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Supreme Court moves quickly on Congressional Redistricting. So, what happens when the Legislature and Governor almost certainly do not meet the deadline?

Posted By Cliff Tuttle | January 22, 2018

No. 1,402

Image: fairvote.org

The Supreme Court didn’t waste any time finding the current Congressional redistricting plan unconstitutional and ordering  redistricting in the case of League of Women Voters v. Commonwealth, No. 155 MM 2017. See our December 30 and January 16 posts on the case. Considering the burden it places upon the conduct of the 2018 primary election, has the Court traveled too far and too fast?

In addition to reviewing the findings and conclusions of law submitted by Commonwealth Court Judge Brobson, it heard oral arguments by parties, intervenors and amici curiae last Wednesday, January 17, 2018. Then, with incredible celerity, considering the complexity and importance of the issues presented, the Court issued a per curium order, followed by one concurring and dissenting statement and two dissenting statements. Links to these documents can be found at the bottom of this post. Opinions, explaining why the Court says the redistricting plan is unconstitutional (or not), will come later.

The majority struck down the Congressional Redistricting Act of 2011, relying upon the Pennsylvania Constitution alone, enjoining the use of the existing districts in the upcoming primary election. Only the special election to fill the remaining term of Tim Murphy in the 18th Congressional District is exempt.

“First, the Court finds 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. Accordingly, its further use in elections for Pennsylvania seats in the United States House of Representatives, commencing with the upcoming May 15, 2018 primary, is hereby enjoined.”

It seems pretty clear that our Supreme Court does not wish to permit the losing party, namely the Republicans, to  scuttle the high speed implementation of this Court’s order by appealing to the United States Supreme Court.

Nevertheless, the Petition for Certiorari  is probably in preparation at this moment.  So we’ll have to see how it fares.  While the Pennsylvania Supreme Court has final jurisdiction on questions arising under the State Constitution, it isn’t inconceivable that US Supreme Court will pick it up because, by its nature, it involves federal questions currently before it.

The General Assembly is granted the right to submit a plan which satisfies the Constitutional requirements, but they must put it together by February 9 and get the approval of the Governor by February 15.

If not physically impossible, such a schedule  is surely politically impossible. Throwing two incumbents together or creating a district with no incumbents is  unacceptable to politicians. The criteria set forth by the Court, set forth below, makes that very hard to do.  Don’t count on a plan being submitted at all and on the long shot odds that this actually happens, don’t count on the Supreme Court to find the plan acceptable.

So, when the legislative plan is either not submitted or rejected by the court, the parties, including intervenors, will have a crack at submitting plan on February 15. In other words, they should have it in the ready for submission on or before the February 15 deadline.

Although there are no opinions yet published to explain the Court’s reasoning,  criteria are announced and fulfilling them will require immense amount of work, even in the age of computers.

[In order] “to comply with this Order, any congressional districting plan shall consist of: congressional districts composed of compact and contiguous territory; as nearly equal in population as practicable; and which do not divide any county, city, incorporated town, borough, township, or ward, except where necessary to ensure equality of population.”

The final redistricting plan, as fashioned by the Court, is to be available by February 19 and the Executive Branch Respondents are expected to take measures, including adjusting the election calendar if necessary, to implement it for the May 15 primary.

I’ll bet you a month of lunches that this ambitious plan will not be carried out!

Click here for a copy of the Order.

Click here for Justice Baer’s concurring and dissenting statement.

Click here for Chief Justice Saylor’s dissenting statement.

Click here for Justice Mundy’s dissenting statement.



CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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