December 8, 2017

This segment of our blog first reviews the rulings Judge Brobson has made in the Commonwealth Court remand of LWV v. PA concerning discovery, then summarizes the expert reports the opposing sides have submitted.  Second, we summarize the status of Agre v. Wolf, in which trial began on Monday in the Federal District Court for the Eastern District of Pennsylvania.

Commonwealth Court Remand Update

Legislative Privilege Upheld, Discovery Strictly Limited

On November 16, 2017, Petitioners filed an emergency application to compel discovery responses and depositions from the General Assembly, arguing the General Assembly, Speaker Turzai and Senator Scarnati had waived all privilege arguments because they failed to file their briefs on November 15 as the court had ordered.  The application also requested that the court compel the General Assembly to sit for dispositions noticed in September and allow Petitioners to serve third-party subpoenas.

The General Assembly, Speaker Turzai and Senator Scarnati filed their privilege briefs on November 17, 2017, raising a multitude of privilege assertions.

On November 17, Judge Brobson denied Petitioner’s Emergency Application without opinion.

Petitioners filed their brief in opposition to the Legislative Respondents’ privilege assertions on November 20.

On November 22, 2017, Judge Brobson ruled that the Speech and Debate Clause of the Pennsylvania Constitution grants absolute legislative immunity to the General Assembly regarding its redistricting activities, and thus upheld the General Assembly objections to various discovery requests and quashed Petitioners’ subpoenas.  In particular, Judge Brobson quashed subpoenas issued to legislators, aides, current and former employees, consultants, experts and agents.  Judge Brobson struck certain categories of information related to communications of legislators requested in subpoenas to third parties including the RNC, National Republican Congressional Committee, Republican State Leadership Committee, and the State Government Leadership Foundation.  To the extent Judge Brobson allowed these subpoenas to stand, he instructed that they should be interpreted as excluding documents that reflect the intentions, motivations, and activities of state legislators and their staff regarding the 2011 redistricting plan.  Judge Brobson did not quash the subpoena issued to former Governor Corbett, but similarly limited its scope.  Finally, regarding Petitioners’ First Set of Requests for Production and First Set of Interrogatories, Judge Brobson refused to compel responses, again reasoning that all of the requests sought information that the Speech and Debate Clause protects from disclosure.

Summary of Expert Reports Submitted

On November 27, 2017, Petitioners submitted the expert reports of:  Jowei Chen, Ph.D., Christopher Warshaw, Ph.D., Wesley Pegden, Ph.D., and John J. Kennedy, Ph.D.  These experts each have extensive experience in statistics, mathematics, and/or political science.

Dr. Chen is a statistician who previously provided an expert report or testified in 10 redistricting cases.  His report concludes (based on various computer simulation programming techniques that produce numerous non-partisan districting plans optimized to traditional districting goals such as equalizing population, maximizing geographic compactness, and preserving county, and municipal boundaries) that Pennsylvania’s 2011 redistricting plan:

  • Divided far more counties than was reasonably necessary;
  • Produced districts significantly more geographically non-compact than necessary;
  • Created 13 Republican districts out of 18 total districts, while traditional districting would have produced just 7-10 Republican districts; and
  • Represents an extreme outlier as compared to 500 simulation results, showing partisan considerations predominated over other non-partisan criteria.

Dr. Chen then analyzed whether two alternate motivations, other than partisan gerrymandering, would explain the 2011 plan – protection of incumbents and racial composition.  He found neither of these alternatives explain the 2011 plan.

Dr. Warshaw is a political scientist and lawyer. His report concludes:

  • The 2011 redisctricting plan disadvantages Democrats compared to Republicans in ways that are historically extreme;
  • The pro-Republican advantage in congressional elections in Pennsylvania has important representational consequences for voters; and
  • The pro-Republican bias in Pennsylvania elections contributes to a lack of trust in Congress.

Dr. Pegden is a statistician that designed a new technique to demonstrate gerrymandering (by testing whether the partisan bias in the current districting is fragile, in the sense that it evaporates when many random small changes are made to the districting) prior to being asked to testify in this case.  His report concludes that Pennsylvania’s Congressional districting is a gross outlier with respect to partisan bias in a way that is mathematically impossible to be caused by political geography and traditional districting criteria.

Dr. Kennedy is a political scientist.  His report takes a historical approach, comparing the 2011 districting plan to prior plans, and concludes:

  • While in the 23 election cycles prior to the 2011 plan the margin between Democratic and Republican seats was +1 in either direction, in the 3 election cycles since the 2011 plan, the margin has been +8 for Republicans in every cycle;
  • The 2011 plan splits more counties and municipalities into separate congressional districts than any prior map;
  • The 2011 plan splits considerably more census blocks – the smallest geographic unit for which the Census Bureau collects data – into separate congressional districts than any previous map, which shows the disruption to some communities by carving up neighborhoods into different congressional districts;
  • The 2011 plan cracks and packs Democratic voters in an egregious manner; and
  • The 2011 plan demonstrates hijacking – combining two districts controlled by the opposite party, forcing their incumbents to run against one another in a primary election and thereby ensuring that one will be eliminated.

Respondents submitted their expert reports on December 4, 2017, including:  Wendy K. Tam Cho, Ph.D., Nolan McCarty, Ph.D., and James G. Gimpel, Ph.D.

Dr. Cho is a political scientist and statistician who has done extensive research on gerrymandering.  Her report rebuts the reports of Dr. Chen and Dr. Pegden.  As to Dr. Pegden, Dr. Cho criticizes his conclusion that the 2011 Plan is an extreme outlier as not credible because he has not examined the set of all possible redistricting plans that could occur and that his subset of redistricting plans does not include all of the legal requirements and traditional redistricting principles.  As to Dr. Chen, Dr. Cho criticizes his conclusions because they are based on an algorithm that has not yet been peer reviewed that she has not had sufficient time to fully review it.  Dr. Cho also criticizes the algorithm as unreliable because when she tested it on a smaller data set it was unable to produce random maps.  Dr. Cho also criticizes Dr. Chen’s application of his algorithm and the criteria he chose to create his comparison set of maps.

Dr. McCarty is a political scientist.  His report rebuts the reports of Dr. Chen and Dr. Warshaw.   As to Dr. Chen, Dr. McCarty concludes his report is not persuasive because:

  • Pegden’s report contradicts his analysis; and
  • His measure of partisanship of the 2011 and simulated plans is flawed because it is only a rough and noisy estimate of how elections will turn out. McCarty analyzes Dr. Chen’s data and challenges his conclusion that the 2011 plan was an outlier.

As to Dr. Warshaw, Dr. McCarty concludes his analysis ignores 3 factors that reduce the negative effects of the 2011 plan on voters – the representation benefits to Democrats from living in a strongly Democratic district, the effects of Democratic voters on the behavior of Republican representatives in competitive districts, and the opportunities for Democrats to win competitive congressional districts.  Dr. McCarty also questions Dr. Warshaw’s use of the efficiency gap and argues that it is inflated by the historical underperformance of Pennsylvania Democrats in congressional elections.

Dr. Gimpel is a political scientist.  His report addresses redistricting goals and concludes that because redistricting is intended to satisfy many goals that are in conflict, redistricting plans are always imperfect.

Agre v. Wolf

Pre-Trial Motion

In this proceeding, Plaintiff’s U.S. Constitution Elections Clause Count is the only claim remaining.  Legislative Defendants (Senator Scarnati and Representative Turzai) moved for summary judgment on this claim on December 1, 2017 on four bases.  First, they argue Plaintiffs lack standing because: (1) they have not shown particularized harm, instead showing only general grievances that all citizen of Pennsylvania would share; and (2) only state entities or state officials have standing to bring challenges under the Elections Clause.

Second, they argue that Plaintiffs are not alleging violation of a fundamental right under the U.S. Constitution, such as the right to vote, and are instead arguing their right to fair elections has been violated.  They argue that this right does not stem from the Federal Constitution, instead stemming from the state’s inherent powers and therefore any violation of such right, if it exists, is not a violation of a federal right and therefore the case should be dismissed.  In the alternative, Legislative Defendants argue that if a federal right is at issue, only rational basis scrutiny applies not strict scrutiny.  They allege that rational basis scrutiny only requires that the state show a legitimate interest in its design of voting districts, such as equality of population, pairing the mathematically least number of incumbents considering the loss of a seat, reducing the number of county, city, and municipal splits over the prior plan, or maintaining a majority minority district in the Philadelphia area.  Claiming the 2011 plan undisputedly fulfills each of these legitimate interests, Legislative Defendants argue the case should be dismissed.

Third, they argue that as a matter of law there is no requirement of neutrality contained within the Elections Clause, thus political gerrymandering does not violate the Elections Clause and the case should be dismissed.

Fourth, they argue that because the Supreme Court has consistently held that some level of gerrymandering is acceptable, to the extent Plaintiff’s claim no partisan intent is acceptable at all in design of voting districts under the Elections Clause, the case should be dismissed.

It does not appear that the court has ruled on this motion.

The Trial

The trial began on Monday.  The Philadelphia Inquirer reported:

The judges heard from two witnesses Monday: Daniel McGlone, an analyst at Philadelphia-based mapping and geographic data analysis firm Azavea, and Anne Hanna, a doctoral student at Georgia Tech.

McGlone described the results of his analyses of the congressional map and election results, going through districts to show ways that they appeared to favor Republicans. Hanna ran through maps she had created using data, provided by Turzai, that was used during the redistricting process, to similarly show how they appeared to favor Republicans.

On Tuesday, WHYY reported that eight voter plaintiffs testified that they believe their vote doesn’t count.

The Defense then began presenting its case, first calling witness Dr. McCarty (who also submitted an expert report in LWV v. PA).

WHYY reported that on Wednesday Republican staffers testified that partisan data was used to form the 2011 plan.

Closing arguments are expected today.

Legislative Immunity

Unlike Judge Brobson in LWV v. PA, the Judges in Agre have allowed depositions of Speaker Turzai and President Pro Tempore Scarnati.  However, the depositions are still subject to dispute and have not yet been released to the public.  At the depositions, WHYY reports the legislators refused to answer certain questions, claiming legislative immunity.

The claims have not yet been resolved and Plaintiffs have requested sanctions against the legislators for refusing to comply with court orders on discovery.

Motion For Judgment as a Matter of Law

On December 6, 2017, Legislative Defendants moved for Judgement under FRCP 50 (as a matter of law) or 52(c) (judgment on partial findings), again arguing Plaintiffs lack standing.  They also argued that (1) Plaintiff’s showing that the expected number of winning seats that would occur if districts were drawn using even handed criteria does not result in a constitutionally cognizable claim; (2) Plaintiff’s proposed standard of showing that partisan intent is the “substantial motivating factor” behind the 2011 plan contravenes Supreme Court precedent; (3) Plaintiffs have not shown that the 2011 plan resulted in a Congressional delegation composition that a majority of people could not substantially change; and (4) under Supreme Court precedent the Constitution does not require proportional representation of any sort.

About the Author:  

Whitney Snyder, attorney at Hawke, McKeon & Sniscak, LLP, represents clients in wide-ranging appellate matters in state and federal court.  Her practice focuses primarily on administrative agency appeals and litigation.  Prior to joining the firm Whitney interned at the Pennsylvania Supreme Court and Pennsylvania Public Utility Commission.