HARRISBURG — Pennsylvania’s top two Republican lawmakers filed an appeal Thursday with the U.S. Supreme Court challenging a ruling that the state’s congressional boundaries constituted a partisan gerrymander and ordered them redrawn.
Senate President Pro Tempore Joe Scarnati (R., Jefferson) and House Speaker Mike Turzai (R., Allegheny), who twice were rebuffed by the court in seeking emergency requests to stop the redrawing of the maps pending appeal, now are asking the nation’s highest court to take up the case itself and rule on its merits.
Their request comes as a deadline looms for passing legislation to change the way the state draws its election lines in time for the next re-mapping in 2021.
The court does not have to take up the case; of the thousands of requests filed each year asking the U.S. Supreme Court to intervene, the success rate is in the single digits.
Scarnati and Turzai contend the state Supreme Court’s January decision seized legislative power to run elections and draw electoral maps. The court declared the 2011 map had been unconstitutionally drawn to favor Republicans and dilute Democratic votes. That move sparked a nasty legal and political fight that has also elicited talk of impeachment and accusations of partisanship and bad faith from all sides of the political spectrum.
Even Scarnati and Turzai acknowledge that their appeal will not affect the 2018 election. Nevertheless, the Republican lawmakers have said from the beginning that they thought it was important to fight the court’s ruling.
“We believe the voters of Pennsylvania deserve an answer as to whether the state Supreme Court overstepped its authority. We believe it did,” Scarnati and Turzai said in a joint statement Thursday evening.
The pair argue that while the state court’s decision was based on the state constitution, it treads on the U.S. Constitution by taking the power granted to the state legislatures to run elections.
The state high court invalidated the map drawn in 2011 “solely on newly created state-law grounds,” attorneys for Scarnati and Turzai wrote in their petition. “But if federal supremacy means anything, it plainly favors legislation founded on federal law over legislation founded solely on state law, not the other way around.”
Experts described their legal argument as weak, noting that federal and state courts have intervened multiple times before to redraw congressional and state legislative maps in states across the nation, and the U.S. Supreme Court has never stopped them. Asking the court to take on this case is a long shot, they said.
This has very little chance of success. State court ruled map unconstitutional under PA Constitution. There’s no obvious federal issue and #SCOTUS won’t want to become involved. https://t.co/LwnW9n9vuo
— Josh Douglas (@JoshuaADouglas) June 21, 2018
“It’s like the horror movie that was maybe scary the first time, but by the time you’ve seen it for the fifth time, you just roll your eyes because you know exactly what’s going to happen and you kind of wish you had your money back for going to see it,” said Michael Li, a redistricting expert at the Brennan Center for Justice at New York University.
A lawyer for the 18 Democratic voters who brought the state challenge — and who are now named as defendants in the appeal — said they had not received the filing late Thursday afternoon but were confident it would not succeed.
“This was a case decided under Pennsylvania law and there is no basis for the U.S. Supreme Court to step in,” said Mimi McKenzie, legal director at the Philadelphia-based Public Interest Law Center, which represented the voters. “I don’t think third time is the charm.”
Meanwhile, activists continue to lobby legislators to pass a measure that would open the doors to creating an independent commission to draw election lines, reducing the influence legislators have over the process.
That would require a change to the state’s constitution, meaning the legislation must pass in the exact same form in two consecutive sessions and then be approved by voters. State officials, taking into account deadlines for publicly announcing the proposals, say a bill would have to pass both chambers for the first time by early July if they want to have a commission in effect for the next redrawing in 2021.
Several proposals to create an independent commission — each varying slightly — are in the Republican-controlled House. Steve Miskin, a spokesman for House Republicans, said the court filing will not affect whether or when redistricting legislation gets a vote in the chamber.
Many in the Capitol are most closely watching Senate Bill 22, a bill that passed from the Senate to the House last week amid controversy. In addition to creating such a commission, an amendment added last week would allow voters to decide whether the state’s appellate judges — including Supreme Court justices — should have to run for election in regional districts, as opposed to statewide, as they do currently. Democrats widely decried the move as an attempt to gerrymander the state’s highest courts and retaliate against Supreme Court justices. Senate Republican leaders described the effort as an attempt to make sure the courts include more justices from rural areas; they noted that most of the Supreme Court’s current justices come from Philadelphia and Allegheny County.
House Majority Leader Dave Reed (R., Indiana) said this week that if a bill advances, he expects it will be that one — but likely with changes. Legislators are widely thought to be preparing dozens of amendments to the bill, if not more.
Reed, who controls the House calendar and therefore decides when representatives vote on various bills, said he would like to pass something in time to impact the next redrawing. But he didn’t make any promises.
“If that’s not the case, but we could still change the process for the next hundred years,” he said, “that’s still a good outcome to the situation.”