Balance of Power

The success of the system of the United States government hinges on a unique balance of power between the various branches of government. It is this delicate balance which is being called into question with the court order that came down from the Pennsylvania Supreme Court. Is there really anything to be concerned about?

While some may debate if the 2011 congressional map technically violated any law, it is clear the legislature ignored all neutral redistricting standards when creating the map. They pushed the bounds of what courts might allow in drawing districts, even in the absence of any specific law. Regardless of the decision of the Pennsylvania Supreme Court, the 2011 Congressional map was not representative of good governance.

Leaving behind the merits of the decision, the attention has turned to the process by which the matter will be resolved. This is not the first time courts found Pennsylvania made a legal error in drawing a congressional map. Most recently, in Vieth v. Pennsylvania, the 2002 congressional map was found to violate the law and require a re-draw. Comparing Vieth with the current court case brings to light some interesting differences.

The Opinion

How are new maps created?

The point of contention:

It is how the new maps are to be created which touches on the core of the concern being raised. Does the difference in the wording between the two cases mean there was a different intent?

Did the Pennsylvania Supreme Court in 2018 intend to create a new process for the General Assembly to follow in approving a remedial congressional map (different than the legislative process which created the original map)? If so, is it within their authority to change this process? If it was not the Courts intent to reinvent the legislative approval process, then is the ambiguity of the language sufficient cause for another court to intervene?

On the surface, it might not seem like a big difference until one considers the final decision-maker in the process. The plain language of the Court Order removes the final decision from a two-thirds majority of each body of the General Assembly (33 in the Senate and 134 in the House) and instead places it in the hands of one person — the Governor. If the Court truly intended to shift who decides on the final remedy presented to the court, it sets a new precedent not only for redistricting cases but one that might be used in any legislative bill which the court overturns.

The Majority Opinion on page 132 clarified the wording used in the court order when they referenced the action of the General Assembly and Legislature as enacting legislation:

“we requested that these sister branches enact legislation regarding a new districting plan, providing a deadline to do so approximately three weeks from the date of our Order. Indeed, if the legislature and executive timely enact a remedial plan and submit it to our Court, our role in this matter concludes, unless and until the constitutionality of the new plan is challenged.”

From this statement, it appears like their intent was to not change the legislative process. But this clarification came merely two days before the deadline for the General Assembly to submit a new congressional map. A lack of clear direction on this point at the outset created needless confusion within a tight time-frame.

Might the legislature have assumed the Court did not intend to change the legislative process and attempted to enact a plan following the standard legislative process in the 21-day window of time? Certainly. But they did not.

Instead we have three branches who each are working to protect and maximize their constitutional powers. When each branch claims the same authority, who will decide which branch has the rightful, constitutional claim to the authority in question? It is currently a question without an answer.

How are new maps finally approved?

When are new maps used?

Timing in the case

Comparing the timelines of each case, the 2017 case took longer to reach oral arguments (39 more days). This created a more compressed timetable in which to respond to the court opinion before the election calendar deadline.

If the 2017 timeline matched the 2002 court timeline, oral arguments would have been December 11, 2017 (60 days from the time the case entered the Supreme Court jurisdiction on October 11, 2017). There would have been a decision — both opinion and court order — by January 10, 2018. This would have given 30 days for the legislature to enact new maps before the first day to circulate petitions.

A significant difference in the 2017 case, which led to the longer timeline, was the decision by the Pennsylvania Supreme Court to give the Commonwealth Court to up 53 days to “create an evidentiary record”.

In the past, the Courts have sometimes complained about the tight timeline imposed on them because of legislative decisions. This time, we have an interesting role reversal. It is decisions by the Court which created tight legislative deadlines.

What has happened in other states?

The 1961 Mississippi congressional maps went under litigation for at least 12 years. After multiple failures of the legislature to draw maps acceptable to not only the courts but the Department of Justice, the court said in Connor v. Finch (1977):

“In the wake of a legislature’s failure constitutionally to reconcile these conflicting state and federal goals, however, a federal court is left with the unwelcome obligation of performing in the legislature’s stead, while lacking the political authoritativeness that the legislature can bring to the task.”

This case was cited in the recent Texas redistricting litigation (Perez v. Abbott), which began in May 9, 2011. Texas requires the redistricting plans be finalized by October 1, 2011, except the plans under litigation had not been cleared by the Department of Justice by this date. This litigation is ongoing and has resulted in maps used in elections that were created first by the courts and then by the legislature.

In New York, congressional maps are prepared by the redistricting commission and then approved by the governor and legislature. New maps were approved by the legislature in January 2011, but vetoed by the governor. With an impasse between the three branches and the state losing two congressional districts, it was a necessity that new maps be put forward before the March 20, 2012 election deadline. In Favors v. Cuomo, the court concluded they must begin drawing the maps but added:

Thus, should the New York State Legislature and Governor reach agreement on a redistricting plan, this court will defer to that enactment in considering the need for interim measures while New York seeks preclearance from the Department of Justice. In short, neither today’s ruling nor any future adoption of a court-drawn redistricting map precludes the enactment and implementation of a state drawn plan.

So after a combined failure of the redistricting commission, legislature, and governor to enact new congressional maps after the census, the courts did it for them. It appears like New York decided to let the court drawn maps remain in effect for the duration of the next 10 years.

Connecticut found itself in a similar situation. They missed the first two deadlines. The Connecticut Supreme Court then granted an extension to permit approval of new congressional districts following the normal legislative process. When this third deadline was missed, the courts drew the maps.

Georgia met the 2002 redistricting deadline, but found the maps challenged. In Larios v. Cox (2004), the state legislative districts were found unconstitutional on February 10, 2004. The state had until March 1, 2004 to adopted new state legislative maps following their normal legislative process. If they failed to do so, they gave the plaintiffs the option of requesting the court draw temporary maps, noting it would be a temporary map:

If new state legislative plans have not been adopted by March 1, 2004, or if the Attorney General indicates that preclearance will not be completed in time for candidate qualifications, the plaintiffs may petition this court to draw an interim plan for use in the upcoming election cycle. See Reynolds, 377 U.S. at 585-87, 84 S.Ct. at 1393-94 (approving the district court’s decision to first give legislature opportunity to adopt plan, and then, when legislature failed to act effectively in remedying constitutional deficiencies, to implement interim court-ordered plan).

The legislature failed to meet the deadline, court drawn maps were used in the 2004 election, and the legislature adjusted the maps prior to the 2006 elections, which withstood subsequent challenge.

In North Carolina, the legislature was given from July 31, 2017 until September 1, 2017 to enact a new plan once their original plan was found to be unconstitutional. When certain districts in the revised plans were found to still be unconstitutional, the court redrew them. This decision is under review by the US Supreme Court.

Conclusion

In the redistricting cases from other states, the order and opinion were simultaneously released and allowed for at least 21 days to provide a remedy. It appears unusual to release an opinion only 2 days before the map deadline. But as was pointed out, the Pennsylvania Supreme Court anticipated this concern by providing the standards for drawing the maps in their court order.

The sampling of cases is by no means comprehensive. But it shows a definite trend of courts permitting the map drawers an opportunity to follow their normal legislative process to provide a remedy. It certainly appears uncommon for a court, in declaring a map unconstitutional, to outline a different process for legislatures to follow in approving new congressional maps.

While it was apparently not the intent of the Court to create an alternative approval process, taking the language of the court order at face value created, at a minimum, doubt as to the meaning. If the court order had kept with the Vieth language of requiring the General Assembly to enact new maps by February 15, 2018, then the path forward would have been clearer.

Will another Court view the implications of the wording of the court order significant enough to adjudicate? Or will higher courts consider a matter like this one for the states to resolve on their own?