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Pennsylvania‘s current Republican gerrymander

SCOTUS Rejects GOP Effort to Preserve Pennsylvania’s Egregious Partisan Gerrymander for 2018

On Monday, Justice Samuel Alito rejected Pennsylvania Republicans’ last-ditch effort to preserve the partisan gerrymander of their state’s congressional map.

by MARK JOSEPH STERN

(Slate) – The justice’s decision effectively ensures that Pennsylvania’s 2018 congressional elections will be held under a much fairer map, giving Democrats an opportunity to win several more seats in the state. In fact, the dissolution of Pennsylvania’s gerrymander gives Democrats a significantly better shot at winning control of the House of Representatives in November.

SCOTUS intervention in the Pennsylvania redistricting litigation was always unlikely. When the Pennsylvania Supreme Court invalidated the current map on Jan. 22, it did so exclusively under the Pennsylvania Constitution. The U.S. Supreme Court cannot overrule a state supreme court on a question of state law; it may only step in when a state law or court order violates the federal Constitution. Republican legislative leaders had argued that the Pennsylvania Supreme Court’s decision ran afoul of the federal Constitution’s Elections Clause, which allows state legislatures to prescribe “the times, places and manner of holding [congressional] elections.” Legislators asserted that their state Supreme Court had unlawfully stripped them of their constitutional prerogative to draw congressional maps.

But this argument is plainly untenable for two reasons. First, the U.S. Supreme Court held in 2015 that the Elections Clause does not grant state legislatures exclusive redistricting power. Indeed, the court found that citizens could prohibit their state legislature from redistricting altogether and direct an independent commission to draw congressional maps instead. If a legislature can be deprived of all redistricting power, surely it can also be compelled to draw districts that comport with the state constitution.

Second, the GOP legislators’ position would bar courts from reviewing the legality of any congressional gerrymander. Under their argument, no court could strike down a gerrymander, partisan or otherwise, or draw remedial maps to remedy constitutional flaws. Courts are not legislatures, after all, so judges would have no authority to intercede in gerrymandering disputes. No justice, not even Clarence Thomas, has ever held that legislative redistricting is insulated from judicial review.

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