On February 7, the Pennsylvania Supreme Court issued its full majority opinion in Pennsylvania’s redistricting lawsuit – League of Women Voters of Pennsylvania et al., v. Commonwealth of Pennsylvania et al.
In addition to the majority opinion written by Justice Debra Todd and joined by Justices Donohue, Dougherty, and Wecht, the Court issued a concurring and dissenting opinion from Justice Max Baer, as well as two dissenting opinions from Chief Justice Thomas Saylor (joined by Justice Sallie Mundy) and Justice Mundy.
In the majority opinion, the Court detailed the reasoning behind its January 22 order stating that, “[a]n election corrupted by extensive, sophisticated gerrymandering and partisan dilution of votes is not ‘free and equal’.” Accordingly, the Court found that the 2011 map violates the Free and Equal Elections Clause of the Pennsylvania Constitution, which has no counterpart in the U.S. Constitution. In analyzing that clause, the Court explained that, “[i]t is axiomatic that a diluted vote is not an equal vote, as all voters do not have an equal opportunity to translate their votes into representation. This is the antithesis of a healthy representative democracy. Indeed, for our form of government to operate as intended, each and every Pennsylvania voter must have the same free and equal opportunity to select his or her representatives.”
The Court also adopted and announced a new legal standard for determining whether a map is unconstitutional. According to the opinion, “neutral criteria of compactness, contiguity, minimization of the division of political subdivisions, and maintenance of population equality among congressional districts…provide a ‘floor’ of protection for an individual against the dilution of his or her vote in the creation of such districts.” The Court went on to state that when “these neutral criteria have been subordinated, in whole or in part, to considerations such as gerrymandering for unfair partisan political advantage, a congressional redistricting plan violates [the Free and Equal Elections Clause] of the Pennsylvania Constitution.”
“Pennsylvania has blazed a trail for other state courts to strike down partisan gerrymandered maps under state constitutions that contain similar guarantees that elections be ‘free and equal,’” said Mimi McKenzie, Legal Director of the Public Interest Law Center, one of two firms representing the petitioners. “Instead of serving as a punch line because of cartoon-shaped districts, Pennsylvania will now serve as a model.”
The majority opinion provides clear guidance for the upcoming remapping of Pennsylvania’s congressional districts, as well as for redistricting in future decades. The opinion notes that even if future technology allows legislators to satisfy neutral criteria while also crafting a partisan gerrymander, such a map can still be evaluated by the courts.
“This is an historic opinion. It recognizes partisan gerrymandering’s corrosive effects on representative democracy and provides enduring protections for Pennsylvania voters,” said David Gersch of Arnold & Porter, also representing the petitioners. “We hope and expect that this decision will provide a model for other states to protect their own voters from partisan gerrymandering’s pernicious effects under their own constitutions.”
Access all case documents here: https://pubintlaw.org/cases-and-projects/pennsylvania-redistricting-lawsuit-case-documents/