Pennsylvania legislative leaders seek delay in gerrymandering lawsuit
After months of judicial system red tape, the League of Women Voters’ gerrymandering lawsuit against Pennsylvania legislators is finally kicking into gear.
The League of Women Voters filed the suit June 15, asking the Pennsylvania Commonwealth Court to strike down the state’s current congressional map, drawn and approved in 2011, and order new maps to be created before the next election.
Eighteen individuals, each representing one of Pennsylvania’s congressional districts, joined the League’s lawsuit against a number of top state officials, including Gov. Tom Wolf, Lt. Gov. Mike Stack, House Speaker Mike Turzai and Senate President Pro Tempore Joe Scarnati.
With nearly two dozen petitioners and eight respondents named in the suit, it took some time to certify an almost endless stream of applications from both sets of lawyers to argue the case in front of the Commonwealth Court.
Then, once the attorneys on both sides were in place, the court was hit with several flurries of motions in August.
‘Meritless’ delay: Lawyers for the Pennsylvania General Assembly, Turzai and Scarnati filed an application Aug. 9 seeking a stay in the case until the U.S. Supreme Court delivers its ruling on Gill v. Whitford, a similar case involving claims of partisan gerrymandering in Wisconsin.
The legislative leaders’ lawyers cite several similarities between the plaintiffs in Gill v. Whitford and the League of Women Voters’ suit, including the fact both lawsuits were brought by Democrats alleging Republican misconduct in drawing congressional maps.
However, the petitioners’ attorneys argue their case strictly involves free speech protections under the Pennsylvania Constitution and must be heard by a Pennsylvania court.
The petitioners are represented by David Gersch, of the Washington, D.C.-based law firm Arnold & Porter Kaye Scholer, and Mary McKenzie, of the Public Interest Law Center in Philadelphia.
“Faced with these grave constitutional claims, the General Assembly asks this court to do nothing except delay,” Gersch and McKenzie wrote. “The General Assembly’s stay application is meritless. It is nothing more than a brazen effort to deny Petitioners their day in court and insulate the challenged redistricting plan … from judicial review.”
Efficiency gap: Numerous lawsuits challenging partisan gerrymanders have been rejected over the past three decades by courts unwilling to accept those suits’ proposed standards for measuring the extent of district-map manipulation.
In November 2016, a federal court in Wisconsin ruled 2-1 in favor of Whitford’s constitutional challenge to the state’s district maps, which relied, in part, on a new mathematical standard to measure gerrymandering, called the efficiency gap model.
The model measures the level of competitiveness in each election by calculating the number of “wasted votes” in each race. Wasted votes are votes that do not contribute to a successful candidate’s victory, said Eric McGhee, a research fellow at the Public Policy Institute of California and creator of the efficiency gap model.
These practices by the majority party create “safe districts” by ensuring its opponents win their districts by large margins while the majority wins its own districts by slim margins to maximize the opposition party’s wasted votes, McGhee has said.
Turzai and Scarnati’s lawyers argue the Commonwealth Court should wait to hear arguments on the League of Women Voters’ suit until the U.S. Supreme Court determines whether the efficiency gap model is a judicially acceptable standard.
Packing and cracking: While the League’s suit also uses the efficiency gap model, Gersch and McKenzie insist in their response that the model is not used identically in both cases, so the Supreme Court’s ruling in Gill v. Whitford does not constitute a ruling in the League’s suit.
A ruling in Gill v. Whitford could come as late as June 2018, and “such a delay would eliminate any possibility of resolving this case in time for the 2018 elections,” Gersch and McKenzie wrote.
The League of Women Voters’ lawsuit alleges that Republican legislators who drew the maps in 2011 “dismantled Pennsylvania’s existing congressional districts and stitched them back together with the goal of maximizing the political advantage of Republican voters and minimizing the representational rights of Democratic voters.”
Under the state’s current maps, Democratic voters are “packed” into five districts where they win in landslides and “cracked” across the other 13 districts where they have no chance of winning a majority of the votes, Gersch said when announcing the lawsuit in June.
The maps, and therefore the congressmen, are “unresponsive to the will of the people,” Gersch said.
The Commonwealth Court will hear arguments at 10 a.m. Oct. 4on Scarnati and Turzai's application for a stay in the case.