Hello, this is Summary Judgment, a podcast offering easy-to-understand explanations of major court cases as they are decided.  I’m Alan Mygatt-Tauber.

This week we’re discussing League of Women Voters of Pennsylvania et al v. Commonwealth of Pennsylvania, et al., the Pennsylvania Supreme Court’s decision regarding partisan gerrymandering.

Several groups and individuals challenged the 2011 maps drawn for the Pennsylvania Congressional Delegation as violating several provisions of the Pennsylvania Constitution.  Unlike many gerrymandering cases, the claims here were that the maps were impermissibly drawn on a partisan basis, a claim the U.S. Supreme Court is currently deciding.

The Pennsylvania Supreme Court, in a per curium opinion, ruled that the Congressional Redistricting Act of 2011 plainly and palpably violates the Constitution of the Commonwealth of Pennsylvania.  It therefore enjoined the use of the map, including in the upcoming May 15, 2018 primary.

It ordered the General Assembly to submit a congressional districting plan that satisfies the requirements of the Pennsylvania Constitution to the Governor no later than February 9, 2018.  It further ordered the Governor to submit the plan to the Court no later than February 15, 2018.  In the event either the General Assembly or the Governor choose not to propose or approve a new plan, the Court stated it would adopt a plan based on the evidentiary record developed below.  It therefor invited the parties and intervenors to submit proposed remedial redistricting plans to the Court before February 15.

The Court specifically ordered any proposed plan to be 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.

It then ordered the Executive Branch respondents to take all measures, including adjusting the election schedule if necessary, to ensure that the May 15 primary take place as scheduled under the remedial plan approved or issued by the Court.

Finally, it noted that the March 13, 2018 special election for the 18th Congressional District to fill a current vacancy will proceed under the current, though invalid, maps.

Three members of the Court filed separate opinions.  Justice Baer filed a statement concurring in part and dissenting in part.  He joined the opinion in so far as it found the current maps under the 2011 act to be unconstitutional and concurred in the invitation to the legislature and governor to craft constitutional maps, since redistricting is a legislative function.

His issue was with the directive that the new maps be in place for the May 15 primary.  He notes the counterintuitive nature of finding the maps unconstitutional, but using them for the primary in any event.  But he noted that other forces were at play.  He relied on an earlier Pennsylvania redistricting case which stated that courts should determine whether the imminence of the elections requires the utilization of an invalid plan or whether a constitutional map can practicably be effectuated in time for the pending election.

Here, Justice Baer believes the dangers of implementing the new map for the May primary risks serious disruption of an orderly election process.  As he noted, prospective candidates, both incumbents and challengers, have been strategizing for months based on the current maps.  Indeed, he notes, changes to those maps could lead to candidates, again both incumbents and challengers, to no longer be living in the districts where they are running, and have been laying groundwork for a year or more.  It could also cause confusion for voters, who thought they knew who their congressperson was and now finds out that has changed.

The 18th Congressional District caused him particular concern.  Based on the Court’s order, a Congressperson will be elected to serve an 11 month term, while nomination petitions will be circulating for the newly drawn district and the eventual winner of the special election may not be included.

He finds the lack of time to be a problem as well.  He opposes the idea of moving the primary, as it could have unknown consequences.  He therefore finds it more prudent to apply the ruling to the 2020 election cycle, where there will be plenty of time to create, and potentially litigate, any new maps.

Chief Justice Saylor filed a dissent, which Justice Mundy joined.  Chief Justice Saylor believed it would have been appropriate to stay this case until the U.S. Supreme Court issues its decision in Gill v. Whitford, the partisan gerrymandering case it is scheduled to decide by June.  He noted that the Supreme Court has stayed a series of recent federal court decisions in partisan gerrymandering cases pending the outcome of Gill.  Because of the timing of the impending election cycle, he believes it is best to wait.

He also notes that the crafting of congressional districts is a quintessential political endeavor, assigned to state legislatures by the United States Constitution.  He therefore does not believe it is appropriate for the Courts to draw the districts.

He concludes by acknowledging the substantial concerns raised by the trial court’s recommended findings of fact.  He notes that his position is only that the Court should not upset the status quo, in such a tight timeframe, and that it should not do so without clarifying the constitutional standards by which districting is now adjudged in Pennsylvania.

Finally, Justice Mundy dissented on her own behalf.  She takes issue with the vagueness of the Court’s per curium order.  The Court, she notes, failed to indicate which provision or provisions of the Pennsylvania Constitution is violated by the 2011 maps.  She argues this vagueness is a problem, because the parties raise claims under the Speech, the Free Association, the Elections, and the Equal Protection Clauses of the Pennsylvania Constitution, and each of them requires a different mode of analysis.

She notes that the court’s order fails to give essential guidance to the political branches or the Court itself, on how to create a constitutional, non-gerrymandered map.

Like her colleagues, she is also troubled by the timeframes involved, on the eve of the primaries.  Finally, she objects to the idea that, failing action by the political branches, the Court can craft maps of its own, since the U.S. Constitution specifically commits the power to draw maps to the Legislature.  For those reasons, she believes the Court’s approach is imprudent and she would not participate in it.

This is a hard case to judge, because the short, per curium opinion, does not provide its reasoning, as Justice Mundy pointed out.  However, I cannot help but note that, with the exception of Judge Mundy, none of the other dissenters take issue with the ultimate decision striking down the maps.  While Chief Justice Saylor would have waited, he did not dispute the underlying holding of the per curium opinion.  And while Justice Mundy took issue with the vagueness of the per curium, she did not explain why any of the petitioners’ theories, regardless of which provision of the Pennsylvania Constitution relied upon, were incorrect.

In the end, I am most persuaded by Justice Baer’s opinion.  Given the timing of the Pennsylvania primary in May, it is too soon to require application of new maps, and would likely cause confusion among those already in the running.  Given the requirements for compact districts, it is highly likely that several candidates in current, gerrymandered districts would find themselves no longer eligible for the seats for which they are running.  With that in mind, it seems the only equitable thing is to continue using the current maps and requiring new maps for the 2020 elections.

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