On January 22, 2018, the Pennsylvania Supreme Court in a landmark decision found that the state’s congressional map violated the Pennsylvania Constitution, and the court issued its own map to remedy the gerrymandered one. This opinion marks the first time the Pennsylvania Supreme Court relied on the Free and Equal Elections Clause of the state constitution to overturn a congressional map on the ground that it was illegally partisan. Although the map was overturned for this reason alone, the new map has important implications for African American voters in the state.
Pennsylvania’s 2011 congressional map—which was struck down by the court—was created after the state was required to reduce its districts from 19 to 18 following the 2010 Census. The 2011 map was sponsored by Republican leadership and was overwhelmingly favorable to that party. In the three elections since its adoption, Republicans won the same 13 districts each cycle while Democrats won only five, despite the fact that Republicans received, at most, 55 percent of the vote. In 2012, Democrats won a majority of the vote across the state, but again won only 5 out of 18 seats.
The 2011 map is notable for creating one of the most gerrymandered districts in the country. The 7th District, which has been nicknamed “Goofy Kicking Donald Duck” because of its bizarre shape, expands across portions of five counties, splits 26 municipalities, and is connected at one point only by a medical facility and another by a single restaurant.
7th Congressional District from 2011 Map (govtrack.us)
Although not central to the case before the Pennsylvania Supreme Court, there is evidence that the 7th District was used to dilute the vote of African Americans. The district included Cheyney University—one of the first historically black universities in this country—as well as the city of Chester, which is over 70 percent African American. Chester was previously part of a different district that regularly elected Democrats. After being moved into 7th District, along with more suburban and rural areas of the state, the district elected a Republican representative in each of the three elections since its creation. The court’s redrawn map, however, returns Chester and the university to a likely Democratic district. It also creates two majority-minority districts, as found by the NAACP Pennsylvania State Conference, similar to those in place before the 2011 map.
A group of Pennsylvania voters first challenged the 2011 map in federal district court, but a three-judge panel rejected that the map violates the U.S. Constitution. Another group of Pennsylvania voters and the League of Women Voters then challenged the case in state court, claiming that it violates the Free and Equal Elections clause of the state constitution because of illegal partisan gerrymandering. The Pennsylvania Supreme Court ultimately agreed.
The Free and Equal Elections Clause, which “has no federal counterpart,” states that “[e]lections 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.” The court construed this language to mean that “all voters have an equal opportunity to translate their votes into representation.” By engaging in “extensive, sophisticated gerrymandering and partisan dilution,” as the court found, the 2011 map prevented a “free and equal” election.
The court concluded that the only appropriate remedy for this violation was the creation of a new map that complied with neutral criteria that protect against vote dilution and unfair partisanship. When the legislature and governor were unable to produce a map by the deadline, the court implemented and adopted its own map for use in the upcoming 2018 elections.
The decision to implement a new court-drawn map was then unsuccessfully challenged in federal district court. Republican leadership moved for a temporary restraining order and preliminary injunction, arguing that the supreme court usurped the authority of the legislature in imposing this map. The court initially denied the request for a temporary restraining order, but set a briefing schedule for a preliminary injunction motion. Ultimately, the district court, in a three-judge panel, held that the Republican leaders lacked standing to bring their suit. The court dismissed the case and denied the preliminary injunction.
This suit was bound to fail. Not only on standing, but many prior courts, both state and federal, have similarly issued court re-drawn maps when the legislature fails to act. Doing so was not beyond the Pennsylvania Supreme Court’s authority. Now that this action is dismissed, the new map, which removes partisan gerrymandering and benefits African American voters in the state, will go into effect for the May 15 primary elections.
Jessica Clarke is with Emery Celli Brinckerhoff & Abady, LLP, in New York, New York.