February 7, 2018

By: Whitney Snyder

On February 5, 2018 U.S. Supreme Court Justice Samuel Alito denied the General Assembly’s request to stay the PA Supreme Court’s order striking down the 2011 districting plan as unconstitutional and ordering the General Assembly to submit a new plan while simultaneously putting in place procedures for the Court to order its own plan as a back-up should the General Assembly fail to submit a plan that the Governor approves.

So, it appears Pennsylvania will have a new map in place for the 2018 congressional elections.  It also appears unlikely that the U.S. Supreme Court will grant certiorari to review the case.  One of the prongs Justice Alito considered in denying the stay was whether there is a “reasonable probability” the Court will consider the case on the merits.

The General Assembly has also lodged other attacks at the PA Supreme Court’s decision.   Republican Representative Cris Dush from southwestern Pennsylvania circulated a memo seeking co-sponsorship for impeachment articles for the five Democrat Pennsylvania Supreme Court Justices. The memo states impeachment is proper because of their ruling in LWV v. PA, which it categorizes as “blatantly and clearly” contradicting the plain language of the Pennsylvania Constitution.

On November 2, the General Assembly requested that Justice Wecht recuse himself based on various public comments he made during his candidacy.  Justice Wecht refused, explaining that his comments informed voters of his views on gerrymandering, but did not reach the standard for recusal of committing himself to an outcome in a particular case.  He reasoned that the General Assembly’s chosen statements demonstrated “a degree of equivocation and reserve on my part that defies” the General Assembly’s characterization of his statements.

If Justice Wecht had recused himself, the Court’s decision in November that dissolved Judge Pellegrini’s stay of the case and fast tracked the proceeding would be split 3-3.

The General Assembly also requested information from Justice Donahue to publicly disclose statements she has made so the General Assembly can also consider whether to request that she too recuse herself form the proceeding.  Justice Donahue responded that she has “never made any pledges, promises, or commitments other than to faithfully apply the law.”

If both Justices had recused themselves, the decision on the stay would have reversed.

Various sources also report that Justice Mundy (who opposed dissolving the Commonwealth Court’s stay, fast tracking the case, and ordering a new map) failed to initially report a $25,000 campaign contribution from a PAC supporting Senator Scarnati.  She filed an updated disclosure on February 5, and the contribution has been publicly available on the Pennsylvania Department of State website.  While this could be the basis for a request for recusal, Petitioners have not made such a request.

Senator Scarnati has also refused to comply with the Court’s January 26 order requiring the General Assembly to turn over data for its special master to use in designing the back-up map.

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.