September 27, 2017

By: Whitney Snyder

In this Part 3 of our series exploring gerrymandering through the case of LWV v. PA, we explain the current procedural status of LWV v. PA, and explore the arguments related to the General Assembly’s request to stay. For more information on redistricting and the concept of justiciability in gerrymandering cases, refer to Parts 1 and 2 of this series.

Suing the Commonwealth

In their quest to stop political gerrymandering, on June 15, 2017, Petitioners, the League of Women Voters (LWV) and a group of Democratic Pennsylvania voters, filed a petition for review in the Commonwealth Court’s original jurisdiction, naming the following government respondents:

  • The Commonwealth of Pennsylvania
  • The General Assembly
  • The Governor
  • The Lieutenant Governor and President of the PA Senate
  • The Speaker of the PA House of Representatives
  • The PA Senate President Pro Tempore
  • The Secretary of the Commonwealth (Secretary)
  • The Commissioner of the Bureau of Commissions, Elections, and Legislation of the PA Department of State (Commissioner)

Petitioners brought the suit in the Commonwealth Court because the Commonwealth Court, not a Court of Common Pleas, has exclusive original jurisdiction over most civil actions against the Commonwealth government and its officers pursuant to Chapter 7 of the Judicial Code.  Lawsuits against the Commonwealth are governed by the Pennsylvania Rules of Appellate Procedure, Chapter 15, which is the chapter that also governs procedures on appellate review.  This is why the action is styled as a petition for review, rather than a complaint under the Pennsylvania Rules of Civil Procedure.  See Darlington, McKeon, Schuckers, and Brown, West’s Pennsylvania Practice at Vol. 20 pp. 175-246 (2015-16 Ed.) for a full explanation of the Commonwealth Court’s original jurisdiction, Vol 20A pp. 20-21 for an explanation of how the rules of appellate procedure for original jurisdiction differ from the rules of civil procedure, and Chapter 15 generally for explanation of rules of appellate procedure.  Notably, for original jurisdiction actions in the Commonwealth Court, Pa. R.A.P. 1517 incorporates the rules of civil procedure “so far as they may be applied.”

Responsive pleadings in the case took two forms, answers and preliminary objections.  The Attorney General on behalf of the Commonwealth of Pennsylvania and the Governor preliminarily objected pursuant to Pa. R.A.P. 1516(b) to their inclusion in the suit on grounds that they had no involvement in the redistricting and thus are not proper parties.  The Secretary and the Commissioner, pursuant to Pa. R.A.P. 1516(b), filed an answer and new matter requesting judgment in their favor because they likewise allege they are not proper parties.  The Lieutenant Governor also answered the petition for review, but requested the court consider Petitioners’ claims and grant appropriate relief to address constitutional infirmities.

The General Assembly, President Pro Tempore of the Senate, and Speaker of the House preliminarily objected and requested the court dismiss LWV’s petition based on:

  • lack of jurisdiction, alleging gerrymandering claims are non-justiciable,
  • legal insufficiency alleging the petition for review inadequately plead that electoral power is unconstitutionally diminished;
  • failure to state a claim upon which relief may be granted regarding free speech and free association claims;
  • lack of standing regarding the lead petitioner League of Women Voters because as an organization it has no right to vote of its own;
  • failure to state a claim upon which relief may be granted regarding petitioners living in districts with democratic advantages (the “packed” districts); and
  • lack of standing to challenge the redistricting plan on a state-wide basis (as opposed to district by district).

In response to pleadings that the Governor, Commonwealth, Secretary and Commissioner are not proper parties, Petitioners’ replies sought to keep these parties in the case. Petitioners also opposed the General Assembly’s preliminary objections and requested a briefing schedule.

A group of republican voters applied to intervene in the case pursuant to Pa. R.C.P. 2327-28.  This intervention is scheduled to be argued on October 4, 2017.

The Request for Stay

Prior to the responsive pleadings, the General Assembly requested stay of the proceedings pending the outcome of a similar case currently before the U.S. Supreme Court – Gill v. Whitford.  No rule of appellate procedure specifically allows for stays in original jurisdiction matters, and no rule of civil procedure specifically allows courts to stay proceedings pending the outcome of another case.  Instead, the power to stay proceedings is inherent in the court’s power to schedule disposition of cases to advance a fair and efficient adjudication.  See, e.g., Israelit v. Montgomery County, 703 A.2d 722, 724 n.3 (Pa. Cmwlth. 1997) (“Trial courts have the inherent power to stay proceedings in a case pending the outcome of another case, where the latter’s result might resolve or render moot the stayed case.”).

The application for stay will be argued on October 4, 2017.  The Commonwealth Court may stay LWV v. PA pending the outcome of Gill v. Whitford if it finds Gill v. Whitford “might resolve or render moot” LWV v. PA.  While Gill v. Whitford is a gerrymandering case that challenges political redistricting in Wisconsin, the redistricting challenges in that case are based solely on the U.S. Constitution, while challenges in LWV v. PA are based solely on the Pennsylvania Constitution, which oftentimes provides broader protections than the U.S. Constitution as we saw during our Constitution Week series.

The primary obstacles gerrymandering opponents face in both cases relate to justiciability – whether there is a manageable standard courts can apply to resolve a gerrymandering case, what that standard may be, and what evidence may meet it.  In Part 2, we discussed that while at the state and federal level gerrymandering cases are currently considered justiciable, this status at the federal level remains in question because a majority of the Court has never agreed on a manageable standard.  Moreover, while Pennsylvania’s Supreme Court has twice held that gerrymandering cases are justiciable, in doing so it framed its manageable standard based on the standard a plurality of the U.S. Supreme Court set forth in Davis v. Bandemer, 478 U.S. 109 (1986); a standard a majority of the U.S. Supreme Court Justices seem to have since rejected in Vieth v. Jubelirer, 541 U.S. 267 (2004).  The Pennsylvania Supreme Court has not addressed the issue since that time.

Thus, the General Assembly in its application for stay argues that if the U.S. Supreme Court in Gill v. Whitford determines that case to be non-justiciable, then LWV v. PA will be rendered moot.  However, this argument appears unavailing – the Court’s determination in Gill v. Whitford will, at most, be of persuasive value to the Commonwealth Court because the Commonwealth Court is faced with justiciability claims related to Pennsylvania’s court system and violations of the Pennsylvania Constitution.  Remember from Part 2 of our series that Pennsylvania’s Supreme Court has held that justiciability questions are not constitutional issues, unlike at the federal level (separation of powers of the federal courts versus state legislatures), but instead issues of the courts’ own prudential concerns.  In addition, Pennsylvania courts may interpret the Pennsylvania Constitution to give additional rights to citizens, meaning that it could find equal protection or free speech rights impinged under a different – and justiciable – standard than the U.S. Supreme Court interpreting the federal counterparts.  If the Commonwealth Court determines the Pennsylvania Constitution provides greater protection of voting rights than its federal counterpart, especially as to the free speech claims (we discussed these rights in our Constitution Week series), it could find the claims in this case justiciable regardless of the findings in Gill v. Whitford.

The General Assembly also argues that if the U.S. Supreme Court does determine the claims in Gill v. Whitford are justiciable, it may establish the standards that govern equal protection and free speech claims.   However, like the counterargument discussed above, these determinations would not be binding on the Commonwealth Court’s determination as to a violation of rights under the Pennsylvania Constitution.  While the Pennsylvania Supreme Court has previously determined Pennsylvania’s equal protection rights to be equivalent to those under the federal constitution, it (or the Commonwealth Court) could change that determination based on the facts of the case before it.  In addition, the Pennsylvania Supreme Court has interpreted free speech protections under the Pennsylvania Constitution to be broader than those under the U.S. Constitution, although it has not yet applied those protections in the voting rights arena.

Both LWV v. PA and Gill v. Whitford are scheduled for oral argument next week.  Check back often for the next post in our series where we will provide analysis of both arguments.

For additional coverage of gerrymandering in Pennsylvania, see this article from PennLive.

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.