Working on a gerrymandering fix
There’s no question that political partisanship was the primary factor driving Republicans in Harrisburg as they redrew the congressional districts in the state in the wake of the 2010 census: their lawyers have admitted so in open court.
Thus, Pennsylvania has the situation in which Republicans have won 13 of the state’s 18 congressional seats in two of the last three election cycles and 12 in the third, even though Republicans have received only about 50% of the votes in all cases.
When arguing the case in front of the Pennsylvania Supreme Court on January 17, lawyers representing Republican leadership in the House and Senate argued that there is nothing illegal about maps that are drawn for such purposes. Mark Brady, a lawyer for House Speaker Mike Turzai, freely admitted that, for the purpose of redrawing the maps, voters had been divided into two groups based on how they had voted in the past, and inserted into districts based on voting history.
David Gersch, a lawyer representing the 18 state residents who are challenging the district maps, said the process used was a clear case of “viewpoint discrimination,” which is a violation of the state constitution.
On January 22, the court ruled that the maps are so gerrymandered that they are unconstitutional and ordered that the maps be redrawn. The court gave the legislature until February 9 to redraw the maps, which then must be approved by Gov. Tom Wolf by February 15. Failing that, the court will draw new maps.
Lawyers for Republican leadership in the House and Senate have previously hinted that such a decision would prompt them to appeal the matter to the U.S. Supreme Court. There is reason to believe that, should the case make it to the U.S. Supreme Court, the justices will not want to rush the process.
A couple of weeks ago, a lower federal court ruled that in North Carolina in 2016 voting maps were drawn by the Republican-majority legislature with the intent of discriminating against voters who did not support Republican candidates. The three-judge panel said the process used to create the maps violated the U.S. Constitution and the voters’ First Amendment rights.
The court ordered the General Assembly of North Carolina to come up with a new plan by January 24. Lawmakers appealed to the U.S. Supreme Court, which temporarily froze the order to redraw the districts; that makes it unlikely that changes to the district will be in place before the next election. The U.S. Supreme Court is considering gerrymandering cases from Maryland and Wisconsin.
Coming up with a “test” that would define when an attempt to gerrymander districts has gone too far and veered into discrimination has been a sticking point for courts for decades. But that excuse for the U.S. Supreme Court to drag its feet on finding a solution has disappeared, as the technology is now available for performing the redistricting process; it is possible for those redrawing the districts to compare thousands of possible maps in a very short amount of time. Algorithms exist to determine which maps are most likely to ensure that each party wins a percentage of districts that is roughly proportional to their popularity with the entire electorate—something that is not the case now in places like Pennsylvania, where Republicans have been winning a disproportionate share of the state’s 18 electoral districts, despite the fact that votes in the state overall are fairly evenly split between Democratic and Republican. Using the principal of creating districts that would meet fairness criteria, while also meeting traditional requirements of respecting municipal boundaries and keeping communities together, it would certainly be possible for a the U.S. Supreme Court to come up with the broad outlines of a test.
But whether or not the U.S. Supreme Court decides to step into the Pennsylvania case, meeting the current deadlines is going to be difficult. There are primaries scheduled for May, and candidates will start circulating petitions on February 13. Republicans have argued that there is not enough time to redraw the districts, even though, as noted, modern technology can create and evaluate thousands of maps in a day.
It’s not yet clear how the Pennsylvania case will play out, but momentum seems to be shifting slowly toward getting politicians out of the business of drawing their own districts, even without the support of the U.S. Supreme Court. Arizona and California have created independent commissions that now draw their districts, and Fair Districts PA (www.fairdistrictspa.com) supports such a solution for the Keystone State too.
The organization is showing a free film called “Gerrymandering” at the Hawley Silk Mill, Boiler Room, 8 Old Route 6, in Hawley, PA, on Saturday, February 10 from 2 to 4 p.m. It’s a good way to learn more about the issue.