Commonwealth Court makes redistricting case recommendations to Pennsylvania Supreme Court

Commonwealth Court makes redistricting case recommendations to Pennsylvania Supreme Court

Author: Jason Gottesman/Monday, January 1, 2018/Categories: News and Views

Judge Kevin Brobson of Pennsylvania’s Commonwealth Court issued his findings of fact and conclusions of law in the League of Women Voters case where several groups challenged Pennsylvania’s Congressional Districts as unconstitutionally gerrymandered.


In so finding, Brobson stated that while Pennsylvania lawmakers did take partisanship into consideration in drawing Pennsylvania’s currently-in-force Congressional map—one that is generally considered to favor Republicans who currently hold a 13-5 advantage in Pennsylvania’s Congressional delegation—the group of petitioners failed to prove any constitutional violation or show that there is a judicially manageable standard for determining whether maps violate constitutional standards.


Beginning his conclusions, Brobson cited several US Supreme Court cases finding that consideration of partisanship is permissible in redrawing legislative districts, especially in the absence of a state specific statute or constitutional provision banning the practice as has been implemented in other states


“Congressional reapportionment is ‘the most political of legislative functions,’ and judicial intervention should be reserved only for the most egregious abuses of power conferred to the General Assembly,” he wrote quoting a US Supreme Court decision.


“The question presented in political gerrymandering cases is not whether the General Assembly, in drawing congressional districts, may make decisions that favor one political party or even a particular incumbent; rather, the question is how much partisan bias is too much.”


In further finding against the group of petitioners, Brobson noted their claims that the congressional districts violate Article One, sections seven and 20 of the Pennsylvania Constitution—provisions protecting freedom of speech and the right to petition government found to be more protective than their federal counterparts—do not hold weight or meet previously decided tests.


“What petitioners seek…is in essence a declaration, in the name of free speech and association, that under Article I, sections 7 and 20 of the Pennsylvania Constitution, Petitioners are entitled to a nonpartisan, neutral redistricting process free from any and all partisan considerations,” he wrote. “Such a right is not apparent in the Pennsylvania Constitution or in the history of gerrymandering decisions in Pennsylvania and throughout the country.”


He also stated that since the petitioners are able to continue to engage in the political process—including voting in ongoing congressional races—and failed to show that the General Assembly intended to retaliate against those trying to exercise their right to vote, there is no unconstitutional violation of free speech.


“Intent to favor one party’s candidates over another should not be conflated with motive to retaliate against voters for casting their votes for a particular candidate in a prior election,” Brobson wrote. “The fact that some Democrats voted in favor of the 2011 Plan further militates against a finding or conclusion that the General Assembly passed the 2011 Plan, in whole or in part, as a response to actual votes cast by Democrats in prior elections.”


As to the second count, that the maps violate the Equal Protection Clause of the Pennsylvania Constitution, Brobson noted that the petitioners failed to meet their burden to show that the political considerations showed intentional discrimination against an identifiable political group or that they have been shut out of the political process.


“There is no constitutional provision that creates a right in voters to their elected official of choice,” he said. “As a matter of law, an elected member of Congress represents his or her district in its entirety, even those within the district who do not share his or her views. This Court will not presume that members of Congress represent only a portion of their constituents simply because some constituents have different priorities and views on controversial issues.”


While Brobson recommended to the state Supreme Court that petitioners have failed to meet their burdens under a constitutional challenge, he did note have exclusively positive things to say about the nature of the maps.


“A lot can and has been said about the 2011 Plan, much of which is unflattering and yet justified,” he stated.


Brobson’s findings and recommendations now head to the Pennsylvania Supreme Court who, last Friday, scheduled a hearing in the case for Wednesday, January 17, at 9:30 a.m. in the Supreme Courtroom in Pennsylvania’s Capitol.