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Hearing looms on Pennsylvania congressional redistricting issue

| Monday, March 5, 2018, 4:48 p.m.
Pennsylvania congressional map imposed by the state Supreme Court on Feb. 19, 2018, starting with the May primary elections.
State of Pennsylvania
Pennsylvania congressional map imposed by the state Supreme Court on Feb. 19, 2018, starting with the May primary elections.
2011 congressional map (drawn by the GOP-controlled General Assembly)
State of Pennsylvania
2011 congressional map (drawn by the GOP-controlled General Assembly)

The only certainty in the congressional redistricting case is that Republicans lose if they can't persuade a three-judge panel to grant a preliminary injunction, said Bruce Ledewitz, a Duquesne University law professor.

The federal judges are scheduled to hear arguments Friday in Harrisburg.

A preliminary injunction stops one side from taking an action while the other pursues its legal challenge. In this case, Republicans want to bar the administration of Gov. Tom Wolf from implementing a state Supreme Court ruling that overturned a 2011 congressional map for Pennsylvania drawn by GOP lawmakers.

Since there's little debate that map — considered one of the country's most gerrymandered — is unconstitutional, the only question seems to be whether it will be used one last time for the 2018 elections, Ledewitz said.

The filing period already has started for the May 15 primary election, so only a quick resolution will help Republicans, he said.

“A delay in this case decides it, as a practical matter …,” he said. “If they don't get the injunction, they lose.”

Filed by two Republican state senators and eight GOP congressmen representing Pennsylvania, the federal lawsuit seeks to throw out the congressional district map drawn by the Democratic majority on the state Supreme Court. The same majority ruled that the existing map, drawn by the General Assembly, violates the state constitution's guarantee of equal representation. The court gave lawmakers 24 days to draft a new map. When Wolf rejected the map, those justices created their own.

The lawsuit claims the elections clause of the U.S. Constitution gives the General Assembly the responsibility of drawing district boundaries, so the state Supreme Court's map is unconstitutional.

Responses filed by the League of Women Voters and Democratic state officials argue that Republicans are misreading that provision and that the federal court doesn't have jurisdiction over a state law dispute.

There's some merit to that argument, and it's possible the three-judge panel will throw out the challenge, Ledewitz said.

“A bad state court deciding a state law issue is not usually a federal matter,” he said.

A 2015 U.S. Supreme Court decision upheld an Arizona citizen initiative that stripped the legislature of its ability to draw congressional districts and gave that authority to an independent commission.

“I could certainly see a federal court saying that the Arizona decisions tells us the Supreme Court doesn't read the election clause literally,” said Arthur Hellman, a University of Pittsburgh law professor.

On the other hand, the initiative came from Arizona citizens, not a separate branch of government, so the judges could decide that in Pennsylvania's case there is a federal constitutional violation that gives them jurisdiction, he said.

If so, that raises an interesting point because of the special rules covering the three-judge panel.

If the panel decides it has jurisdiction and rules on the injunction, any appeal by either side would automatically go the U.S. Supreme Court, he said.

The justices wouldn't have their usual option of declining to take the case, Hellman said.

“They don't have to hear arguments, but they do have to decide the merits,” he said.

Following the initial state Supreme Court ruling that threw out the existing map and ordered the General Assembly to draw up a new one, House and Senate leaders asked the U.S. Supreme Court to stay that order.

Justice Samuel Alito denied that motion.

House and Senate leaders filed a new motion asking the high court to stay the state Supreme Courts order that Pennsylvania use the court's map in the 2018 elections.

Brian Bowling is a Tribune-Review staff writer. Reach him at 724-850-1218, or via Twitter @TribBrian.

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