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Pa. Supreme Court weighs what makes a fair congressional map as it prepares to pick new districts · Spotlight PA
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by Kate Huangpu of Spotlight PA | Feb. 18, 2022
Pennsylvania’s highest court will hear arguments today from lawyers for Gov. Tom Wolf, top lawmakers, and voters as it decides what the state’s congressional districts will look like for the next decade.
This article is part of a yearlong reporting project focused on redistricting and gerrymandering in Pennsylvania. It is made possible by the support of Spotlight PA members and Votebeat, a project focused on election integrity and voting access.
UPDATE: The Pennsylvania Supreme Court has picked a map.
HARRISBURG — Pennsylvania’s highest court heard arguments from lawyers for Gov. Tom Wolf, top lawmakers, and voters Friday as it began weighing what the state’s congressional districts should look like for the next decade.
The state Supreme Court agreed to take over the highly consequential process in early February following hearings held by a lower appellate judge on more than a dozen map proposals.
Commonwealth Court Judge Patricia McCullough recommended the justices pick the map passed by the Republican-controlled General Assembly and rejected by Wolf, who called it “highly skewed.” The high court asked for McCullough’s counsel but is not required to follow it.
During the hearing Friday, the justices asked the parties’ lawyers which factors they should prioritize when picking from among a group of maps that all appear to meet four traditional redistricting criteria: compactness, contiguity, minimal splits, and equal population.
The biggest differences emerged as the lawyers made arguments for and against considering whether a map is reflective of the partisan leaning of the state or if it was drawn with public input.
The court is working against the clock to pick new districts and keep the spring primary on track. Pennsylvania is unable to use its current map as the state lost one of its 18 seats due to sluggish population growth.
Already, the court has temporarily delayed the signature collecting process for candidates. On Friday, it signaled it could adopt an adjusted calendar put forth by the Wolf administration that keeps the May 17 primary date.
This is not the first time the Pennsylvania Supreme Court has been asked to weigh in on the state’s congressional districts. In 2018, it threw out the map approved by former Republican Gov. Tom Corbett in 2011, finding it to be an unconstitutional partisan gerrymander.
Below are highlights from Friday’s hearing:
Clifford Levine, the counsel for Senate Minority Leader Jay Costa (D., Allegheny) and the caucus, said all of the submitted maps fulfill the baseline requirements outlined in the high court’s 2018 ruling.
But the justices in that case, he said, also emphasized the principles of partisan fairness and responsiveness.
“It’s about having an equal opportunity to translate votes into equal representation,” said Levine.
Some justices pushed back on the map’s split of Pittsburgh, questioning why it was “absolutely necessary” and noting the plan is one of the least similar to the current map. Levine responded that the split may not be absolutely necessary, but is allowable in order to keep together communities of interest.
U.S. Rep. Guy Reschenthaler (R., Pa.) and a group of former Republican members of Congress submitted two maps, which prioritize minimizing county splits over other traditional criteria. His counsel argued that partisan fairness should not be a priority as it uses unstable metrics.
“Call it proportionality, call it responsiveness, call it partisan fairness,” said Matthew Haverstick, counsel for Reschenthaler. “I believe these are all code words for another way of saying gerrymandering.”
Haverstick also argued against maps with geographically large districts. One justice pushed back, saying, “It’s not geography, it’s people. I am sure that I have more people on my block in South Philadelphia than” in some counties.
The Carter petitioners are a group of citizens who live in densely populated areas. They brought one of the two lawsuits asking the state courts to take over the congressional redistricting process.
Their proposed map, they say, is as similar as possible to the current congressional map, with 86% of residents staying in the same district. Matthew Gorden, their counsel, argued that this approach of “least change” should be valued over other considerations.
Gorden said the map was guided by that principle and not motivated by partisan intentions.
“We don’t have visibility into why most of the other maps ended up where they did,” he said. “We do for the Carter map.”
Wolf, a Democrat, released his own map in response to one embraced by General Assembly Republicans. He said his goal was to show that it is possible to draw a congressional map that fulfills traditional criteria previously outlined by the court and is “free of gerrymandering.”
Robert Wiygul, counsel for Wolf, said the map “is totally consistent with Pennsylvania’s geography” and does not sacrifice this to achieve partisan fairness.
The justices questioned the decision to split Pittsburgh, asking why it was necessary. Wiygul said that strict adherence to minimizing splits must be balanced with realizing other values such as compactness and protecting communities of interest, “which can be both smaller than and larger than political subdivisions.”
The Gressman petitioners, who also brought one of the original lawsuits, are a group of math and science professors from Pennsylvania who created their map using “algorithmic constructions.”
Sam Hirsch, the group’s counsel, said their map has some of the best scores on three of the traditional criteria: compactness, minimal splits, and equal population. It also scores well on partisan fairness and creates new districts where minority populations have the opportunity to elect a candidate of their choice.
“You need not choose between Republicans and Democrats, between the legislature and the governor. … You also need not choose between the best map on the traditional, neutral criteria and the most fair,” Hirsch said. “[This] map is both of those things.”
The map proposed by state House Democrats has the strongest partisan lean favoring Democrats while still fulfilling traditional, neutral criteria.
David Senoff, counsel for the caucus, said the district lines were drawn using voter registration data to help guide partisan fairness, not past election results exclusively. Some justices pushed back on this choice, stating that voters don’t always choose candidates from their registered party.
Senoff spent much of his time arguing for the consideration of partisan fairness as one of the main factors, given that the maps score similarly in base, neutral criteria.
“I think we just have to come out and say that the way to break the tie is that partisan fairness needs to be elevated to what is otherwise a constitutional mandate requiring free and equal elections,” said Senoff.
This group of citizens from Butler County intervened with a primary goal to minimize splits and reunite counties — such as Butler, Cambria, and Washington — that are currently divided. Their counsel, Thomas W. King III, is being compensated by the Pennsylvania Republican Party.
The map does not split Pittsburgh, which was a major focus among the justices.
King said the group would also support the map known as Reschenthaler 1 or a map submitted by a group of Republican voters.
Draw the Lines, a project of the good-government group Committee of Seventy, encouraged people to get involved in the redistricting project by creating maps. The project assessed over 1,500 submitted maps to create the final proposal.
John Lavelle, counsel for the group, emphasized the collaborative process as compared to other maps that were drawn with input from only a few people.
“It reflects the values and judgments of ordinary Pennsylvania citizens who embraced the challenge and the opportunity of proposing a fair and balanced map,” said Lavelle.
Some justices again questioned the decision to split Pittsburgh. Lavelle responded that some sort of split is necessary in Allegheny County, and focusing on Pittsburgh prevents other, smaller municipalities from being divided.
This map was submitted by a coalition of good-government and redistricting advocates including Khalif Ali, executive director of Common Cause PA, and the League of Women Voters.
It is the only map that uses data that reallocates incarcerated people to their last known address, as the Legislative Reapportionment Commission did when it drew the state House and Senate maps.
Ben Geffen, counsel for the parties, said the map was based on Wolf’s proposal and altered to draw districts without attention to incumbency, among other changes.
Geffen rejected the idea that the high court should show deference to the map put forth by legislative Republicans just because it was passed by the GOP-controlled legislature.
Commonwealth Court Judge Patricia McCullough recommended that map, calling it “functionally tantamount to the voice and will of the People.” But Geffen said Wolf as governor also has a role in lawmaking and he exercised it by vetoing the map.
The Republican leaders from both the House and Senate are urging the court to pick the map passed by the GOP-controlled legislature and vetoed by Wolf.
The map was originally drawn by Amanda Holt, a noted redistricting advocate and former Republican Lehigh County commissioner, and championed by state Rep. Seth Grove (R., York).
Anthony Holtzman, counsel for the Senate Republican intervenors, argued that rather than considering partisan fairness to pick from among several maps that all reasonably fulfill the traditional criteria, the court should focus on the process.
Holtzman said the map approved by Republican lawmakers included public hearings and feedback.
Robert Tucker, counsel for House leadership, said the court should “respect” the state’s political geography, which favors the GOP because Democrats live clustered in urban areas.
‘Voters of the Commonwealth of PA’
The final intervenors, a group of Republican voters who call themselves the “mirror image” of the Carter petitioners, submitted a map that fulfills the traditional criteria previously outlined by the state Supreme Court.
Kathleen Gallagher, legal counsel for the intervenors, said the court should not focus on considerations like partisan fairness when selecting a final map. Rather, it should take a closer look at the maps that meet the basic standards and question decisions such as whether splits made were absolutely necessary.
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