Pa. Republicans ask state Supreme Court to stay its own gerrymandering order

Congressional districts in Southeastern Pennsylvania. Pennsylvania’s map was ruled an unconstitutional partisan gerrymander by the Pennsylvania Supreme Court.

A day after the Pennsylvania Supreme Court ruled that the state’s congressional map is an unconstitutional partisan gerrymander and ordered legislators to draw a new map, Republican leaders on Tuesday asked the court to halt its order.

In their application for a stay, State Senate President Pro Tempore Joe Scarnati and House Speaker Mike Turzai said the ruling “throws the 2018 Congressional elections into chaos” and “raises a profoundly important question under federal law” that should be resolved by the U.S. Supreme Court.

Their filing contends the current map has been used for so long, and the order comes so late in the election timeline, that a change would confuse voters and candidates. “The Court’s decision poses a profound threat to the integrity of Pennsylvania’s upcoming Congressional elections,” it says.

Asking the court to stay its own order is a necessary step before Republicans can ask the U.S. Supreme Court to intervene, said Michael Li, a redistricting expert at the Brennan Center for Justice at New York University. He said the state court was almost sure to deny the request.

In their order Monday, the justices, most of whom are Democrats, found the state’s congressional map of 18 districts “clearly, plainly, and palpably” violates the state constitution, giving Republicans an unfair edge by drawing boundaries likely to ensure GOP victories. They ordered legislators to draw up a new, fairer map by next month.

Republicans said Tuesday that the high court’s order oversteps its bounds, essentially legislating from the bench, and gave them an unreasonably short amount of time to comply. They also faulted the court for not issuing a full opinion in the case — it was unclear when that opinion would be released — which they said they would need to understand what is wrong with the current map and how to  draw a new one.

“There’s an order, there’s no opinion, and there’s a specific date of when they want things done,” said Steve Miskin, a spokesman for state House Republicans. “It’s a near-impossible task, what they’ve asked.”

Pennsylvania’s congressional map is enacted as law, meaning it must pass through the General Assembly and be signed by Gov. Wolf. Under Monday’s order, both steps must conclude by Feb. 15 or the court would “proceed expeditiously” to adopt its own map.

Republicans said they will begin the process of drawing maps but questioned whether it would be possible to do so with limited time and guidance. Jennifer Kocher, spokeswoman for Senate Republicans, likened the scenario to a parent tossing out a pile of laundry a child has folded and ordering it redone, without specifying what was wrong with the way it was initially folded.

But it’s not true that there is no guidance, experts said. In its order, the Supreme Court laid out some guiding principles, saying that a new districting plan “shall consist of: congressional districts composed of compact and contiguous territory; as nearly equal in population as practicable; and which do not divide any county, city, incorporated town, borough, township, or ward, except where necessary to ensure equality of population.”

Justin Levitt, a professor and associate dean at Loyola Law School in Los Angeles, said those principles are guidance enough for lawmakers to create an interim map for 2018.

“The Supreme Court did not leave it context-free; in fact it gave a really abundantly clear safe harbor, at least for interim districts, at least for this coming cycle,” he said.

In drawing the 2018 map, Levitt said, lawmakers can err on the side of caution, even without knowing where the exact constitutional line is.

“It’s true the legislators don’t know exactly how far they can go in being partisan, and that’s really the substance of the complaint, right?” he said. “The most reasonable construction of their complaint is: We got pulled over for speeding, we would like to speed as fast as possible, and you haven’t told us exactly what the speed limit is.”

Wolf’s office and Assembly Democrats said they had enough information to begin drawing a map, which they could update later.

“We know what our charge is,” Senate Minority Leader Jay Costa (D., Allegheny) said Tuesday. “We just need to get in a room and begin the work to do that.”

Staff writer Angela Couloumbis contributed to this report.