Judge: Lawsuit running out of time to alter 2018 elections

Jason Addy
York Dispatch

A gerrymandering lawsuit filed against Pennsylvania legislative leaders went to court Wednesday, Oct. 4, but it could be several months before the courts hear opening arguments in the case, according to the judge who presided over the hearing.

Lawyers representing the legislative leaders and the League of Women Voters of Pennsylvania squared off in Commonwealth Court in Harrisburg over the leaders’ attempt to halt the League’s lawsuit.

David Gersch, an attorney representing the League of Women Voters of Pennsylvania in its gerrymandering lawsuit against legislative leaders, takes questions after a hearing in Commonwealth Court in Harrisburg. Wednesday, Oct. 4, 2017. Jason Addy photo.

The lawsuit claims Republicans engaged in extreme partisan gerrymandering when drawing the current congressional maps in 2011. Lawyers for the League are seeking a ruling from the court that strikes down the congressional maps and orders new maps to be drawn before the 2018 election.

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During arguments over leaders’ application to stay the case, Commonwealth Court Senior Judge Dan Pellegrini warned lawyers it is nearly impossible for the case to make its way through the state court system in time to affect the 2018 elections.

At the earliest, the Commonwealth Court could hear opening arguments in December, but it’s more likely to happen around February 2018, making any ruling too late to affect next year’s congressional elections, Pellegrini said.

“You can hope, but I can tell you it isn’t going to happen,” Pellegrini told David Gersch, the lead attorney in the League’s lawsuit.

The League is joined in its suit by 18 individual voters, each representing one of Pennsylvania’s 18 U.S. congressional districts.

'Stabbing in the dark': Representing House Speaker Mike Turzai, Senate Pro Tempore Joe Scarnati and the Pennsylvania General Assembly, attorney Jason Torchinksy asked Pellegrini to delay the lawsuit until the U.S. Supreme Court rules on a similar case.

The U.S. Supreme Court heard arguments Tuesday, Oct. 3, in Gill v. Whitford, a case involving claims of partisan gerrymandering by Republicans drawing Wisconsin’s state legislative districts.

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However the U.S. Supreme Court rules in Gill v. Whitford, that ruling will establish standards for the Supreme Court of Pennsylvania to follow if and when it hears the lawsuit brought against legislative leaders by the League of Women Voters of Pennsylvania, Torchinksy argued.

“Without (the court’s ruling in) Whitford, this court is stabbing in the dark as to what the standards are,” Torchinsky said.

Breakthrough Visuals graphic artist Terry LaBan's rendering of the discussion at a Fair Districts PA event in Montgomery County in February. (Courtesy: www.breakthroughvisuals.com)

If the U.S. Supreme Court rules that the efficiency gap and other standards used to measure gerrymandering in Gill v. Whitford are not matters that can be decided by the courts, the state Supreme Court will likely do the same with the League’s suit, Torchinksy said. 

While the League’s suit also uses the efficiency gap model, Torchinsky characterized the other standards it uses as “some social science, mathematical test hodgepodge.” A stay in the case would give lawyers and experts the necessary time to debate the merits of the standards in the League’s suit, Torchinsky said.

“What we’re asking you to do is get this case right and not rush it,” Torchinsky said.

'Constitutional Law 101': David Gersch, the lead attorney in the League’s suit, described his side’s opposition to lawmakers’ application to stay the case until a ruling has been made in Gill v. Whitford as “Constitutional Law 101.”

While acknowledging the similarities between the two cases, Gersch said the League’s suit focuses on free expression and free association protections under the Pennsylvania Constitution.

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A ruling in Gill v. Whitford “will never, ever moot this case” because the U.S. Supreme Court has no power to rule on Pennsylvania law, Gersch said.

To expedite proceedings and increase the chance of a ruling in time to alter the maps before the 2018 election, Gersch said the League’s team of lawyers is ready and willing to streamline their case and limit discovery.

However, Pellegrini was unsure that would make any difference, given the court’s tight calendar.

“I’ve never seen so much paper filed,” Pellegrini joked.

After listening to arguments for 45 minutes, Pellegrini took lawyers from both sides into his chambers for an hourlong discussion.

Holding a short news conference after the hearing adjourned, Gersch said he expects Pellegrini’s ruling on the leaders’ application to stay the suit within the next few weeks. 

Gersch refused to speak about what was said in the judge’s chambers, and lawyers for the legislative leaders declined comment as they left the Pennsylvania Judicial Center, which houses the Commonwealth Court.