Josh First's Blog

PA Supreme Court Magically Turns Itself into Legislature

In an anticipated 4-3 partisan decision today, the Pennsylvania Supreme Court majority rejected the original and heavily gerrymandered map submitted by the PA Senate Republicans, as well as three heavily gerrymandered maps subsequently submitted in the past week by the PA House Democrats, PA Senate Democrats, and even PA Governor Tom Wolf.

Instead of declaring none of the legislative district maps to be constitutional, because theoretically none of them have met the constitutional tests for compactness and adhering to existing political boundaries, and instead of declaring the governor’s map completely unwelcome because it is not his role to draw voting district maps, the PA Supreme Court has actually drawn its own redistricting map.

No court anywhere has the constitutionally derived role of drawing voting district maps, and no court anywhere can justify doing so. According to the US Constitution, drawing voting district maps is specifically a state legislature role.

I will say that the latest map, drawn by the PA Supreme Court majority, looks better in some ways than the other four maps recently submitted for review. This map is certainly tighter and breaks fewer county lines than the others. In that sense, it is a more reasonable map.

But that is not the question.

The first question is, should Pennsylvania just get on with voting, as we are now running out of time for the primaries, and just use the established map, deficient though it may be?

The second question is, should the US Supreme Court allow the PA Supreme Court to, in effect, turn itself into a legislature, by performing a key function that is specifically relegated only to the state legislature by the US Constitution?

Hopefully, the US Supreme Court will deny the lower court’s power grab, and direct Pennsylvania to go on with the previous voting district map, flawed though it was, the greater interest being in letting voters have a say at all, as opposed to political elites pulling strings to keep themselves in power.

As imperfect as the legislative process is, and as distasteful as the gerrymandering process is, it is what it is, meaning that this is what we’ve got. No court can magically turn itself into another branch of government. So let’s go with the existing map we had six weeks ago, and get on with elections.