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A funny thing happened on the way to completing legislative redistricting in Pennsylvania: diverging from all prior experience, the Pennsylvania Supreme Court determined that the plan adopted by the Legislative Redistricting Commission (LRC) was invalid and remanded it back for a second drawing. In so doing, the court threw PA's primary process--scheduled to be held at the end of April--into chaos (several parties have gone to Federal Court complaining that their Equal Protection rights are being violated).

The objections lodged with the court were myriad and predictable; like Frank Costanza on Festivus, the plaintiffs had a lot of problems with the plan! But as it turns out, so did the court. (New opinions available here).

To begin with, the commission took far too long:

On August 17, 2011, after a lengthy delay, the LRC accepted the U.S. census data as presented by the Legislative Data Processing Center (“LDPC”) and contractor Citygate GIS as “usable,” and resolved that the availability of the data triggered the ninety-day period for filing a preliminary redistricting plan.

If you read between the lines in the footnotes, you can take a guess at what the purpose of the delay was:

In a document provided to the LRC entitled “Legal Issues Implicated by the 2011 Decennial Legislative Reapportionment of the Commonwealth of Pennsylvania -- An Overview,” LRC’s counsel suggested that the data was available in usable form “only after the raw data with the breakdown by precinct and ward has been processed and edited by the LDPC [Legislative Data Processing Center] and the final form of data is delivered to the Commission.

My translation of this: the politicians who were responsible for drawing the maps had no intention of doing so until they had political data available at the precinct level.

You'll have to read the whole opinion to get the details, but the short of it is that the court did not believe that the redistricting rules imposed by the 1968 Constitution had been properly followed. Those rules were described in part by the court:

[N]ew Section 16 constitutionalized the equal protection language from Reynolds v. Sims, requiring that both Senate and House districts be “as nearly equal in population as practicable.” . . . Section 16 was amended to provide, as to both chambers of the General Assembly, that, “unless absolutely necessary,” no political subdivision was to be divided in forming a district, and the section made clear that the mandates of compactness and contiguity applied to both chambers.

Given the degree to which this language tracks the instructions given to the Florida legislature in the "fair districts" amendments to that state's constitution recently, I will be interested to see if the Supreme Court there follows Pennsylvania's track. Democrats probably ought to hope that it should.

What's also interesting for us is the  guidance the court's narrow majority (the Republican Chief Justice voting with the Democrats) gave to the LRC for its second attempt. Unfortunately, it is rather vague:

We realize that the task is not so simple as the production of a plan with “better” numbers; thus, we reject the invitation to set firm parameters. It is enough that the Holt  [one of the plaintiffs] plan here overwhelmingly shows that the 2011 Final Plan made subdivision splits that were not absolutely necessary, and certainly could not be justified on the population equality or other grounds proffered. Indeed, the proof is strong enough that we view it as inconceivable, to borrow from one of the U.S. Supreme Court’s equal protection decisions, that the magnitude of the subdivision splits here was unavoidable. See Kirkpatrick, 394 U.S. at 532 (“[I]t is simply inconceivable that population disparities of the magnitude found in the Missouri plan were unavoidable.”).

We likewise realize that the absence of certainty is a frustration for the LRC, a concern ably articulated by counsel. But, that is often the case when constitutional principles are at work, and particularly when competing constitutional principles apply. This is reflected in the U.S. Supreme Court’s own fact-specific decisional law in the equal protection cases and the Voting Rights Act cases, all factors with which the LRC must contend. In Reynolds, the High Court spoke of the Equal Protection Clause requiring “that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable.” 377 U.S. at 577. We trust, too, in the good faith of the LRC to fashion a plan, upon remand, that comports with all of the requirements of Article II, Section 16.

What does this mean for the LRC and, more importantly, for PA's upcoming legislative elections? I cannot be sure, but my advice is to watch Federal court. It seems impossible to me that the LRC will be able to enact a satisfactory new plan--and overcome the inevitable challenges to it under the court's new standards, in time.

(All emphasis--and errors--are mine.)


Will a Federal Court Draw Interim Districts for PA?

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42%21 votes

| 49 votes | Vote | Results

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Comment Preferences

  •  This is just a very, very quick reaction from me (5+ / 0-)
    Recommended by:
    marina, sapelcovits, jeffmd, Lujane, rmx2630

    There will be more of the 80+ page majority opinion to digest over time.

    Ok, so I read the polls.

    by andgarden on Fri Feb 03, 2012 at 01:00:48 PM PST

  •  Florida Supreme Court is still favorable (5+ / 0-)
    Recommended by:
    andgarden, marina, TofG, thetadelta, Lujane

    We more or less have 4D/3R Supreme Court in Florida thanks to Lawton Chiles holdovers still on the court.  We should get a fair decision on the redistricting case.

    •  We could (4+ / 0-)

      My prediction is that we will not. Pretty central to the PA court's decision here--and I should have noted this in the diary--is that the LRC's plans are not entitled to a presumption of validity/constitutionality. But it's a basic tenet of Constitutional law that legislative enactments are. And Florida's plans are still to be passed by the legislature.

      I will watch closely!

      Ok, so I read the polls.

      by andgarden on Fri Feb 03, 2012 at 01:16:29 PM PST

      [ Parent ]

  •  I can't add much (9+ / 0-)

    As co-counsel in the Kim case, challenging one of the districts (SD-15) which the Court singled out, I don't want to venture into my own opinions here.  I do want to highlight footnote 39:

    The Costa appellants have suggested that, with the use of available computer technology and familiarity with the necessary data, a new preliminary plan accounting for the objective criteria set forth in our Constitution can be generated in a matter of days.
    Petitions are now in the field for the April 24 primary, and must be filed by February 16.
    •  With "available computer technology" (4+ / 0-)
      Recommended by:
      tobendaro, terrypinder, TofG, Lujane

      the PA legislature could, in principle, have every member vote from home. I find that too exceedingly unlikely to happen any time soon!

      But I will keep my eyes open.

      I wonder if the tie-breaker will just decide to vote with the Democrats this time--and if that would actually help resolve the problem?

      Ok, so I read the polls.

      by andgarden on Fri Feb 03, 2012 at 01:23:03 PM PST

      [ Parent ]

      •  Glad the court reprimanded (4+ / 0-)
        Recommended by:
        andgarden, terrypinder, TofG, Lujane

        The delay in finalizing the map to such a late date.  They seemed to be annoyed with "availability of data" and such.

        "What if you're on a game show one day and the name of some random New Jersey state senator is the only thing between you and several thousand dollars? And you'll think to yourself, "if only I had clapped faster." - sapelcovits

        by rdw72777 on Fri Feb 03, 2012 at 01:24:50 PM PST

        [ Parent ]

  •  I thought it was pretty decent (3+ / 0-)
    Recommended by:
    andgarden, TofG, Lujane

    LRC can complain that hard parameters weren't set, but my favorite excerpt from guidance was this:

    Accordingly, we take this opportunity to reaffirm the importance of the multiple commands in Article II, Section 16, which embrace contiguity, compactness, and the integrity of political subdivisions, no less than the command to create legislative districts as nearly equal in population as “practicable.” Although we recognize the difficulty in balancing, we do not view the first three constitutional requirements as being at war, or in tension, with the fourth. To be sure, federal law remains, and that overlay still requires, as Reynolds taught, that equality of population is the “overriding objective.”

    To me it basically screams to be fair and limit bipartisanship that someone can actually prove.  

    I think the focus on the Holt map, particularly data showing splits that the LRC that Holt didn't do but still fell within acceptable population deviations proved the point that they were broken up to meet exactly 0 of the 4 commands was particularly compelling.

    "What if you're on a game show one day and the name of some random New Jersey state senator is the only thing between you and several thousand dollars? And you'll think to yourself, "if only I had clapped faster." - sapelcovits

    by rdw72777 on Fri Feb 03, 2012 at 01:21:35 PM PST

    •  So I guess the question is (1+ / 0-)
      Recommended by:

      what (minimal) changes can be made to the Holt plan to better suit the interests of LRC members? Because I have to assume that will be one of their options.

      Ok, so I read the polls.

      by andgarden on Fri Feb 03, 2012 at 01:24:46 PM PST

      [ Parent ]

      •  One of their options yes (3+ / 0-)
        Recommended by:
        andgarden, Lujane, Englishlefty

        But I don't know that they won't start from their own map and just re-implement stupidity.

        I'd think they will either get frustrated and be bi-partisan or double-down and fight on with a slightly nuanced version of their map.

        The rate its going, we're looking at a primary on Halloween LOL.

        "What if you're on a game show one day and the name of some random New Jersey state senator is the only thing between you and several thousand dollars? And you'll think to yourself, "if only I had clapped faster." - sapelcovits

        by rdw72777 on Fri Feb 03, 2012 at 01:26:51 PM PST

        [ Parent ]

        •  That's why I think a Federal court will (2+ / 0-)
          Recommended by:
          Lujane, Englishlefty

          step in.

          The question is: what is the absolute drop-dead date for a plan to be in place?

          Ok, so I read the polls.

          by andgarden on Fri Feb 03, 2012 at 01:28:13 PM PST

          [ Parent ]

          •  I'm not sure we'll test the limit (2+ / 0-)
            Recommended by:
            andgarden, Lujane

            I'm being mostly facetious about what i say.  I think the LRC will actually work pretty quick and backtrack from Holt like you mentioned.

            the court left open the fact that Holt wasn't the starting point or the barrier the new map had to clear, just that the LRC couldn't be so crazy with what they do, so obvious, and certainly not so easily proven to be in violation of statute.

            I quite enjoyed the read.

            "What if you're on a game show one day and the name of some random New Jersey state senator is the only thing between you and several thousand dollars? And you'll think to yourself, "if only I had clapped faster." - sapelcovits

            by rdw72777 on Fri Feb 03, 2012 at 01:30:40 PM PST

            [ Parent ]

  •  Good diary. (3+ / 0-)
    Recommended by:
    andgarden, Lujane, rdw72777

    I agree that it sounds like the political data didn't correspond with the new census data. Knowing how much  the TIGER data changed between 2000 & 2010 I would venture a guess that the registration data had to be geocoded from the ground up for the entire state. There was probably some population movement that unexpected as well that needed to be digested.

    ex-SSP. Central Califonia. -6.75,-4.97

    by hankmeister on Fri Feb 03, 2012 at 01:47:41 PM PST

  •  I think not setting guidelines (1+ / 0-)
    Recommended by:

    is a problem.  Maps have to be drawn and when the legislature has its maps thrown out and doesn't fully know why and doesn't know what to do to remedy it, there are problems.  The Court basically sends them off onto a snipe hunt where they draw a new map and hope it works out for the best.  

    Check out my new blog:

    by SoCalLiberal on Fri Feb 03, 2012 at 02:12:52 PM PST

    •  they've been given explanations for why their (3+ / 0-)
      Recommended by:
      SoCalLiberal, Lujane, Englishlefty

      maps sucked.

      I changed by not changing at all, small town predicts my fate, perhaps that's what no one wants to see. -6.38, -4.15

      by James Allen on Fri Feb 03, 2012 at 03:03:37 PM PST

      [ Parent ]

    •  You know what the court would say, right? (2+ / 0-)
      Recommended by:
      SoCalLiberal, Englishlefty

      You're asking for an advisory opinion!

      What really irritates me is when the go part way--like they did here.

      Ok, so I read the polls.

      by andgarden on Fri Feb 03, 2012 at 03:07:09 PM PST

      [ Parent ]

      •  Yeah I get it (1+ / 0-)
        Recommended by:

        Of course, some state courts are allowed to give advisory opinions.  Not sure if Pennsylvania is one of them.  

        I think setting down guidelines though is not neccesarily an advisory opinion.  You're setting down what the rules are (as you interpret them to be) and setting out what they need to be.  You're also setting down rules in response to an actual case and controversy before you.  The plaintiffs say the map is unconstitutional. You agree.  I don't think you're giving out an advisory opinion to say "Here's why this is unconstitutional.  Btw, here's what would be constitutional."

        Not setting out guidelines seems like a way to avoid added difficulty in a decision, not a way of avoiding an advisory opinion.  

        Off topic to this diary (but somewhat related), why are Patrick Murphy and Joe Sestak not running for Congress again?  PA-8 is now on the DCCC's Red to Blue list (I can't think of a better candidate than Murphy).  Sestak failed to win statewide but only very narrowly and in a terrible year for the Democrats.  Even with his district redrawn to be more Republican, would it be so much of a stretch for him to come back?  PA was already gerrymandered so Republican in 2001, it's hard to see how the legislature could draw the map to be more Republican (well in eastern PA).  

        House will be close in November.  I'd hate to see us come up a few seats shy because of some of these Dem candidates who wait till the last minute to decide they're not running or retiring from seats where we need to find good recruits.  

        Check out my new blog:

        by SoCalLiberal on Fri Feb 03, 2012 at 03:51:50 PM PST

        [ Parent ]

        •  Well, (4+ / 0-)
          Recommended by:
          Adam B, Lujane, SoCalLiberal, Englishlefty

          I actually don't know whether PA courts can issue advisory opinions either, but I agree that in this case it does not make a tremendous difference. The problem is that the court didn't really do a "here's what would be constitutional" section. They did suggest that a plan proposed by one of the plaintiffs would be, but they refused to set up an explicit test for future plans.

          And I suppose I'm sympathetic to a court being unwilling to do so. For one thing, that makes more work for lawyers! ;) But for another, there's a jurisprudentially trend of courts just not being willing to even give a hint of deciding future cases. Nobody wants to be buttoned down. And in a sense, it's really not the court's job to write a technical manual for the LRC. Though really, as I said above, I wish the court had given just a little bit more.

          As for Murphy and Sestak, in order: Murphy is running for AG, and IMO he has the inside track. That's no small thing; a Dem hasn't held the office since it's been elected separately. As for Sestak, I can't say for sure. I would speculate that it's because they made his district way too difficult to win again. I believe he lost against Toomey pretty substantially on the new lines.  

          Ok, so I read the polls.

          by andgarden on Fri Feb 03, 2012 at 04:00:56 PM PST

          [ Parent ]

        •  this is an unusual area of the law (4+ / 0-)

          The cases only come up once every ten years.  During oral argument, counsel for the LRC said he was relying on 40 years of precedent; the Chief Justice replied (I'm paraphrasing), "Isn't it really four, when you think about it?")

          So the Court does give some advice here.

  •  correct me if i'm wrong (2+ / 0-)
    Recommended by:
    andgarden, rdw72777

    but this is just the state level districts. The wackaloon congressional districts are still valid, yes?

    [insert pithy sigline here]

    by terrypinder on Fri Feb 03, 2012 at 02:55:25 PM PST

  •  Why didn't this court step in against the U.S. (0+ / 0-)

    Congressional Districts? Doesn't it have jurisdiction.? How could it have let the 7th District monstrosity to stand?

  •  Thanks for the explanation. Btw, is there any (1+ / 0-)
    Recommended by:

    worse gerrymandering this year then pa. 7?

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