HARRISBURG – Justices from a divided Supreme Court of Pennsylvania have explained their rationales for recently selecting or choosing not to select the new congressional map that will govern politics and elections statewide for the next decade.
On Feb. 23, a 4-3 decision from the state Supreme Court confirmed the selection of a congressional map proposed by Democratic Party-aligned voters which features 17 congressional districts – meaning Pennsylvania will lose one congressional seat from its current total of 18, as a result of sluggish population growth detailed in federal census results.
According to the map, known as the “Carter Plan”, Pennsylvania will look to be separated into eight districts which lean toward Republican voters, six districts which lean toward Democrat voters and three highly-divided districts.
Currently, Pennsylvania has nine Republican congressional representatives and nine Democrat congressional representatives, but the new “Carter Plan” map will combine an area represented by incumbent Reps. Glenn Thompson and Fred Keller, and creates two districts in Metro Pittsburgh where no incumbents will be running for re-election.
Though the state Supreme Court modified the schedule pertaining to nomination petitions, it retained May 17 as the date of the primary election in Pennsylvania.
The Court’s 4-3 decision largely fell along political lines, with Democrat Justices Max Baer, Christine Donohue, David N. Wecht and Kevin M. Dougherty in favor of the “Carter Map” selection, with Democrat Justice Debra Todd and Republican Justices Sallie Updyke Mundy and P. Kevin Brobson dissenting from the choice.
On March 7, the U.S. Supreme Court refused to consider a Republican challenge to the map selection and referred the case to a three-judge federal district court instead.
Formal written opinions from the Supreme Court of Pennsylvania justices outlining their reasons for choosing to select or not select the “Carter Plan” map were released on Wednesday.
Justices’ Opinions Reflect Ideological Divides On Map Selection
“This Court acknowledges that there is no perfect redistricting plan. Each map involves trade-offs between the requisite traditional core redistricting criteria, as well as the subordinate historical redistricting considerations. The task of balancing these criteria and considerations is better suited to the Commonwealth’s political branches, rather than the judiciary,” Baer said in the Court’s majority opinion.
“Nevertheless, given our unwelcomed circumstance, we have endeavored to adopt a plan that, as phrased in League of Women Voters of Pennsylvania v. Commonwealth, is ‘superior or comparable’ to all of the plans submitted on the designated criteria.”
In a concurring opinion, Donohue said her choice of the “Carter Plan” map came down to a consideration of “partisan fairness.”
“The purpose of our Free and Equal Election Clause 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. The overreaching objective of this constitutional provision is to prevent dilution of a citizen’s vote,” Donohue said.
“Consequently, just as the political branches have an obligation to consider partisan fairness when enacting a redistricting plan, so too must this Court when put in the position of having to select one from the many that were submitted to us. Partisan fairness is not merely a subordinate factor to be considered.”
Dougherty also expressed support for the “Carter Plan” map, adding that the circumstances at hand led to the Court stepping in – and expressed “personal frustration” at the misperception that the Court “relishes the opportunity to play politics.”
“We decide this case not because we want to but because we have to as a result of the intransigent inability of the two other co-equal branches of government to fulfill their constitutional obligations and reach a compromise agreement. It is an unfortunate reality that when our Commonwealth’s legislative and executive branches succeed only in creating a void, we have no choice but to step once again into the breach,” Dougherty said.
Wecht, who also expressed support for the map which was chosen, stated that the process of redistricting is “more art than science”, and that the Court “should endeavor to resolve redistricting disputes by elevating as many ‘objective’ criteria above ‘subjective’ considerations as possible.
In dissenting from the majority, Todd explained she would have chosen the “Gressman Plan” for its contiguous view of districts, its least minimum population deviation, its compactness and its equality among districts.
“The ‘Gressman Plan’, uniquely, has the twin salutary benefits of maintaining perfect population equality among congressional districts, while preserving the most number of intact political subdivisions within those districts. This establishes, in my view, the plan’s superiority over all the others which our Court has considered. For these reasons, I would have selected the ‘Gressman Plan’. Accordingly, I respectfully dissent,” Todd said.
In her dissenting analysis, Mundy considered it “vital that the Court act in a politically neutral manner – and maintain the appearance of neutrality – to the greatest extent possible,” and used statistical metrics to support her choice of the “RESCH-1 Plan” map.
“Only RESCH-1 keeps Pittsburgh whole, whereas Draw-Lines splits it in two. If this factor were to be given weight as recommended by the Special Master, I would conclude that the RESCH-1 map should be chosen regardless of which data set is used,” Mundy said.
Brobson, who also dissented from the majority, found that the Court “invited, not discouraged…future involvement in the congressional redistricting process.”
“By considering numerical partisan metrics and ultimately adopting a reapportionment plan because it provides for ‘proportionality,’ avoids ‘anti-majoritarian’ results, and attempts to offset a ‘structural tilt’ in the political geography of Pennsylvania that favors Republican candidates, the majority has invited, not discouraged, this Court’s future involvement in the congressional redistricting process, whether in impasse litigation, such as this one; a partisan gerrymander challenge, such as the LWV litigation; or a ‘fairness’ challenge to a legislatively enacted reapportionment plan signed into law by the governor,” Brobson stated.
“While the ‘least-change’ approach – a neutral tool that in its purest form only makes minor revisions to existing legislative districts to account for population changes – purportedly used to create the Carter Plan may be imperfect, it would have been preferable, in my view, for the majority to have full-throatedly adopted it instead of using unquestionably partisan constructs to justify its selection of the Carter Plan. In my judgment, where the judiciary is forced to adopt a legislative reapportionment plan, the court should hew closely to non-partisan standards (e.g., compactness, contiguity, minimizing splits, etc.) or non-partisan methods (e.g., the ‘least-change’ approach), eschewing partisan considerations or partisan approaches.”
State Supreme Court Interceded In The Congressional Map Selection Process
Earlier proceedings in the matter had been pending before the Commonwealth Court of Pennsylvania, a Republican-majority body, where Judge Patricia McCullough indicated a ruling was imminent in early February.
But the Supreme Court of Pennsylvania’s action took the matter out of the lower court’s hands via its King’s Bench provision, and the high court held arguments on Feb. 18. McCullough served as special master for those proceedings.
Dougherty previously said the state Supreme Court needed to act fast in this matter, due to the executive and legislative branches of Pennsylvania government failing to agree on selecting a new map.
“Election redistricting is a notoriously political endeavor, which is why the judiciary usually plays no role in such matters unless called upon or forced to intercede. In those rare circumstances where the other branches of government fail to act, however, and the judiciary is left with the ‘unwelcome obligation,’ it makes little sense in my view to impose that duty on the shoulders of a single, randomly selected intermediate court judge,” Dougherty said.
This is not the first the state Supreme Court has addressed the controversial matter of constitutional redistricting. In 2018, it selected a new congressional map for Pennsylvania, after it decided that the former one was gerrymandered and therefore, unconstitutional.
Supreme Court of Pennsylvania case 7 MM 2022
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com