HARRISBURG — State Republican leaders on Thursday asked the U.S. Supreme Court to block a Pennsylvania Supreme Court order to redraw the congressional district maps in the commonwealth, arguing that the state justices intruded on their turf.
“In short, the question in this case is whether the Pennsylvania Supreme Court is the Pennsylvania ‘Legislature’ under the federal Constitution, and the answer to that question is a resounding no,” lawyers for Senate President Pro Tempore Joe Scarnati (R., Jefferson) and House Speaker Mike Turzai (R., Allegheny) wrote in the petition to Justice Samuel A. Alito Jr.
Their request, experts say, is a long shot. It was filed shortly before the state Supreme Court rejected a request from the same Republican leaders to stay its own order.
The state justices on Monday declared the current congressional map an unconstitutional partisan gerrymander, siding with a group of Democratic voters who said it was drawn to favor Republicans and discriminate against Democrats. The court, which has a Democratic majority, ordered the map redrawn in time for the primary election in May, giving the GOP-controlled General Assembly less than three weeks to pass a new plan and get it signed by Gov. Wolf, a Democrat.
If lawmakers can’t get it done, the state justices said, they would step in and adopt their own map.
The Pennsylvania court, in its order, required that new districts be compact and contiguous and fit other criteria. Attorneys for Republican leaders argued that violates the U.S. Constitution, which says that “times, places and manner of holding elections” should be “prescribed” by state legislatures.
“These standards amount to mandatory redistricting criteria of the type typically found in a legislatively enacted elections code,” attorneys for the Republican leaders wrote in their petition to Alito. “But no Pennsylvania legislative process — not the General Assembly itself, not a constitutional convention, not a referendum, not even an administrative agency with delegated rule-making authority — adopted or ratified those criteria.”
David Gersch, a lead attorney for the voters who brought the case, called the arguments “embarrassing.” He noted that the same parties spent two months trying to defeat a parallel challenge in federal court, contending then that the issue was one for the state to decide. “Now that they have lost in the highest court of the commonwealth, the legislators turn around and say the exact opposite,” he said.
Experts questioned the validity of the GOP’s latest argument, noting that the Pennsylvania Supreme Court’s order explicitly says it is based on the state constitution. Courts have also drawn congressional maps before, including at the federal level.
“In the vein of the upcoming Super Bowl featuring the NFC Champion Philadelphia Eagles, this is a Hail Mary if there ever was one,” said Michael Li, a redistricting expert at the Brennan Center for Justice at New York University.
Meanwhile, as legislators prepare for the redistricting. Republicans have complained that the state justices haven’t issued the majority opinion that would explain their conclusion. Democrats, meanwhile, say they have enough information to begin drawing a new map.
It’s unclear when the state justices will issue the opinion. At least three of them were scheduled to appear at a bar association conference in Florida that runs through Sunday. It’s also unclear which justice will take the lead on writing it, as that information is often kept confidential until the opinion is entered.
Ronald D. Castille, a retired Pennsylvania chief justice, said often one justice’s staff will write an opinion, potentially working around the clock. After that justice approves the opinion, it goes to the others for review.
“They put themselves under the gun,” said Castille, a Republican who in a 2012 state legislative redistricting case wrote an opinion that was released nine days after the order.