenges, the doctor rejects them, saying, "I have my own decongestant and lozenges"--but one that also comes with blood transfusions. The blood transfusions might be useful, but it was hardly a part of the original proposal.
The Pennsylvania Supreme Court apparently did not want to include language like "seats-votes ratio" or "partisan fariness" into its construction of the commonwealth's constitution. Perhaps it's understandable--doing so would be quite controversial and perhaps even politically unpopular by all parties. It would have to articulate standards about how to achieve those results. It would need to spend more time explaining how it could go about achieving those ends, much less political actors in the state.
So, it didn't include that language. But there is no doubt, from every commentator looking at the outcomes, that that is precisely what it did when drawing the new map. It consciously engaged in a partisan fairness inquiry of mapmaking, when that was not articulated expressly as one of the three criteria it asked the legislature to use in its new map, and when that was not expressly one of the criteria that it found required by the commonwealth's constitution.
That is deeply troubling, I think, from, to use a generic term, the "rule of law" perspective. It is fairly subversive, in my view, to articulate one basis for a decision but then actually act on another, or to insist that the commonwealth's constitution demand one thing but act like it insists another. Or, even if the court didn't believe that the constitution demanded it, the choice to overtly engage in a partisan fairness inquiry without any explanation or justification about how it made that choice.
(An expected contra: courts are partisan and political actors, and if the state legislature isn't going to be required to do so, maybe courts shouldn't either. That case, then, simply has to be made....)
There are two legal challenges to this decision that, I think, offer a slightly greater chance than some commentators I've seen are giving credit for.
The first is that this is simply too late in the game for these chances. The Pennsylvania Supreme Court's reasoning only came out two weeks ago; the legislature and governor had days to come up with a remedy before defaulting to the court. The United States Supreme Court has allowed "flawed" election maps to be used when the chances are too close in time to the election, and a minimal decision from the Court, citing Purcell or redistricting decisions, might simply hold off this decision for 2018.
The second, and the one that I've wondered more about, is the Bush v. Palm Beach County Canvassing Board decision. The oft-forgotten predecessor to Bush v. Gore, this was a unanimous decision from the Supreme Court. It wondered what the basis for the Florida Supreme Court's decision was in creating rules for the recount--federal law, or state law? It sent the matter back for further clarification, because the court's original order was so opaque. That's because the state legislature still had a priority in establishing a process to choose presidential electors, and a state-based decision that strayed too far from the constitutional commitment might be problematic.
I am not sure the Supreme Court would even engage in this process, except that it would assuredly, postpone the decisionmaking for the 2018 election. But, to the extent that the criteria used by the Pennsylvania Supreme Court were sufficiently opaque as to fail to offer the legislature with the opportunity to draw a map consistent with its desired outcomes, the Supreme Court might send it back to require that this commitment be taken more seriously. In LULAC v. Perry (2006), Justice Kennedy wrote that "a lawful, legislatively enacted plan should be preferable to one drawn by the courts," emphasizing adherence to the "ordinary and proper operation of the political process." To the extent that the Pennsylvania Supreme Court's subversive decision failed to give the legislature adequate opportunity to address its concerns in fashioning a remedy, a challenge may have more success in at least postponing the decision for 2018 than some are giving it.
Until then, we shall see if this process plays out in other states--opaque process-based neutral criteria articulated by a state supreme court, then value judgments never previously articulated like partisan fairness incorporated into the final judicial remedy.
UPDATE: Nate Cohn has this important contribution to evaluating the premise of this analysis: that the map does tend to advantage one party over another in the drawing of lines. Whether that's an appropriate remedy depends, of course, on how one interprets the analysis above.