Pennsylvania’s remapping marked by hyper-partisanship
In December, a Democratic activist group led by former U.S. Attorney General Eric Holder filed a lawsuit over congressional redistricting in Pennsylvania, where the state House voted on a proposed map last week. The National Redistricting Action Fund argues that Democratic Gov. Tom Wolf and the Republican-majority legislature are at an “impasse,” and therefore that the state Supreme Court should apportion the state’s 17 congressional districts.
The group’s argument was evidently willed into reality by Wolf in a subsequent interview with Harrisburg’s ABC-TV affiliate. Wolf said not only that he won’t negotiate with legislators but also that if he vetoes what they send to him, “the Supreme Court will come up with the map.” Democrats hold a 5-2 majority on the court.
Wolf is requiring that the legislature meet a set of “principles” to avoid a veto. Those principles are as uncontroversial as they are vague and subjective — a fact that the governor has underscored by his actions.
Beginning last year, GOP Rep. Seth Grove, chairman of the state House committee charged with creating an initial map, set out to manage the “most transparent congressional redistricting in Pennsylvania history.”
The process included statewide hearings and a website where Pennsylvanians could submit draft maps and provide comments. On Dec. 15, Grove’s committee passed a slightly altered citizen map.
But Wolf, unimpressed, issued a public letter on Dec. 28 decrying the committee’s violation of his principles.
“[Pennsylvanians] neither want nor deserve a map drawn by self-serving politicians looking to feather their own nests,” he wrote.
Grove has nonetheless repeatedly invited Wolf to meet and publicly discuss the issue. In a press release issued in early January, for example, Grove stated that he took “the liberty to reserve room 60 East Wing in the Capitol on Thursday, Jan. 6, 2022, from 1-5 p.m.” Wolf, though, has kept his promise not to participate and only released his own proposed map on Saturday – actions that look to many like escapism.
“There won’t be a map that’s ever good enough for Gov. Wolf because he wants this to go to the Supreme Court,” said David La Torre, a GOP consultant who served as press secretary to former Gov. Mark Schweiker. “That’s why it’s silly that he’s calling for transparency.”
Given the state Supreme Court’s Democratic majority – it’s among the few judicial bodies seated by explicitly partisan elections – Republicans view the court as anything but fair. This is especially true following League of Women Voters v. Commonwealth, a 2018 decision that Jason Torchinsky, a nationally renowned election law expert and attorney for the case defendants, called unprecedented. Early that year, the court ruled that the state’s congressional map, in place since reapportionment in 2011, was unconstitutional. It then abrogated the redistricting duty to itself after giving the legislature a “full eighteen days to submit a plan,” according to the ruling. Four districts flipped from Republican to Democrat in the November midterm election.
This isn’t to suggest that there’s no role for the courts in redistricting, according to Torchinsky. He points to the 1992 Pennsylvania case Mellow v. Mitchell, which – similar to today’s situation – addressed reapportionment after the state lost congressional seats, rendering the existing map unconstitutional. After an impasse, the court chose a map created by the state’s House speaker. By selecting that interim map, the court avoided statewide elections for all congressional representatives as would be required by federal law.
The key differences today, Torchinsky notes, are the impetus for the case being a constitutionally required reapportionment and the level of policymaking assumed by Pennsylvania’s high court. By way of contrast, he says, consider that in Wisconsin, the state Supreme Court has faced similar circumstances but restrains itself to ruling on an individual map’s constitutionality and then allows the other branches to manage explicit redistricting policy.
“That’s the difference between an activist court and a conservative court,” said Torchinsky.
Such restraint seems unlikely in Pennsylvania, given its high court’s willingness to wade far into political waters. And that may be what the governor and Holder’s group are hoping for.
“The Mask of Neutrality,” a 2019 study by North Carolina State University’s Jordan Carr Peterson, underscores the reasoning. Peterson found that “judges deciding redistricting cases employ a strategy of partisan calculation” by increasing competition for “legislative incumbents from the opposite party.”
Thanks to Wolf’s intransigence, the Keystone State’s new congressional districts will likely be produced by America’s most partisan redistricting committee, wearing a mask of neutrality: the Supreme Court of Pennsylvania.
Michael Torres writes about Pennsylvania politics and policy issues. Follow him on Twitter at @MindofTorres.