Judge recommends supreme court uphold congressional map

A Commonwealth Court judge recommended Friday that the Pennsylvania Supreme Court uphold the state’s map of congressional districts in a high-profile gerrymandering lawsuit that challenged the map as unconstitutionally drawn to benefit Republicans.

Democrats hold a 5-2 majority on the state’s high court, which has fast-tracked the suit. On Friday, the justices scheduled oral arguments for  Jan. 17 in Harrisburg.

“A lot can and has been said about the 2011 Plan, much of which is unflattering and yet justified,” wrote Commonwealth Court Judge P. Kevin Brobson, who had been tasked by the high court with holding a trial and submitting “findings of fact” and “conclusions of law” before the end of the year.

The plaintiffs had shown that partisan considerations were taken into account in creating the map, he wrote, and that more politically neutral maps could have been drawn that would not have been as favorable to the GOP.

But some degree of partisanship is considered acceptable in redistricting, he said, and the plaintiffs had not created a “judicially manageable standard” for the court to decide whether the map crossed the line.

“Petitioners, however, have failed to meet their burden of proving that the 2011 Plan, as a piece of legislation, clearly, plainly, and palpably violates the Pennsylvania Constitution,” he wrote. “For the judiciary, this should be the end of the inquiry.”

Brobson’s conclusions hit upon a point that has frustrated legal challenges in the past: In 2004, the U.S. Supreme Court came close to ruling that gerrymandering is a question outside the purview of the courts. In a key opinion, Justice Anthony Kennedy essentially threw down a gauntlet to lawyers and political scientists, saying that he believed some sort of standard could yet come before the courts, allowing judges to evaluate a map and determine constitutionality.

In the years since, social scientists and legal scholars have proposed a variety of measures. This term, the U.S. Supreme Court is hearing two gerrymandering cases, one from Wisconsin and one from Maryland, that could create just such a standard.

The state supreme court can take Brobson’s conclusions into account but will ultimately makes its own ruling on the case, League of Women Voters v. Commonwealth of Pennsylvania.

Some lawyers, advocates, and court-watchers from multiple sides had privately speculated that Brobson, who was elected as a Republican, would recommend upholding the map. But few have been willing to predict what would happen at the supreme court, given its Democratic makeup. Depending on where the source sits on the political spectrum, there is fear of an “activist court” that tries to make a statement or hope of a “progressive court” that saves the day.

If the high court orders the map redrawn, it could potentially do so in time for the 2018 primary elections. Lawyers for the voters have said they hope that will happen, and the supreme court has fast-tracked the case.

The suit was brought by a group of 18 Democratic voters, one for each of the state’s congressional districts. (The league was dismissed as a party to the suit, though its name remains.) The voters, represented by Philadelphia-based Public Interest Law Center, argued that Pennsylvania’s map is intentionally drawn to favor Republican candidates for the U.S. House of Representatives, discriminating against Democratic voters and candidates.

Pennsylvania’s map is considered one of the country’s most gerrymandered. Since the map’s adoption in 2011, Republicans have won 13 of the 18 seats, even as statewide votes have been roughly equal. Voters in Pennsylvania have elected both President Trump and former President Barack Obama; Democratic Sen. Bob Casey and Republican Sen. Pat Toomey; Democratic Gov. Wolf and Republican former Gov. Tom Corbett. All throughout, Republicans have won the same 13 U.S. House seats.

“This partisan gerrymandering needs to stop. It’s discriminatory and unfair, and it’s undermining people’s trust and confidence in the integrity of government,” lawyers for the plaintiffs wrote in a post-trial brief. “It matters so much that people have faith in the electoral process by which we select our representatives in Washington.”

Filed in June, the case was initially stayed by the Commonwealth Court before the petitioners successfully asked the supreme court to exercise a rarely used power and take the case up as a matter of public importance.

During a one-week trial earlier this month in Harrisburg, the plaintiffs called a series of professors as expert witnesses to attack the map from several angles. One said the map was unlikely to have been drawn according to politically neutral traditional principles, according to hundreds of simulated maps randomly drawn by a computer; another said the map unnecessarily divides “communities of interest” such as towns and counties.

But the plaintiffs faced one significant hurdle during the trial: Republican lawmakers invoked legislative privilege, a doctrine which protects from disclosure the deliberations of legislators to allow them to freely conduct business and create law. With such a shield in place, mapmakers could not be forced to hand over documents during discovery, testify, or in any way explain how they drew the maps and what factors they considered.

That meant that lawyers for top Republican lawmakers, particularly House Speaker Mike Turzai and Senate President Pro Tempore Joe Scarnati, largely did not defend the map itself. Instead, they sought to undermine the plaintiffs’ experts, questioning their credibility and methodology: What if the computer simulations missed an apolitical districting principle? What about the vast majority of towns, which were kept together in the plan?

“What the petitioners’ case forgets about is the fact that this is a legislative process and that ultimately, at the end of the day, computers aren’t the panacea that their experts claim them to be,” Robert Tucker, a lawyer for the Republican lawmakers, said in an interview after the trial. “And you have to have actual humans involved in drafting these lines.”

Tucker and other defense lawyers asked the court to rule that partisan gerrymandering is not justiciable, meaning it would be outside of the state courts’ purview. They also pointed to Democratic votes for the map to argue that it was bipartisan and thus could not be drawn to discriminate against Democrats.

Pennsylvania’s congressional map is enacted as state law, passing through the General Assembly and being signed into law by the governor. Every state redraws congressional maps after the Census every ten years, accounting for population shifts and changes in the number of House seats each state is given.

The next Census takes place in 2020, and Pennsylvania is likely to lose a U.S. House seat in the reapportionment process afterward. The next map would be drawn in 2021, to take effect for the 2022 elections.

If the Pennsylvania Supreme Court ultimately rules against the Republicans in this case, declaring the current map unconstitutional and ordering it redrawn, it would have a tight timeline to create a new map before the 2018 elections.

To stay on the current schedule for the May 15 primary elections, the state needs a new map in place by Jan. 23, Jonathan Marks, a Department of State official, said in an affidavit. The primary date could still be kept, if the court ordered certain changes, allowing a new map to come in as late as Feb. 20.

The latest a new map could come in, Marks said, is the beginning of April — delaying the primary election into the summer, no later than July 31.

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