Pennsylvania Republicans Plan Another Lawsuit To Fight Fix To Gerrymandering

Pennsylvania Republicans are likely to file a federal lawsuit challenging a congressional map the state Supreme Court is set to propose next week.

The move signals Republicans ’ determination to continue fighting a decision from the state Supreme Court that struck down the congressional map currently in place. The court said the map was designed to benefit Republicans so severely that it violated the state’s constitution.

The court-drawn map was a last resort after the state Supreme Court ruled Jan. 22 that the one in place was unconstitutional. The court gave the legislature and governor about three weeks to agree on a map , and said it would draw its own if they did not. Republican leaders put forward a proposal that the legislature didn’t vote on and that Gov. Tom Wolf (D) rejected . Wolf said the map still amounted to an unfair partisan gerrymander, a claim backed up by several statistical analyses.

Republicans maintain that the U.S. Constitution only grants the legislature, not the state Supreme Court, the ability to draw a congressional map. But Justice Samuel Alito rejected that argument when he declined an appeal from GOP lawmakers earlier this month. The Supreme Court recognized in 2015 that legislatures did not have the exclusive authority to draw congressional districts.

Legal experts say Alito’s decision sent a strong signal that the Republican claim lacked merit. The plaintiffs in the case also argued that lawmakers could not appeal the decision to the U.S. Supreme Court because the challenge to the congressional map only involved a controversy under the Pennsylvania state constitution, not the federal one.

Drew Crompton, a top aide to Senate President Pro Tempore Joseph Scarnati (R), said he believed federal courts might be willing to take another look after the state Supreme Court proposed its map and that it’s “certainly probable” the GOP will take action in federal court when it does. 

“No one can read tea leaves of a one-line Alito sentence,” Crompton said Friday. “I think historically the tea leaves you can read by the U.S. Supreme Court is they don’t like to exercise their jurisdiction unless everything else has been tried and answered before you come to the U.S. Supreme Court.”

Once the state Supreme Court proposed its map, Crompton said, the parties would have gone through every step outlined by the court’s order. He also said the GOP legal team is figuring out who it would name as a defendant in a new lawsuit, because it could not sue the state Supreme Court. 

After Alito rejected the GOP claims, Richard Hasen, an election law expert and professor at the University of California, Irvine, said there were several legal doctrines that “pretty much preclude a collateral attack in federal court on the state court’s order.” One example is the Rooker-Feldman doctrine , which says the U.S. Supreme Court is the only federal court that can review a state court decision.

Daniel Jacobson, a lawyer at Arnold & Porter who helped represent the plaintiffs in the case, accused Republicans of wasting taxpayer money.

“Speaker [Mike] Turzai and Senator Scarnati seem intent on making more frivolous arguments that the U.S. Supreme Court has already rejected,” he said in a statement. “They are wasting taxpayer money and the resources of the courts, and we will respond appropriately to any such lawsuit.”

While Republicans argue the state Supreme Court is usurping its right to draw a congressional map, Democrats say lawmakers had plenty of time to act and just failed to do so.

The court said in January that a new congressional map would be “available” on Feb. 19 and hired Stanford professor Nathaniel Persily to help it draw new lines. Republicans, Wolf and the plaintiffs in the case have all submitted proposals to the court to consider as it comes up with a new map.