In 2018, the Pennsylvania Supreme Court invalidated the state legislature’s congressional district map, finding “as a matter of law that the Congressional Redistricting Act of 2011 clearly, plainly, and palpably violates the Constitution of the Commonwealth of Pennsylvania, and on that sole basis, we hereby strike it as unconstitutional.” The Court gave the legislature, controlled by Republicans, and the governor, a Democrat, until February 15 to agree on a new voting map. When they failed to agree, the court implemented its own “plan based on the evidentiary record developed in the Commonwealth Court.” League of Women Voters of Pennsylvania v. Commonwealth, 175 A.3d 282, 284 (Pa. 2018), cert. denied sub nom. Turzai v. Brandt, No. 17-1700, 2018 WL 5314946 (U.S. Oct. 29, 2018). On October 29, the U.S. Supreme Court denied certiorari in the case, thus leaving the Pennsylvania court’s plan in place for next Tuesday’s general election.
According to Bloomberg Law, “Democrats are likely to win at least nine seats and could win several more than that” under the new voting map.
Plaintiffs in other states have brought claims of partisan gerrymandering under the U.S. Constitution in recent years. A North Carolina district court held in August that the state’s 2016 Congressional Redistricting Plan was unconstitutional under the First and Fourteenth Amendments and enjoined the state from using the 2016 plan, but only for elections after November 6. Common Cause v. Rucho, 318 F. Supp. 777 (M.D.N.C. 2018). The court’s decision has been stayed pending appeal to the Supreme Court (docketed October 3).
Challenges to legislative districting maps have also been filed in Wisconsin (Gill v. Whitford, 138 S. Ct. 1916 (2018)); Maryland (Benisek v. Lamone, 138 S. Ct. 1942 (2018)); North Carolina (Harris v. Cooper, 138 S. Ct. 2711 (2018), aff’g Harris v. McCrory, No. 1:13-cv-949, 2016 WL 3129213 (M.D.N.C. June 2, 2016)); Michigan (League of Women Voters of Michigan v. Johnson, 902 F.3d 572 (6th Cir. 2018)); and Ohio (Ohio A. Philip Randolph Inst. v. Smith, No. 1:18cv357, 2018 WL 3872330 (S.D. Ohio Aug. 15, 2018)). Each of these cases, except the Maryland case, involved challenges by Democrats to Republican-drawn legislative maps.
The Supreme Court has thus far avoided revisiting the merits of claims based on partisan gerrymandering since Vieth v. Jubelirer, which found that partisan gerrymandering claims were nonjusticiable, because there was “no discernible and manageable standard” for deciding them on the merits. 541 U.S. 267, 305 (2004) (Scalia, J.). Each of the cases the Court has reviewed in recent years have been decided on procedural grounds. It remains to be seen whether the Rucho case will provide better guidance, but any result wil be well after the 2018 elections.
Greg Stohr, Pennsylvania Republicans Rejected by Supreme Court on Voting Map, U.S. Law Week, Oct. 29, 2018, https://www.bloomberglaw.com.
Michael Li et al., The State of Redistricting Litigation, Brennan Center for Justice, Oct. 17, 2018, http://www.brennancenter.org/blog/state-redistricting-litigation.
Jack Fitzpatrick, Between the Lines: Four States Take Aim at Gerrymandering, U.S. Law Week, Nov. 1, 2018, https://www.bloomberglaw.com.