Updated: Thursday, February 8, 2018, 7:00 PM
HARRISBURG — It’s official: The state legislature will not pass a new congressional map before the Pennsylvania Supreme Court’s Friday deadline.
But the Republican leaders who control both chambers weren’t ready Thursday to cede the redrawing of districts to the state’s highest court, which has a Democratic majority.
Senate President Pro Tempore Joe Scarnati (R., Jefferson) and House Speaker Mike Turzai (R., Allegheny) were considering submitting a draft map to the governor Friday, staffers said. Then they could call lawmakers back in the coming days to vote on that map, or a different one.
“We’re blazing new ground here, and we’re trying to meet as many markers as we possibly can,” said Drew Crompton, chief of staff to Scarnati and the Senate’s top lawyer. “I don’t sit here and say this is the perfect solution, but we’re trying to do the best we can.”
Whether that plan works could boil down to the interpretation of a key word in the court’s order — and whether justices believe the lawmakers are acting in good faith.
In an order issued Jan. 22, the state Supreme Court declared the current map of districts unconstitutional, and said that if the General Assembly wants to create a map for consideration “it shall submit such plan for consideration by the Governor on or before” Friday.
Under the order, Gov. Wolf was given until Feb. 15 to approve a map and send it to the court. If that deadline is not met, the Supreme Court said it will draw the district lines itself, considering proposals from the parties in the case.
Republican attorneys, noting that the court order wrote “submit” rather than “enact,” believed that might open door for Scarnati and Turzai, the highest-ranking members in each chamber, to present a joint plan to the governor — without votes. But in its majority opinion, finally released Wednesday, the word enact was used multiple times, implying that floor votes would be needed.
“I think they have spoken pretty clearly that it needs to be voted on by the House, the Senate, and sent to the Democratic governor through the legislative process,” said House Majority Leader Dave Reed (R., Indiana), himself a congressional candidate. (Reed has said he is not participating in the map-drawing to avoid a conflict of interest.)
Neal Lesher, a spokesman for Turzai, stressed Thursday that nothing had been decided. “We are not sure that anyone can really say what the court is thinking here, as they seem to be just making it up as they go,” he said.
Some outside the Capitol think the tactic of submitting a map approved by leaders and having the legislature pass it next week could pass the court’s muster.
“Courts do not love the prospect of drawing the lines themselves. So, if the Supreme Court here sees the parties working diligently, and ultimately within the Feb. 15 deadline, then I suspect the court will allow the process to continue to play out,” said Joshua A. Douglas, a law professor at the University of Kentucky and an election law expert.
Should legislative leaders take such an approach and attempt to pass a map after the deadline, the governor “will evaluate his options,” according to spokesman, J.J. Abbott.
An empty bill, into which legislators could eventually insert a map to consider, remains before the House. It’s unclear whether the House will return, though representatives remain on call since a session was canceled Wednesday due to weather.
Senators were told Thursday that they should be open to the possibility of returning next week.
Exactly what a new map would look like remains to be seen. Crompton stressed that leaders were still talking, but said likely targets for change include the Seventh District in suburban Philadelphia represented by Republican Pat Meehan, and the 12th District, which includes parts of Allegheny and Westmoreland Counties in the west and is currently represented by Republican Keith Rothfus.
Crompton said a new map would likely take into account the court’s preference for compact and contiguous districts and possibly where incumbents are placed. Still, he said, the court did not provide guidance on some key issues, such as how much political influence counts as too much.
Of the court, he said: “They didn’t answer some of the questions that I thought they would.”
Staff writer Jonathan Lai contributed to this report.