POLITICAL JUNKIE ALERT: CONGRESSIONAL REDISTRICTING COMES TO THE PA SUPREME COURT.

Posted By Cliff Tuttle | December 30, 2017

No. 1,387

LEAGUE OF WOMEN VOTERS OF PA, ET AL. v. COMMONWEALTH OF PENNSYLVANIA ET EL., NO. 261 M.D. 2017

Image: dailykos.com

The Pennsylvania Supreme Court directed Judge Kenneth Brobson of the Commonwealth Court to conduct a non-jury trial and to find facts and recommend conclusions of law regarding the claim of the Petitioners, who included various registered voters in the Democratic Party, that the legislative reapportionment of Pennsylvania’s 18 congressional districts was unconstitutional.

Judge Brobson concluded that the Petitioners have established by a preponderance of the evidence that the redistricting plan was motivated by partisan considerations, which enabled the Republicans to consistently win 13 out of 18 congressional seats. However, while characterizing the method of redistricting as unfair, “Petitioners have not articulated a judicially manageable standard by which this Court can discern whether the 2011 Plan crosses the line between permissible partisan considerations and unconstitutional partisan gerrymandering under the Pennsylvania Constitution.”

In addition, the Petitioners did not present evidence that the redistricting plan constituted an act of retaliation against political opponents, one of the criteria for unconstitutional gerrymandering established in prior caselaw.

“A lot can be said about the 2011 Plan,” the opinion states, “much of which is unflattering yet justified. Petitioners, however, have failed to meet their burden of proving that the 2011 Plan, as a piece of legislation, clearly, plainly, and palpably violates the Pennsylvania Constitution. For the judiciary, this should be the end of the inquiry.”

While this conclusion is based upon Judge Brabson’s assessment of the current state of the law, two cases are pending before the United States Supreme Court that could change everything.  In the case of Gill v. Whitford, the Supreme Court has stayed the implementation of the decision of the United States District Court for the Western District of Wisconsin that a plan in that State violates the pending disposition of the appeal to that Court. See 137 S. Ct. 2289 (2017).In Benisek v. Lamone, the Supreme Court will consider a claim from Maryland brought under the FirstAmendment, including a retaliation allegation.

Under these circumstances, the Pennsylvania Supreme Court might well postpone consideration of this case until after the U.S. Supreme Court takes action in 2018.

CLT

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CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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