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Supreme gerrymandering

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The Supreme Court of the United States (SCOTUS) ruled on June 27 that there’s nothing the court can do about extreme gerrymandering in the states. Sure, the majority said, the court has stepped in to answer other questions on redistricting in the past. Sure, Chief Justice John Roberts wrote that gerrymandering is “incompatible with democratic principles.” But, when it came to tackling gerrymandering itself, the majority found that the courts’ hands had been tied by the framers of the constitution: They put the issue of redistricting in the hands of state legislatures, state courts and Congress, not the federal courts.

The Pennsylvania Supreme Court (PSSC), as it turns out, has partially addressed the issue in that state, and we’ll have more on that in a minute, but first the opinion from the four liberal justices, who believe the majority abandoned their responsibility. Justice Elena Kagan wrote in the dissent that part of the role of SCOTUS is to defend the foundations of democracy, and, “None is more important than free and fair elections.”

This was clearly a political decision meant to help those in power retain that power. An analysis by the Associated Press found that, in the 2016 election, Republicans picked up an additional 22 seats in the U.S. House of Representatives probably because of gerrymandering. But the move by the SCOTUS majority, while frustrating, will almost certainly erode over time.

Voters in Ohio, Michigan, Colorado, Missouri and Utah voted in favor ballot initiatives that will reduce redistricting after the 2020 census.

The PSSC has addressed the issue. Before the 2018 election, it ordered the redrawing of the congressional map drawn up by a Republican-controlled committee after the 2010 census. That map was cited as one of the most gerrymandered in the country. In a state with slightly more Democratic registered voters than Republicans, Republican Congressional candidates held 18 of the House of Representative seats in Washington, while Democrats held only 13.

The League of Women Voters of Pennsylvania filed a lawsuit against the state over the congressional map, which featured one famous district that voters said looked like the “Goofy kicking Donald Duck.” That district was so gerrymandered that at one point it was only as wide as a single building. The PSSC ultimately sided with the league and ordered the new map.

At the time, Republicans in Harrisburg believed that the court had overstepped its authority and they appealed to SCOTUS to overturn the PSSC. But largely because the PSSC was based on the state constitution and not the Federal Constitution, SCOTUS declined to intervene. It is worth noting that between the drawing of the 2010 map and the 2018 decision, the PSSC had changed from being a majority-Republican court to a majority-Democratic court. Had the court stayed in Republican control, the outcome would likely have been different.

But the decision had significant impacts statewide, including in Northeast Pennsylvania. It is the reason that Democrat Matt Cartwright came to represent Hawley and Honesdale in Washington. Before the court-ordered redrawing, the two boroughs has been excluded from the district that included Scranton and Wilkes-Barre, which have many more registered Democrats than the surrounding rural areas, which are dominated by Republicans.

The court decision impacted the congressional districts, but it did not have any impact on state Senate and House districts, which many analysts say are also gerrymandered with the advantage going to Republicans. Lawmakers in Harrisburg have been trying to come to an agreement about how to redraw districts, but, so far, have not made much progress.

If lawmakers fail to reach an agreement, it is likely that after the next census in 2020, the advantage will shift from the Republicans to the Democrats. That’s because the PSSC plays a unique role in the state in the redistricting process. The committee that determines the new redistricting maps is made up of the top two Republicans and top two Democrats in the Senate and the House. Together they are supposed to agree on a fifth member who will cast the deciding vote, if there are differences between the two parties. If they can’t agree on who should become the fifth member, the PSSC steps in and appoints someone. After the 2010 election, as mentioned previously, Republicans were the majority on the court and they appointed a person who sided with Republicans. After the 2020 census, it is very likely that Democrats will still be the majority, and unless some other agreement is reached, they will likely support a member who will be helpful to Democrats.

SCOTUS had an opportunity to set a national standard for redistricting, and to ensure that the redistricting process was moving in the direction of fairness. Instead, the majority said, “Sorry, not our job.” Now the process will play out state by state, and fairness is not guaranteed.

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