Many are asking what’s taking the U.S. Supreme Court so long to act on Pennsylvania’s gerrymander case.
But another key question is, what happens once the Supreme Court acts?
Tuesday is the deadline to file petitions to run for Congress. So, expectations are that court action is imminent.
But even after the Supreme Court acts in what is a tale of high-stakes politics and political revenge, ramifications are expected for some time.
“All we know is this isn’t over. What we don’t know is how long it lasts.”
So says Michael Gerhardt, constitutional scholar at the National Constitution Center. He adds, “Everybody’s waiting for movement. And nobody’s moving.”
You know the basics, right?
Republican legislature draws congressional districts in 2011 favorable to Republicans. Democratic state Supreme Court in 2018 rules maps unconstitutionally partisan, draws new maps favorable to Democrats. Everybody goes bat-swat crazy.
Challenges erupt. There are cries of constitutional crises and legal fees mounting to millions of tax dollars. Pleas to the nation’s highest court. Talk of impeaching state Supreme Court justices. And, now, many questions.
The most immediate? Will the U.S. Supreme Court grant an emergency stay against new maps on grounds that the U.S. Constitution says legislatures, not courts, hold map-drawing authority?
The high court already said “no” to one stay. Last month, within days of a request. And while most predict another “no,” the court’s had the second request for weeks. Some see that as signaling a different outcome.
Such as canceling the May 15 primary. Or reverting to 2011 maps. Which, and I’m only guessing here, just might lead to some disruption and/or more litigation.
And even if SCOTUS again says “no” on this case, there’s another gerrymander case before a three-judge panel here in U.S. Middle District Court.
It’s from eight of our 13 GOP congressmen and two state senators. It seeks to stop implementation of new maps and use the 2011 maps — those already ruled unconstitutional – in 2018 elections.
Sounds like the same stuff the stay is about, yes? Well, guess what?
Penn Law professor Seth Kreimer is among constitutional experts saying this case likely moves ahead even if SCOTUS opts out of the first case.
“Denial of a stay is not a binding precedent,” Kreimer says. “It doesn’t resolve any issues on the merits … but I’d expect the three-judge panel to move pretty quickly, and my money would be on the Pa. Supreme Court map being the one for this year’s elections. But I’ve been surprised before.”
OK, let’s say SCOTUS and the Middle District resolve the case in ways that keep the new map. We then could face fallout ranging from additional litigation from candidates or incumbents disadvantaged by the new map to ramped-up revenge.
There is serious buzz in Republican quarters about impeaching one or more Democratic state Supreme Court justices.
What initially sounded whacky got some push from GOP Sen. Pat Toomey, who publicly said the idea should be discussed.
Bruce Ledewitz, a constitutional law professor at Duquesne University, says “absolutely” there are grounds for action, that the state court acted with “an appearance of partisan intent, ran roughshod over the issue, and violated norms of judicial conduct.”
Since impeachment would start in the GOP House, I check with House Speaker Mike Turzai. He says that “some members have taken steps” toward impeachment, adding that the House “will review appropriate remedies as we move forward.”
So, there you have it.
What started as a long-ball lawsuit last June from the League of Women Voters, some actual voters, and Philly’s Public Interest Law Center to, ostensibly, reduce partisanship in redistricting and calm the unruly seas of Pennsylvania politics, could end up creating electoral, judicial and constitutional commotion and/or chaos for some time to come.
Big picture? Republicans won elections and used their power to reach for more. That’s politics, not public service. Democrats won high-court control and used their power to strike back. Understandable, even fair. But the process to push the case – allowing too little time, causing too much confusion regarding the upcoming congressional election – is problematic.
And that, for both parties and for voters, could harden the edges of the very partisanship the case supposedly sought to soften.