Redistricting lawsuit could force change
After the 2010 census, Republicans were in control of both houses in the Pennsylvania Senate. There was also a majority of Republican judges on the Pennsylvania Supreme Court, and that made a big difference in the state when new districts were drawn, resulting in a map that heavily favored Republicans.
Pennsylvania districts are redrawn by a four-person commission. The leaders of both parties in the House and Senate choose one commissioner apiece. If, however, the commissioners can’t come to an agreement about who will serve as chair within 45 days of being seated, the state Supreme Court appoints a fifth person to serve as chair.
This commission is the only entity with the power to draw new districts; the districts do not then need to be approved by the legislature or the governor. So this system gives enormous power to the leaders in the House or Senate, who have the power to punish fellow lawmakers by drawing them out of safe districts if they don’t toe the party line.
At the current time, Democrats control the Supreme Court and are likely to do so after the 2020 census, and therefore Democrats are likely to have the upper hand in the redistricting process. It’s not surprising then that there’s is a growing bipartisan movement in Harrisburg to fundamentally alter the redistricting process, because it pretty clear that most Republicans would not like to be on the receiving end of what happened after 2010.
According to a lawsuit filed against lawmakers by the League of Women Voters of Pennsylvania and various individuals, lawmakers in the state committed extreme gerrymandering in Pennsylvania to the point where many of the state’s voters no longer have a voice that can be heard.
The lawsuit says the lawmakers used the “latest computer modeling techniques” to maximize the number of seats Republicans would win in future elections.
The lawsuit says, “And their effort has been overwhelmingly successful. In 2012, Republican candidates won only 49% of the statewide congressional vote, but remarkably won 13 of 18—or 72%—of Pennsylvania’s congressional seats. In 2014 and 2016, Republican candidates retained the same 72% share of Pennsylvania’s seats, even while winning only 55% and 54% shares of the statewide vote.
“The 2011 Plan achieved these lopsided results by ‘packing’ Democratic voters into five districts that are overwhelmingly Democratic, and ‘cracking’ the remaining Democratic voters by spreading them across the other 13 districts such that Republicans constitute a majority of voters in each of these 13 districts. The result is a districting plan that is utterly unresponsive to—and often flouts—the will of voters. For example, even though Democratic candidates won 6 [percentage] points more in the statewide vote in 2012 compared to 2014, the number of Democrats elected was no different across the two elections.”
The lawsuit was filed in June, and in early November in a four-to-three vote the Supreme Court ordered the Commonwealth Court to issue a ruling in the case by the end of December. The decision, whatever it may be, is likely to be appealed.
Meanwhile, proposed legislation in Harrisburg (HB722 and SB22) advocates for an impartial, independent citizens’ commission to direct the redictricting process rather than having politicians draw their own district lines.
In a related case, the U.S. Supreme Court will be making a decision next year about whether Wisconsin’s current districts were unconstitutionally drawn. In the aftermath of the 2010 census, Republicans took control of the legislature and governor’s office and used those same computer models and voting data to redraw the maps with a heavy tilt toward Republicans. In three elections since then, Democrats won a majority of votes cast for Assembly candidates, but they never achieved more than a 39 out of a total of 99 votes. If the United States is supposed to be governed by the will of the majority, the states of Pennsylvania and Wisconsin are falling well short of the mark.
The U.S. Supreme Court has struggled to deal with the issue in the past. While some justices have opined that some forms of extreme gerrymandering would be unconstitutional, the court as a whole has never come up with a standard for measuring how much gerrymandering is permissible.
A lower-court federal judge in the Wisconsin ruled against the Wisconsin Republicans over what was called an “efficiency gap,” which is a calculation based on the number of voters who voted for the losing candidates. It’s not clear whether the U.S. Supreme Court or the Pennsylvania Supreme Court will use the efficiency gap measure to arrive at a ruling, but it should be clear to everyone that when a political party wins a minority of votes but wins a big majority of legislative seats, there is something very wrong with the system.
And though PA voters can’t influence which way the courts are going to rule, they can certainly let their representatives know that they support a legislative solution to the problem, if the judicial branch can’t get the job done.