Extreme Gerrymandering in Pennsylvania: a Constitutional Crisis

By Jenna Lewinstein (SC ’19)

Lost among a myriad of stories revolving around the executive office and Congress, Pennsylvania is in the midst of a constitutional crisis that has major implications on all levels of government. Gerrymandering, the act of manipulating congressional district maps to a partisan advantage through means like “packing and cracking” voters of particular demographics, is an epidemic across the country that prevents our institutions from being as representative as possible. While Pennsylvania is a state with slightly more Democrats than Republicans, this balance is not reflected in the state legislature and Congressional representation. This is partially due to the fact that many of the state’s Democrats live in Philadelphia, but despite their majority, Pennsylvanian Democrats have been outnumbered and silenced for almost a decade. Noting this injustice, the League of Women voters opened a lawsuit against the state for their biased districting practices, and now the Pennsylvanian Republicans are scrambling to act within the law while maintaining their hold of the House.

After the 2010 elections, Republicans gained control of the Pennsylvania state legislature. Because of this, the Republicans of the State Legislature won the right to redraw the district map, an act which is done every 10 years after the US census. In doing so, they divided Democrats into their constituencies using gerrymandering. The effect was detrimental to Democrats in Pennsylvania. During the 2012 election, statewide partisanship stood at 51% Democrat and 49% Republican, yet of the 18 congressional seats, Democrats won only 5. Though this issue of representation became apparent, it was not institutionally addressed until 2017, when the League of Women voters sued the  state to have the map invalidated and deemed unconstitutional. The League claimed it violated the Pennsylvania Constitution Free Expression and Association Clauses, as well as its Equal Protection guarantees and the Free and Equal Clause. In a 5-2 decision, the Pennsylvania Supreme Court found the Republican drawn districts to have an unfair partisan bias. To retaliate, the Pennsylvania Republicans attempted to quickly appeal to the Supreme Court, but the SCOTUS denied their emergency application. By the time the SCOTUS issued the decision, the current Republicans in Pennsylvania had four days to redraw their own map before they ceded the opportunity to the courts.

On February 9 2018, the Republican State Legislature introduced a new map, which remains as gerrymandered as the prior. Across all 18 districts, the average shift is a 4% vote margin between the old and new districts, meaning that the “new” constituents of each district have hardly moved on an ideological spectrum, due to the fact that the districts themselves have only been very slightly shifted. The map is almost identical to the old one- likely resulting in the same seat disparity that has stifled Democratic initiatives and representation since 2011. In the event that this map is rejected by Democratic Pennsylvania Governor Tom Wolf, Republican legislators have threatened to impeach the five state justices that sided with the plaintiffs at the League of Women voters that found the districting map unconstitutional. The grounds are unclear, but State Rep. Cris Dush (R) has said the action of the State Supreme Court, “ blatantly and clearly contradicts the plain language of the Pennsylvania Constitution…” and “engaged in misbehavior in office.”

While this would be an extreme measure, it is legal, feasible, and has some similar precedents. First, it would take a majority in the house and two-thirds of the senate to impeach judicial officers, which the Republicans already have. there have been numerous instances in different states where legislation has been crafted  to take power away from the office of the state executive branch. In 2016 in North Carolina, the G.O.P. ended gubernatorial control of election boards, required State Senate confirmation of cabinet members, cut the number of bureaucratic employees, and enacted measures referred informally as the “monster” law that necessitated voters to present a particular type of photo ID (limitations that election board data indicated excessively affects minority voters). While not identical situations, these instances signify existing loopholes the G.O.P. has utilized to curb the power of Democrats in office, and the success of  Democratic campaigns as well.
The new map was rejected by the Governor on February 13, bringing the courts closer to redistricting the state themself, a move that would likely make the Republicans will be unable to hold the House. However, it would not be a stretch if legislators in the G.O.P. move to impeach justices to restore the constitutionality of their redistricting practices. This will be a true test of the will of Pennsylvania Republicans, as they try to exhaust every possible option to remain in the majority and stop the most pivotal act of democracy: free and fair elections. Finally, this predicament exhibits one of the best reasons to vote in local and state elections. The party who wins the most seats in the state legislature also wins the right to draw the congressional district map, and the map determines who stays in power, and who stays silent.

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