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Supreme Court Inaction Could Open New Front in Gerrymandering War

Feb. 6, 2018, 5:59 PM

State courts could be a new battleground for groups challenging voter maps after the U.S. Supreme Court opted against intervening in a partisan gerrymandering fight in Pennsylvania.

Justice Samuel A. Alito Jr. refused Feb. 5 to set aside a Pennsylvania Supreme Court order striking down the state’s Republican-drawn congressional voting districts. GOP lawmakers had argued the state court usurped the General Assembly’s redistricting power in its Jan. 22 order.

The legislature now has to develop new maps on an aggressive timetable ahead of midterm elections in November when Democrats nationally hope to flip 24 seats to wrest control of the U.S. House from Republicans.

The Supreme Court’s decision not to step in at this stage is a strong signal the high court won’t take up the case ultimately or act in other redistricting disputes coming from state courts.

There has been a flurry of federal court cases mainly over Republican-drawn maps in a number of states, including two the court is hearing from Maryland and Wisconsin.


[caption id="attachment_67106" align="alignright” width="368"][Image "" (src=]The current Pennsylvania map includes the sprawling 7th District, which critics say resembles the cartoon character Goofy kicking Donald Duck.[/caption]

Allowing the Pennsylvania order to stand may make state courts “an important new front in the campaign against partisan gerrymandering,” Michael Kimberly, of Mayer Brown LLP in Washington, told Bloomberg Law.

For example, a federal court in Pennsylvania Jan. 10 rejected a partisan gerrymandering challenge to the state’s congressional districts that were grounded in the federal Constitution.

Less than two weeks later, the Pennsylvania Supreme Court stuck down the very same map, this time finding that partisan considerations during the redistricting process violated the state’s Constitution.

The U.S. Supreme Court is considering for itself whether such partisan considerations can ever run afoul of the U.S. Constitution, or if it’s just a natural part of the redistricting process, in both the case out of Maryland and another out of Wisconsin.

If the high court ultimately determines that federal courts can’t police partisanship in redistricting, that battle could shift to state courts.


Decisions from state Supreme Courts based on state constitutions are typically insulated from U.S. Supreme Court review, Michael Moreland, a constitutional scholar at Villanova University’s Charles Widger School of Law in Villanova, Pa., told Bloomberg Law.

But the Pennsylvania GOP lawmakers sought to get into the U.S. Supreme Court using a robust reading of the Elections Clause as a federal hook, Moreland said.

“The times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof,” that clause says.

Republican lawmakers argued that the clause means that the legislature alone can make the rules for redistricting, election law professor Rebecca Green, of William & Mary Law School in Williamsburg, Va., told Bloomberg Law.

The lawmakers agree that the state court could have struck down the map if it had relied on a specific provision in the state Constitution or statutes, Green said.

But they argue that the Pennsylvania court’s reliance on broad constitutional provisions—like the state’s Speech Clause—to develop specific redistricting requirements—such as requiring districts to be composed of compact and contiguous territory—is akin to the court making up its own laws, Green said.

That’s something that the U.S. Constitution forbids, and that the U.S. Supreme Court should police, the lawmakers said.


Alito’s move here also suggests the high court is hesitant to depart from its recent precedent and “thereby trigger something akin to another Bush v. Gore explosion in which the U.S. Supreme Court appears to be intruding on state sovereignty,” constitutional law professor Laurence Tribe, of Harvard Law School, told Bloomberg Law.

Tribe represented then-Vice President Al Gore in 2000 when the Supreme Court, by a 5-4 vote, halted the recounting of presidential election ballots in Florida and handed the White House to Republican George W. Bush.

Tribe spoke with Bloomberg Law before Alito’s Feb. 5 decision.

Alito didn’t explain why he rejected that argument, stating only that the request to temporarily set aside the state court decision was denied.


The court’s 2015 decision in Ariz. State Legis. v. Ariz. Indep. Redistricting Comm’n, “provides strong authority for concluding that the Commonwealth of Pennsylvania, like the State of Arizona, enjoys broad latitude under the Elections Clause,” Harvard’s Tribe said.

There, state lawmakers similarly claimed that the Elections Clause invalidated a voter referendum requiring redistricting to be done via an independent commission rather than the legislature.

But a splintered Supreme Court said that Arizona could limit the legislature’s role so long as it was done “in accordance with the State’s prescriptions for lawmaking,” Mayer Brown’s Kimberly said, quoting the Arizona decision.

“It’s hard to see how that same reasoning wouldn’t also permit state courts to recognize state constitutional limits on partisan gerrymandering,” said Kimberly, who represents GOP voters in their Supreme Court challenge to Democratic-drawn districts in Maryland in Benisek v. Lamone.

The Supreme Court will hear that one in March.