Democrats are currently favored in three seats held by Pennsylvania Republicans in the U.S. House of Representatives, thanks in large part to a controversial and unprecedented decision by the Democrat-dominated Pennsylvania State Supreme Court earlier this year. In that decision, the Court rejected the state legislature’s 2011 redistricting of the state’s congressional districts completed after the 2010 census and draw the boundaries of those congressional district lines themselves.
All told, seven Republican-held seats in Pennsylvania are now on the Cook Political Report’s list of 99 competitive races: two are rated “likely Democratic,” one is rated “lean Democratic,” one is rated “Toss-Up,” one is rated “lean Republican, and two are rated “likely Republican.”
To get a sense of how significantly the Democrat-dominated Pennsylvania Supreme Court’s gerrymandering has hurt Republican chances in the Keystone State this fall, consider that on December 30, 2017, when the Real Clear Politics Average of Polls gave the Democrats a 12.9 point generic congressional ballot advantage, five points higher than the Democrats’ current 7.2 point generic congressional ballot advantage, the Cook Political Report listed 0nly six Republican-held seats in Pennsylvania on the list of 99 competitive House races.
Democrats were not favored in any of these six Republican-held seats. Five were rated “lean Republican,” and one was rated “likely Republican.”
The two Republican-held seats in Pennsylvania currently rated as “likely Democratic” by the Cook Political Report are the new 5th Congressional District, which was created from three other districts, the largest of which was the old 7th Congressional District, which is currently represented by Rep. Patrick Meehan (R-PA-07), and the 6th Congressional District, currently represented by Rep. Ryan Costello (R-PA-06), who is not running for re-election and is classified as “open.”
The one Republican-held seat in Pennsylvania currently rated as “lean Democratic” by the Cook Political Report is the new 7th Congressional District, currently “vacant.”
Republicans argue that the State Supreme Court’s actions to take over congressional redistricting were an unconstitutional usurpation of the state legislature’s authority, but when the U.S. Supreme Court chose not to hear their appeal in February, the Pennsylvania State Supreme Court-designed districts were set in stone for the 2018 elections.
“In a full majority opinion released Wednesday, the Pennsylvania Supreme Court found that the state’s congressional district map deprives voters’ [sic] of their right to “free and equal” elections as protected by the Pennsylvania Constitution,” WHYY reported in February:
“An election corrupted by extensive, sophisticated gerrymandering and partisan dilution of votes is not ‘free and equal,’” wrote Justice Debra McCloskey Todd. “In such circumstances, a ‘power, civil or military,’ to wit, the General Assembly, has in fact ‘interfere[d] to prevent the free exercise of the right of suffrage.’”
The opinion comes about two and a half weeks after the majority Democratic court struck down Pennsylvania’s map as an unconstitutional partisan gerrymander in a 5-2 party-line decision. The district boundary lines were drawn in 2011 during a process controlled by Republican lawmakers.
The court concluded that the map was designed to give the GOP an unfair partisan advantage over Democrats and ignores neutral redistricting criteria.
Going forward, the court requires lawmakers to create congressional districts that have equal population, are geographically compact and contiguous, and divide as few communities as possible.
After the “state legislature then drew a new map . . . Gov. Tom Wolf, a Democrat,” vetoed it, the New York Times reported, and the State Supreme Court took the unprecedented step of redrawing the congressional district boundaries itself.
It is those boundaries that will be used in November’s general election since the U.S. Supreme Court refused to consider an 11th-hour appeal by Pennsylvania’s Republican Party for a stay of the State Supreme Court’s decision, as the Times reported in March:
The Supreme Court rejected on Monday a second emergency application from Republican lawmakers in Pennsylvania seeking to overturn decisions from that state’s highest court, which had ruled that Pennsylvania’s congressional map had been warped by partisan gerrymandering and then imposed one of its own.
The ruling means a new map drawn by the Pennsylvania Supreme Court will very likely be in effect in this year’s elections, setting the stage for possible gains by Democrats. Under the current map, Republicans hold 12 seats while Democrats hold five and are expected to pick up another when the result of a special election last week is certified . . .
On matters of state law, the judgments of state supreme courts are typically final.
The majority opinion of the Pennsylvania State Supreme Court in the case League of Women Voters v. Wolf hung on the “Free and Equal Clause” of the Pennsylvania Constitution, Article 1, Section 5, which reads, “Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”
Writing for the majority, State Supreme Court Justice Todd wrote:
It is a core principle of our republican form of government “that the voters should choose their representatives, not the other way around.”
In this case, Petitioners allege that the Pennsylvania Congressional Redistricting Act of 2011 (the “2011 Plan”) does the latter, infringing upon that most central of democratic rights – the right to vote.Specifically, they contend that the 2011 Plan is an unconstitutional partisan gerrymander.
While federal courts have, to date, been unable to settle on a workable standard by which to assess such claims under the federal Constitution, we find no such barriers under our great Pennsylvania charter. The people of this Commonwealth should never lose sight of the fact that, in its protection of essential rights, our founding document is the ancestor, not the offspring, of the federal Constitution (emphasis added).
We conclude that, in this matter, it provides a constitutional standard, and remedy, even if the federal charter does not. Specifically, we hold that the 2011 Plan violates Article I, Section 5 –the Free and Equal Elections Clause – of the Pennsylvania Constitution.
Beginning with its first constitution in 1776, Pennsylvania has seen five separate Constitutions. It was not until the state adopted its fourth Constitution in 1874 that Pennsylvania adopted Article 1, Section 5, the “Free and Equal Clause” cited by the majority in the 2018 decision, which reads, “Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”
The most significant precedent on the constitutionality of the state legislature’s authority under Pennsylvania law came in the 1959 case Butcher v. Rice, where the Pennsylvania State Supreme Court ruled that the drawing of congressional district lines by the state legislature was not “judicially reviewable,” writing in its majority opinion:
The constitutional enjoinder on the General Assembly to divide the State into districts ‘as nearly equal in population as may be’, by the very elasticity of the phrase, does not admit of error judicially reviewable. And whether or when the General Assembly will carry out the duty imposed upon it by the Constitution of dividing the State into districts for the election of senators and representatives poses a non-justiciable question whereof equity will not take jurisdiction.
Here is a look at those three Republican-held districts in which Democrats are now favored:
Fifth Congressional District
“Attorney Mary Gay Scanlon won the Democratic primary for the district, fending off nine other candidates. She faces Republican Pearl Kim in the general election,” Ballotpedia reported:
A February Pennsylvania Supreme Court ruling creating new boundaries for the state’s congressional districts saw the new 5th District cobbled together from pieces of the old 1st, 2nd, and 7th districts. These districts were represented by Rep. Bob Brady (D), Rep. Dwight Evans (D), and Rep. Patrick Meehan (R), respectively. Brady and Meehan announced they would not seek re-election in 2018, and Evans ran for another term in the new District 3.
Hillary Clinton won the newly drawn District 5 by 28 percentage points in 2016. She won the old district by two points. Truthout said this was “the most dramatic shift of all 18 congressional districts caused by Pennsylvania’s redistricting.”
Sixth Congressional District
The old 6th Congressional District is currently represented by Rep. Ryan Costello (R-PA-06), who is not running for re-election. After the Pennsylvania Supreme Court gerrymandered the new districts to the advantage of Democrats, registration went from +0.6 percent Democrat advantage to +9.2 percent Democrat advantage.
Chrissy Houlahan is the Democratic candidate in the general election. Her Republican opponent is Greg McCaulley.
Seventh Congressional District
“Former Allentown Solicitor Susan Wild (D) and Olympic cyclist Marty Nothstein (R) are competing for the seat formerly held by moderate Republican leader Charlie Dent,” Ballotpedia reported:
Following a court-ordered redrawing of the Pennsylvania congressional map in February 2018, the new 7th district was made up of parts of Dent’s (R) old 15th district (71.6 percent), Matt Cartwright’s (D) old 17th district (24.8 percent), and Tom Marino’s (R) old 10th district (3.6 percent). It was based around Allentown, Pennsylvania.
The new 7th district voted for Hillary Clinton over Donald Trump in the 2016 presidential election by a 48.7 percent to 47.6 percent margin.
No incumbent filed to run in the new 7th district in 2018. Dent had announced his retirement in September, while Cartwright filed to run in the new 8th district and Marino filed to run in the new 12th district.
Dent resigned from Congress on May 12, setting up a special election for the old 15th district that would occur separately from the 7th district election.
The incumbent for the old 7th district was Patrick Meehan (R). His seat was based in the Philadelphia suburbs.
President Trump won the old 15th Congressional District, which comprises 71 percent of the new 7th Congressional District by 7.6 percent. In contrast, Hillary Clinton won the redrawn new 7th Congressional District by 1.1 percent.
2020
Though Pennsylvania Republicans have apparently given up on legal challenges to the State Supreme Court’s redistricting for the 2018 elections, the 2020 elections may be another matter entirely for reasons Lyle Deniston explained. “At the center of the new lawsuit . . . will be these words that have been in the federal Constitution’s Article I since 1789: ‘The times, places and manner of holding elections for Senators and Representatives shall be prescribed in each state by the Legislature thereof; but the Congress may at any time by law make or alter such regulations,’” Deniston wrote at the Constitution Center this year, when a 2018 legal challenge this election cycle was under consideration.
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