When the Supreme Court takes up what’s considered to be the most important gerrymandering case of our time, the justices will consider what a handful of Pennsylvania legislators say about the practice.
More than 60 Democratic and Republican state legislators submitted an amicus (or friend of the court) brief in Gill v. Whitford, which is set to be heard by the high court Oct. 3. The state of Wisconsin is appealing a federal court’s ruling that the state’s assembly map is an “unconstitutional partisan gerrymander” — meaning designed for the benefit of one political party — and must be redrawn.
The brief was filed in support of the Wisconsin voters who brought the case and co-signed by four Pa. Democrats and two state Republicans:
- Rep. Mary Jo Daley, Democrat-District 148
- Rep. Pamela A. DeLissio, Democrat-District 194
- Sen. Daylin Leach, Democrat-District 17
- Former Sen. Franklin L. Kury, Democrat
- Former Rep. H. Sheldon Parker, Jr., Republican
- Former Rep. David J. Steil, Republican
“The single-minded quest to obtain and retain political power at the expense of the will of the people, to quote Lord Acton’s famous dictum, ‘tends to corrupt,'” the brief, compiled by law firm Holwell Shuster & Goldberg LLP, states. “Few tools for political entrenchment have corrupted our democracy more than modern-day gerrymanders designed to entrench legislators along party lines. This brief describes some of these effects, often in Amici’s own words.”
The three current representatives who signed on to the brief represent areas in or near Philadelphia. Both DeLissio and Leach were interviewed for and quoted in the brief after being approached to participate by the firm.
Pam DeLissio, a State Representative from Pennsylvania, notes that her State’s “whole budget process often does not include Democrats at the negotiation table.” On a recent and controversial budget code bill, those in control of the process prevented members of the minority party from even reviewing the legislation until minutes before the vote. According to Rep. DeLissio, “when this legislation reached the floor, it passed with the bare majority of votes. There was no hearing on the bill. There was no conversation about this issue. This is what gerrymandering has done.”
Leach, who is undoubtedly the most colorful member of the Senate, provides some of the most colorful quotes in the brief:
This lack of cooperation breeds distrust, dysfunction, and hostility. At best, Amicus Leach says, members of opposing parties ignore each other like boys and girls at “an eighth-grade dance.” At worst, they war like the Montagues and Capulets.
“Cooperation is heresy,” Sen. Leach says. He describes multiple meetings with Republicans who say they cannot help him with legislation—even legislation they support—because, they say, “I’ll get a primary, and my district is drawn in such a way that I couldn’t survive that.”
Or Pennsylvania, where, in the words of Amicus Sen. Daylin Leach, “the majority of incumbents could not lose now if they were convicted of treason.”
DeLissio told The Incline she was approached because of her involvement in efforts to reform Pa.’s redistricting processes and felt “fortunate” to be able to add her voice to the brief. A spokesman for Leach, who’s running for Congress in one of Pennsylvania’s most gerrymandered districts, points out that the senator “introduced a bill to eliminate gerrymandering in seven separate legislative sessions,” including during the current one.
What happens for Pa.?
It’s hard to predict which way Gill v. Whitford will go.
The swing vote is again expected to be Justice Anthony Kennedy, who cast the deciding vote in Vieth v. Jubelirer. That case involved three Pennsylvania Democrats who sued the state after the Republican-controlled legislature redrew congressional districts after the 2000 census.
While four justices opined that there is no judicial remedy to partisan gerrymandering, as there is no one test to determine it has taken place, Kennedy left the door open to wait for a case that could demonstrate a clear measure of partisan redistricting. The attorneys arguing against Wisconsin’s assembly map believe they’ve found that in the efficiency gap. Justice Ruth Bader Ginsburg called Gill “perhaps the most important” case the court is considering this term.
Wilson Huhn, a visiting professor at the Duquesne University School of Law, told The Incline a ruling against the state of Wisconsin could have a “tremendous effect” on Pennsylvania.
“The politicians are choosing the voters, instead of the voters choosing the politicians,” he said of the practice. “It’s ruining our democracy.”
It’s tough to say exactly how the case’s outcome will affect Pennsylvania. Paul Smith, an attorney for the voters in the case, told Quartz, “It’s hard to know how many maps will be subject to a successful challenge if we win. That depends in part on how the court articulates the rule.”
But proponents of redistricting reform in Pennsylvania aren’t putting all of their eggs in the Gill basket.
In June, a group led by the League of Women Voters sued the state over the Republican-drawn congressional map 1 , arguing that it was purposely designed to benefit Republicans.
Even if the Supreme Court case goes in Wisconsin’s favor, that wouldn’t necessarily have an effect on the lawsuit currently in Commonwealth Court. As Huhn pointed out, Gill is concerned with the U.S. Constitution while the Pa. suit focuses on the state constitution.
Despite that, the Pennsylvania General Assembly, House Speaker Mike Turzai and Sen. Joseph B. Scarnati are seeking to delay the proceedings until Gill is resolved.
The plaintiffs in the Pa. case, represented by the Philly-based Public Law Interest Center and Arnold & Porter Kaye Scholer LLP, argued Huhn’s position in their response to that effort to delay. From a statement:
The Gill case, which may not be decided until spring 2018, involves only issues under the federal Constitution. The Pennsylvania gerrymandering lawsuit challenges the state’s U.S. Congressional map under the Pennsylvania Constitution which has different and broader protections than the federal constitution.
“Voters in Pennsylvania have a compelling interest in resolving this case as quickly as possible. With this request for a delay, the General Assembly stands in their way,” David Gersch, senior counsel for Arnold & Porter Kaye Scholer LLP, said in a statement. “Petitioners in Pennsylvania have different legal claims, theories, and evidentiary support than are presented in the Gill case. Pennsylvania’s redistricting case is not dependent in any way on the resolution of Gill and should go forward regardless of how Gill is decided.”
Both sides will argue their positions in early October.
There are also redistricting bills pending in the state House and Senate, including two backed by the grassroots group Fair Districts Pa.: Senate Bill 22 and House Bill 722. Both bills had bipartisan introducers and would create independent commissions (see: no politicians) to draw congressional and legislative districts. They both also require an amendment to Pennsylvania’s constitution, which means the bills must be passed in two consecutive sessions then ratified by the voters.
Mike Folmer, the ranking Republican on the Senate state government committee, said he won’t bring Bill 22 up for a hearing until the League of Women Voters lawsuit is resolved. Daryl Metcalfe, his counterpart in the House, hasn’t indicated whether or not he’ll bring the bill up, but his track record leans heavily toward no.
DeLissio said her constituents ask her how they can get involved in the fight for redistricting reform and are surprised at how the legislative process works once they “start to get into the weeds.”
As DeLissio explained, the powers that be in Harrisburg can easily let legislation through that they support — and if they want it bottled up, they can do that, too.
“They’re learning a lot about the process,” she said.