March 19, 2018
By: Whitney Snyder
Today federal courts refused to stay application of the Pennsylvania Supreme Court’s 2018 districting map to be used in the upcoming 2018 Congressional Elections that it issued on February 19, 2018.
In our last post we discussed two attempts to obtain from federal courts a stay of the implementation of the map for the 2018 elections. On February 27, 2018, the General Assembly sought to stay the Court’s order via an emergency petition to the U.S. Supreme Court. Today, Justice Alito denied the request. As we previously discussed, Justice Alito’s denial of the stay may indicate that the U.S. Supreme Court will not review the case.
On February 22, 2018, State Senate Majority Leader Jake Corman and Senator Mike Folmer and some Republican members of Pennsylvania’s Congressional delegation (U.S. Reps. Lou Barletta, Ryan Costello, Mike Kelly, Tom Marino, Scott Perry, Keith Rothfus, Lloyd Smucker, and Glenn Thompson) filed a complaint in the U.S. District Court for the Middle District of Pennsylvania and requested a preliminary injunction staying application of the Court’s map. Today, the appointed three member panel of judges denied the request and dismissed the case.
The Panel reasoned that the legislators do not have standing to bring their claim that the Pennsylvania Supreme Court’s decision violates the U.S. Constitution’s Elections Clause, which delegates districting to state legislatures. Standing in this instance is a U.S. Constitutional requirement for a federal court to have the ability to resolve a case. To have standing to bring a claim, a party must show that it has suffered injury to a legally protected interest, which injury is fairly traceable to the challenged action and redressable by a favorable ruling. As to the legislators, the harm alleged is that the Pennsylvania Supreme Court usurped the legislative power when it drew and adopted a new map because allegedly that power is solely delegated to the legislature under the Elections Clause. The panel reasoned based on U.S. Supreme Court precedent that the state legislators do not have standing because they cannot show any injury specific to them because a legislator cannot show an injury sufficient for standing when the alleged harm is borne equally by all members of the legislature. In order to have standing, the entire Pennsylvania legislature would have needed to file the complaint.
As to the U.S. Congressmen, the Panel reasoned that they cannot show injury in fact or that the action complained of caused the injury. No sufficient injury exists because the Congressmen do not have a legally protected interest in the composition of their electoral districts. Assuming arguendo that injury did exist, the Panel found insufficient causation because the actions complained of that the Pennsylvania Supreme Court unlawfully imposed mandatory redistricting criteria and failed to provide the General Assembly an adequate opportunity to pass a remedial congressional redistricting map is not the root of the injury. The true cause of the injury is overturning the 2011 Plan. The Congressmen, however, complained about the imposition of the new map. The 2011 Plan being overturned is not action the Panel has authority to rule on (because it would be an appeal of the Pennsylvania Supreme Court’s order, which only the U.S. Supreme Court has jurisdiction over) and would thus exist regardless of what the Panel would rule. Thus the true injury is that the 2011 map did not survive, but that is not what the Congressmen could or did complain about.
The Court also found plaintiffs could not meet prudential (judge made as opposed to Constitutionally required) standing requirements, which mandate that a party must litigate its own interests, not those of third parties. The exception to this rule is that a third party can represent the interest of another where the third party has a close relationship with the person who possesses the right and when there is a hindrance to the possessor’s ability to protect his own interests. The Panel found the legislators could not show an inability for the full Pennsylvania legislature to protect its own interest because the General Assembly was a party to the state-court proceedings and sought an emergency stay from the U.S. Supreme Court discussed above.
So, what’s next? It seems likely the Court’s map will be used for the 2018 elections given that the last day to file nomination petitions was March 6 and the last day to withdraw nomination petitions is March 21. However, the Plaintiffs can appeal the dismissal of their case to the United States Supreme Court and attempt to seek another emergency stay. The Court could also grant certiorari in LWV v. PA, but that is a lengthy process unlikely to overturn the map prior to the 2018 elections.
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.