January 22, 2018

By: Whitney Snyder

Today the Pennsylvania Supreme Court announced the 2011 districting plan violates the Pennsylvania Constitution and enjoined its use in further elections, including the May 2018 primary.  The Court said the General Assembly can submit a new districting plan to the Governor by February 9, 2018.  If the Governor accepts the plan, it must be submitted to the Court by February 15. If the General Assembly does not submit a plan or the Governor does not accept the plan, the Court will adopt a plan based on the record of the case, and all parties can submit proposed plans and have the opportunity to be heard.

The Court instructed that the plan shall consist of:

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 March 13, 2018 special election will proceed under the 2011 plan.

The Court said an opinion will follow.  The order does not explain under which provision(s) of the Pennsylvania Constitution the Court has found the 2011 plan to be unconstitutional.

The order is per curiam, but Justice Baer filed a concurring and dissenting statement, Chief Justice Saylor filed a dissenting statement in which Justice Mundy joined, and Justice Mundy filed a dissenting statement.

Justice Baer concurred that the 2011 plan is unconstitutional and that it should be redrawn, but dissented on the relief taking place in time for the 2018 election, reasoning that rushing to put a new map in place could cause serious disruption of the election process.

Chief Justice Saylor’s dissent explains that he thinks it more appropriate to stay the case and take more time to consider it.  He stated:

My position at this juncture is only that I would not presently upset those districts, in such an extraordinarily compressed fashion, and without clarifying – for the benefit of the General Assembly and the public – the constitutional standards by which districting is now being adjudged in Pennsylvania.

Justice Mundy joined Chief Justice Saylor’s dissent in full, but she wrote separately to express concerns on the vagueness of the per curiam order, stating it fails to give guidance on how to create a constitutional, non-gerrymandered map.  She also expressed concern that the Court redrawing the map raises a federal constitutional issue and that the Court’s approach is imprudent.

Various sources report that the General Assembly will appeal the Court’s order to the U.S. Supreme Court in hopes of a stay, but that the General Assembly will work on a new map in the meantime to meet the Court’s deadline.

It is not entirely clear that the Court’s decision involves an issue appealable to the U.S. Supreme Court – the Court held the 2011 plan unconstitutional solely under the Pennsylvania Constitution, over which the Pennsylvania Supreme Court is the final arbiter.  However, the duty for the General Assembly to draw the districting plan in the first place stems solely from the United States Constitution, Article 1 Sec. 4:  “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof[]”).  Thus, the General Assembly will likely argue that any decision dictating how congressional districting plans may or may not be drawn involves a question of interpretation of the Federal Constitution, of which the U.S. Supreme Court is the final arbiter.

In various cases involving claims that congressional districts are unconstitutional under the Federal Constitution, the U.S. Supreme Court has preliminarily stayed the decisions of the lower courts while it decides the two cases currently before it on this issue – Gill v. Whitford and Benisek v. Lamone.

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.