Republicans suing over Pennsylvania’s new congressional map on Monday asked the Supreme Court to intervene with an emergency injunction that would bar the new map from taking effect. The request also asks the high court to consider forcing the Keystone State to hold their 2022 congressional elections at-large.
After a lengthy process and lawsuits brought in state courts, the previous map established by Pennsylvania’s GOP-controlled state legislature following the 2020 census was rejected by the Pennsylvania Supreme Court. The legislature’s plan left the commonwealth with nine district favoring Democrats and eight districts that favor Republicans.
In rejecting that plan, the state’s supreme court endorsed a map developed by a political science professor who was retained by the Democratic Party election lawyer Marc Elias. The new map resulted in a 10-7 split of congressional seats favoring Democrats.
Action in the case has picked up quickly.
On Feb. 9, 2022, the Pennsylvania Supreme Court suspended the previously-established primary calendar because the litigation was running up against deadlines established by the legislature for filing nominating petitions and obtaining signatures. The plaintiffs, which include several Republicans running for office in the state, originally sued in federal court two days later–asking for an injunction that would prohibit any change to the primary calendar and preemptively trying to enjoin the use of a judicially-created congressional map.
On Feb. 23, 2022, the GOP plan was scuttled entirely and the state’s highest court adopted the 10-7 Democratic Party map. This decision also sought to “modify” the state’s primary calendar and ordered election officials in the state to comply with the new dates.
That same day, the plaintiffs filed a renewed application specifically taking issue with the court-supplied primary calendar and the adoption of the 10-7 map, requesting temporary restraining orders.
On Feb. 25, 2022, a district court declined to issue those temporary restraining orders–even as the plaintiffs said they would “seek emergency relief from Justice Alito” if the federal court did not invalidate the Pennsylvania Supreme Court. Monday’s request to Justice Samuel Alito makes good on that threat.
“The applicants respectfully ask this Court to immediately enjoin the respondents from implementing the court-selected congressional map or departing from the General Primary Calendar enacted by the legislature,” the request says. “Relief is urgently needed because candidates are already campaigning for office under this unconstitutional map, and the statutory deadline for obtaining the needed signatures on nomination petitions in March 8, 2022.”
The filing argues a “belated” injunction would be of no use because if the current map is declared unconstitutional after candidates have already gathered signatures and run their campaigns based on the 10-7 map and court-modified schedule, that “will lead to chaos.”
The heart of the GOP’s complaint is that the 10-7 map is a “gerrymander” because it places “two Republican incumbents in the same congressional district, ensuring that at least one incumbent Republican will be eliminated from the state’s congressional delegation” whereas the legislature’s map “would have placed a Democratic and a Republican incumbent in a single competitive district.”
The GOP plaintiffs also say the 10-7 map “violates the equal-population rule” because it includes “congressional districts with two-person deviations” whereas the original map “limits population deviation among congressional districts to no more than one person, consistent with [the Supreme] Court’s equal-population rule.”
Accepting the 10-7 map, the GOP says, would run afoul of a section of the U.S. Constitution that says “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” Their argument has been interpreted by liberal legal voices as an argument that state legislatures have “a near-unlimited right to regulate federal elections.”
The 10-7 map supported by Democrats and adopted by the Pennsylvania Supreme Court was chosen after the GOP legislature’s map was vetoed by Pennsylvania Gov. Tom Wolf, a Democrat.
A 1932 Supreme Court case has long held that a governor’s veto can keep a congressional map from being validly “prescribed” by a state’s legislature, which the GOP plaintiffs acknowledge in their application.
“[T]he Supreme Court of Pennsylvania has removed any incentive for Governor Wolf to negotiate or compromise with the Republican-controlled legislature,” the filing says. “The governor knew from the outset that an impasse would lead to a court-selected map—and he knew that this process would be controlled by a state supreme court with a 5-2 Democratic majority. So Governor Wolf had every reason to veto the General Assembly’s map and throw the issue to the Democratic-controlled court, even though the General Assembly had offered him a map with a majority of Democratic-leaning districts.”
That said, the plaintiffs also don’t anticipate that Wolf and the GOP-controlled legislature are likely to come to any sort of agreement any time soon–which is essentially a replay of the facts surrounding that 1932 case out of Minnesota where the state’s Republicans sought to bulwark their party’s standing in Congress but found themselves vetoed by the Democratic-Farmer-Labor Party governor.
The solution the Supreme Court made for that controversial election is what the GOP plaintiffs counsel should happen in Pennsylvania this year: at-large elections for each of the 17 congressional races. That is, elections held statewide to pick 17 different members of Congress.
“An immediate injunction will also advance the public interest by forcing the General Assembly and Governor Wolf to negotiate a new congressional map against the backdrop of 2 U.S.C. § 2a(c)(5),” the GOP plaintiffs argue–citing the federal statute that requires at-large elections in the absence of proper redistricting. “By requiring at-large elections in the event of an impasse between the legislature and governor, 2 U.S.C. § 2a(c)(5) creates strong incentives for compromise among rival factions of state governments.”
But, the plaintiffs say, they don’t really want at-large elections. The application all-but admits Republicans want the prospect of at-large elections to undermine Wolf’s veto of the 9-8 map and “restore incentive” for agreement on a different map.
“The Court should immediately enforce the command of 2 U.S.C. § 2a(c)(5), which will restore the incentive the legislature and Governor Wolf to agree on a new map (and a modified primary schedule) and avoid the spectacle of at-large elections for the state’s 17 congressional representatives,” the filing argues.
[image via Chip Somedevilla/Getty Images]
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