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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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