U.S. Supreme Court Justice Samuel A. Alito Jr. on Wednesday asked participants in a key Pennsylvania gerrymandering case to respond to a request from top Republican lawmakers that the nation’s highest court step in and block the new congressional map.
State Senate President Pro Tempore Joe Scarnati (R., Jefferson) and House Speaker Mike Turzai (R., Allegheny) have asked the U.S. Supreme Court to stay the Pennsylvania Supreme Court’s ruling overturning the previous congressional map and imposing a new one.
Alito gave participants in the case until 3 p.m. Monday to file responses to that request.
He made a similar move a few weeks ago after Scarnati and Turzai filed essentially the same request to step in and stop the Pennsylvania Supreme Court from overturning the state’s congressional map drawn in 2011. In that first request, Alito also sought responses from the parties in the case before ultimately denying the request without comment and without referring it to the whole court.
Both requests use the same basic legal argument, with the lawmakers saying the state court’s action violated the elections clause of the U.S. Constitution, which gives state legislatures the power to run elections.
Experts have said the current request for a stay is a long shot, especially because it is so similar to the previous one.
“The biggest tea leaf is probably what Justice Alito did the last time when he denied the stay without even referring it to the whole court,” Michael Li, a redistricting expert at the Brennan Center for Justice at New York University, said Wednesday. “Republicans are essentially making a variant of the same argument, so unless Justice Alito has changed his mind, it’s hard to see how you get five votes for a stay — and he may even decide again that this is not something that even needs to go to the whole court.”
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Richard L. Hasen, a law and political science professor at the University of California, Irvine, also has said the latest challenge before Alito is almost identical to the previous unsuccessful one.
“The only thing that’s changed is the ripeness concern, that now there is a map,” he said last week. Hasen said it remained unlikely that Alito would grant the request, calling it a “very, very long shot.”
Participants in the case, including Gov. Wolf’s executive branch and the voters who brought the lawsuit, plan to file responses.
The Pennsylvania Supreme Court, which has a Democratic majority, struck down the prior congressional map in January on the grounds that it violated the state constitution because it was a partisan gerrymander drawn to favor Republicans. The court gave the Republican-controlled legislature and the Democratic governor less than three weeks to approve a new map; when that didn’t happen, the court worked with an outside expert to adopt its own.
Within days of the court’s announcement that it intended to impose a new map, Scarnati and Turzai filed their first legal challenge in the U.S. Supreme Court. Their second challenge was submitted Feb. 21, just two days after the state Supreme Court handed down the new map, and was officially docketed this week.
Election analysts have said they expect Republicans would still have a slight advantage under the new maps, but not as wide an advantage as they had under the earlier maps. Since the last one was enacted in 2011, Republicans have won 13 of the 18 House seats in every election.
The redrawing, and the subsequent legal challenges, comes at a time when the Democratic Party is hoping to regain control of the Republican-led U.S. House and eyeing Pennsylvania as a place to possibly gain ground.
A separate legal challenge, filed by eight Republican members of Congress and two Republican state senators, is pending before the U.S. District Court in the Middle District of Pennsylvania. Three judges, all of whom were nominated for the bench by Republican presidents and confirmed by the U.S. Senate in bipartisan votes, were assigned to handle that case. Those declined to immediately block the map, instead fast-tracking the schedule so all sides could make their cases. A hearing for a preliminary injunction in that case is scheduled for next week.