All seven Pennsylvania Supreme Court justices made clear their thoughts on redistricting Wednesday, as in a rare move, each released their own individual opinion outlining where they fell on the recently enacted congressional map.
The court, in a February order, picked the so-called “Carter Map,” named for a group of voters represented by Democratic attorney Marc Elias’ law firm, to be the Commonwealth’s next map after Gov. Tom Wolf and the Republican-controlled General Assembly could not agree on a plan.
With Pennsylvania set to lose a congressional seat, the map had to be redrawn from 18 to 17 districts. As such, doing nothing was not an option, and a dozen or so plaintiffs, including lawmakers, citizens, and good government groups submitted maps to the court.
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The court backed the Carter map 4-3, with one liberal justice — Debra Todd — joining her two conservative counterparts opposing the selection.
Much of the court’s internal debate revolved around how to apply the court’s 2018 decision invalidating the commonwealth’s then Republican-drawn congressional plan as a partisan gerrymander to this decade’s redistricting impasse.
In that decision, five of the liberal justices agreed that looking at four core criteria — contiguity, compactness, equal population, and the splitting of political subdivisions, such as cities and counties — could help prevent a partisan gerrymander.
However, in the 2018 majority opinion, signed by four of the liberal justices, additionally argued that a map “although minimally comporting with these neutral ‘floor’ criteria” could “nevertheless operate to unfairly dilute the power of a particular group’s vote.”
Such a concern seemed front of mind for the four justices who picked the Carter plan.
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The Carter map itself was drawn by a Stanford University political science professor hired by Elias to draw district lines that would hew as closely as possible to the state’s current map, drawn and enacted by the court four years ago.
Chief Justice Max Baer’s majority opinion made clear that the court did “not select the Carter Plan because it utilized the least change approach, but because the least change approach worked in this case to produce a map” that meets the core criteria while balancing “subordinate historical considerations.”
Those considerations can include communities of interest, such as keeping the Lehigh Valley or Harrisburg and its suburbs together, or incumbent protection. But critically, another consideration the majority elevated was a map that “is reflective of and responsive to the partisan preferences of the Commonwealth’s voters,” Baer wrote for the court’s majority.
The opinions frequently cited the state Constitution’s Free and Equal Election Clause to justify the focus on partisan fairness.
The clause reads that “elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”
In a concurring opinion, Justice Christine Donohue, who was elected as a Democrat, said the language “is not to ensure that congressional district maps contain clean lines with few divisions and a minimum of irregular borders encompassing an equal number of people.”
“It is not a cartography lesson,” Donohue continued. “The overreaching objective of this constitutional provision is to prevent dilution of a citizen’s vote.”
However, the five-member liberal majority was not united behind the Carter map. Todd, who wrote the 2018 decision, dissented from last month’s decision. Instead, she wrote that she would have picked a plan submitted by a group of scientists and mathematicians that was drawn with an algorithm, known as the Gressman plan.
The Gressman plan
Todd argued that looking at the extra criteria, such as partisan fairness, was only needed if all the maps were similarly rated on the neutral criteria. And the Gressman plan, she argued, was superior because its districts were more compact, had exactly equal populations, and split fewer municipalities.
“This establishes, in my view, the plan’s superiority over all the others which our Court has considered,” Todd wrote.
Before the mapping dispute made its way to the state Supreme Court, the lower Commonwealth Court had considered the 13 maps. In a report to the high court, conservative Judge Patrica McCullough suggested that the justices pick a map passed by the Republican-controlled Legislature but vetoed by Wolf.
The other maps, McCullough argued, improperly considered partisan ends. Additionally, the Legislative map was “functionally tantamount to the voice and will of the People.”
On that note, none of the Supreme Court justices seemed to agree. In both the majority opinion and Todd’s dissent, the liberal justices countered that McCullough’s argument disregarded the governor’s own place in the process and electoral credentials.
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McCullough “improperly elevated the General Assembly’s role in passing legislation over that of the Executive Branch,” Baer wrote, “which is an inappropriate departure from basic constitutional principles of checks and balances and offensive to the separation-of-powers doctrine.”
In their own dissents, neither conservative Justices Sallie Updyke Mundy nor Kevin Brobson cited McCullough’s argument about the General Assembly’s proposal.
Mundy created a scoring system to judge the proposed maps on their compactness and municipal splits.
From her system, she would have picked the first map drawn by a group of Republican officials, including sitting U.S. Rep. Guy Reschenthaler, R-14th District, which had among the least splits of any proposed map. Her second choice was a map proposed by redistricting advocacy group Draw the Lines PA, which created a map by aggregating hundreds of citizen-drawn proposals.
The first Reschenthaler map
Mundy argued that it was “vital that this Court act in a politically neutral manner — and maintain the appearance of neutrality — to the greatest extent possible in order that the public may have confidence that our decision is reached via compliance with neutral legal principles alone.”
Otherwise, Mundy wrote, there may be an incentive for political branches might “to view an impasse as desirable in its own right — in the sense that they would rather ‘take their chances’ with this Court than seek political compromise.”
In his dissent, Brobson wrote that the Carter plan was unconstitutional on its face because its districts were not exactly equal in population — four districts had the right number of people, but four had one too many, and nine had one too few. Just one other submitted map, Brobson wrote, had such a population deviation.
Brobson also took issue with the justices who used partisan fairness as a measure in picking a map.
Precedent does protect Pennsylvanians from “excessive, unconstitutional, and thus unfair partisanship in the drawing of legislative districts,” Brobson wrote. But it does not “create any right in the people of Pennsylvania to the fairest among fair and lawful maps.”
“The ‘fairest of the fair’ inquiry is not a thicket; it is a quagmire,” he added. “It is an entirely subjective, partisan, and quintessentially political inquiry that belongs in the political branches of our government, not in the courts.”
His dissent did not indicate which map he preferred, which Donohue noted in her own opinion.
Brobson “fears that we have ‘invited, not discouraged this Court’s future involvement in the congressional redistricting process,’ but does not set forth an alternative selection that would avoid his pessimistic prediction,” Donohue wrote. “While which map should be chosen is subject to good faith disagreement, we must choose, and ‘I don’t know’ is the one answer we cannot give.”
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This won’t be the last time the court has to rule on district boundaries. Some nine challenges to the state’s new legislative maps were filed with the Supreme Court over the past month. The window to file suit closed over the weekend.
Arguments in the cases haven’t been scheduled, but the Wolf administration said it needs a decision by March 18 to allow for legislative candidates to get on the May 17 primary ballot.
Meanwhile, legal arguments over the congressional map will continue in federal court. But on Monday, the U.S. Supreme Court denied an emergency appeal from a group of Republican voters to block the Carter map, meaning it will likely stay in place for the 2022 election.
Originally published at www.penncapital-star.com,by Stephen Caruso
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