Earlier this month, the Pennsylvania Supreme Court ruled that the state’s egregious gerrymander—which in 2012 gave Republicans 13 out of 18 of the state’s seats in the House of Representatives although Democrats won a majority of the statewide vote—was unconstitutional. After the (also heavily gerrymandered) Republican state legislature returned with a similarly illegal map, the court imposed one of its own based on careful analysis intended to make the drawing of districts more representative. The Republican response has been to threaten to attack the independence of the courts. This is the GOP in 2018 in a nutshell: a party utterly contemptuous of democratic norms and palpably terrified of an even remotely fair political fight.
It should be noted that although the new map has been frequently been described as “favoring” the Democrats, it still gives an advantage to Republicans, simply a much less egregious one. Republican attacks on the court as being out-of-control partisans are pure projection. The new map still leans Republican because almost any attempt to draw contiguous districts will disadvantage the Democrats, whose supporters are disproportionately clustered in the state’s two biggest cities. It’s pretty hard to sustain a charge of lawless partisanship given that the new map doesn’t even result in the Democratic Party having an unfair advantage.
Some conservatives have tried to couch their self-interested arguments as matters of procedural principle. For example, Jay Cost of The Weekly Standard tweeted that he believed that “[t]he PA GOP’s gerrymander was too aggressive, and undermined representative government in the state,” but that “[t]he PA Supreme Court’s ruling was a partisan power grab that undermines the legislature’s rightful role in the process.” Only the first argument, however, is correct.
Article I, Section 5 of the Pennsylvania constitution requires that “Elections shall be free and equal.” Interpreting the state constitution is the court’s job. At a minimum, it is reasonable to see a violation of free and equal elections when the legislature draws districts with both the intent and effect of massively overrepresenting one group of voters and massively underrepresenting another. The same is true of the court’s remedy: a map that, while slightly Republican-tilting, much more fairly represents the will of the state’s voters.
Arguments that the legislature has to be the final arbiter, even when it is acting in bad faith, are simply arguments that, even if illegal, there is no remedy for the gerrymandering. In fact this is the kind of case where judicial action is most appropriate. The courts are not imposing any substantive views on the public; they are merely upholding the democratic process, as required by the state constitution, by ensuring that election results more fairly reflect the voters’ will.
Arguments that redistricting is a “political question” unfit for the judiciary have been properly discredited for decades. In the infamous 1948 decision Colegrove v. Green, the U.S. Supreme Court held that it could not hold even the most egregiously malapportioned legislative maps unconstitutional, and that “[t]he remedy for unfairness in districting is to secure State legislatures that will apportion properly.”
But this argument is transparently specious. It basically says people who have been locked out of being fairly represented need to appeal to the state representatives they’ve been effectively prevented from having. As Justice Tom Clark wrote in his concurrence in Baker v. Carr, the 1962 case that consigned Colegrove to its appropriate place in the dustbin of history, “I would not consider intervention by this Court into so delicate a field if there were any other relief available to the people of Tennessee,” but “the majority of the people of Tennessee have no ‘practical opportunities for exerting their political weight at the polls’ to correct the existing ‘invidious discrimination.’”
Cost’s assertion that he disapproves of the gerrymander but that any remedies must come from the legislatures is pure crocodile tears. It is plain as day that this Pennsylvania legislature will not submit a map that doesn’t massively overrepresent Republicans, and the similarly gerrymandered state legislature leaves the state’s voters with no effective remedy. The choice is a court-imposed map, or patently undemocratic elections, and the former is by far the better alternative and does not in any way represent an inappropriate action by the courts.
Republicans are responding with terror to an election that might have a playing field less titled in their favor. For the second time they’re asking the Supreme Court to intervene, although this involves a state court interpreting state law. The Court should once again reject this desperate challenge.
In addition, with the encouragement of Republican Senator Pat Toomey, some Republicans are threatening to impeach the judges for doing their jobs. Precisely because of gerrymandering at the state level, as Ed Kilgore of New York points out, “the GOP has the necessary margins in both legislative chambers” to impeach the judges if they choose to. This would be a major threat to judicial independence—but given the contempt Pennsylvania’s Republicans have shown for democratic norms, it wouldn’t be shocking, either.
Republican objections to the court’s map aren’t procedural objections. They’re based on the fact that a fair Pennsylvania map might threaten the party’s hammerlock on the House of Representatives in the fall. Given the unpopularity of both President Trump and the party’s agenda, Republicans are scared of a fight that isn’t totally unfair. And they should be.