by Capital-Star Guest Contributor, Pennsylvania Capital-Star
June 29, 2023
By Patrick Beaty
On Tuesday, the U.S. Supreme Court handed down an important decision with major implications for the future of congressional redistricting in Pennsylvania.
The case of Moore v. Harper involved an appeal by Republican lawmakers in North Carolina who argued that their state’s courts lacked authority to reject a congressional map drawn by the state legislature. The North Carolina Supreme Court had ruled that the map violated provisions in that state’s constitution.
The case turned on the validity of the so-called “independent state legislature” theory, which is based upon a highly questionable interpretation of the Elections Clause in the U.S. Constitution. That clause states that the “times, places and manner” of holding elections for senators and representatives are the responsibility of the legislature in each state, subject to federal law.
Of course, it’s one thing to say that state lawmakers have constitutional power to decide how federal elections will be conducted. And it’s quite another to say that state courts have no role in reviewing whether lawmakers followed the rules when they gerrymandered the congressional map hugely in their own favor.
In a nutshell, Republicans were trying to carve out an exception to one of the core principles upon which our nation and states were founded – the separation of powers among coequal branches of government.
So, we should all breathe a big sigh of relief (and even surprise) that a 6-3 majority of the Court soundly rejected the independent legislature theory.
Let us not forget that this same U.S. Supreme Court recently declared that federal courts lack jurisdiction to consider redistricting plans. If they had ruled in favor of North Carolina Republicans to find that state courts are likewise impotent to stop extreme partisan gerrymandering, the implications for our system of democracy would have been felt nationwide, but mainly in states with one-party control of government.
Pennsylvania was one such state back in 2011 and Republicans took full advantage to redraw congressional districts in their favor.
The map was eventually thrown out by the state Supreme Court in 2018. The court said that map was an extreme partisan gerrymander that discriminated against Democratic voters in violation of the state Constitution.
For Pennsylvania, the most immediate impact of the Moore v. Harper decision is that the map approved by our state’s highest court in 2022, after the legislature and Governor Wolf failed to agree, will likely remain in place until the next round of redistricting after the 2030 decennial census.
That means it is also likely our congressional delegation will continue to approximately reflect the partisan leanings of the voters in each district and of the state in whole.
No one can predict with confidence where things will stand in 2031.
Right now, control of Pennsylvania government is divided with Republicans in control of the state Senate and Democrats holding a slim majority in the House. It’s possible that control of either or both chambers could be different in 2031. Democrat Josh Shapiro’s time as governor will have ended, even assuming he runs and wins re-election in 2026.
What is predictable, sadly, is that both parties will once again do whatever they can to gain advantage in the redistricting process. But thanks to the 6-3 majority in Moore v. Harper, the Pennsylvania Supreme Court will still be there as a constitutional backstop against partisan overreach.
Reformers have reason to celebrate. A different result could have been catastrophic. But, what does it all mean for the future of redistricting in Pennsylvania? Has anything really changed?
If nothing else, the intensity of the battle both for and against the independent legislature theory has again shined a bright light on the raw partisanship of the redistricting process in this country. Republicans are again exposed as a political party willing to jettison long-accepted constitutional principles in order to attain short-term partisan goals.
What this decision did not do is to make the need for reform moot. The death of the independent legislature theory should not be seen as a positive gain in the fight against gerrymandering. But a win is still a win. Reformers should use it as a rallying cry for positive democratic reforms. Not the least of which is a redistricting process that is controlled not by politicians, but by the voters themselves. Democrats, Republicans, third parties and independents.
Pennsylvania must enact a truly independent redistricting commission for both congressional and state legislative redistricting. Only then will most voters feel confident that, even if the candidate they voted for did not win, at least the process was fair and their vote counted the same as every other.
Patrick Beaty was the volunteer legislative director of Fair Districts PA from 2017 to 2022. His work appears frequently on the Capital-Star’s Commentary Page.
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