In 2012, Pennsylvania voters backed Barack Obama over Mitt Romney by a 5.4 percent margin — and Republicans won 13 of the state’s 18 congressional races. This did not happen because Obama won large numbers of ticket-splitting conservative voters, but rather, because Keystone State Republicans had drafted one of the most spectacularly biased congressional maps in a nation in full of them.
A little over a week ago, the Pennsylvania Supreme Court ruled that said map “clearly, plainly and palpably” violated the state constitution. Now, a leader of the state’s Republican Party is refusing to comply with a court order related to that ruling — on the grounds that his interpretation of Pennsylvania’s constitution overrides that of the state Supreme Court.
In its ruling, the court ordered the legislature to draw new congressional districts “composed of compact and contiguous territory,” stipulating the final map must not “divide any county, city, incorporated town, borough, township, or ward, except where necessary to ensure equality of population.” The judges gave lawmakers until February 9 to get the new districts drawn, and the governor until February 15 to give them his seal of approval.
Should the state’s elected leaders fail to meet any of those deadlines, in the interest of ensuring that the 2018 elections aren’t fought on unconstitutional terrain, the judges ruled that “this Court shall proceed expeditiously to adopt a plan based on the evidentiary record developed in the Commonwealth Court.”
Days after issuing this ruling, the court ordered the legislature to turn over data files “that contain the current boundaries of all Pennsylvania municipalities and precincts,” along with reports demonstrating that the legislature’s replacement maps meet all legally mandated requirements.
On Wednesday, Pennsylvania Senate president pro tempore Joseph Scarnati formally refused to comply with that order. In a letter authored by his legal counsel, Scarnati informed the court that the “the General Assembly is currently advancing bills aimed at creating an alternative map,” but that he will “not be turning over any data identified in the Court’s Orders” — because, in his personal estimation, the court’s decision to strike down the original gerrymandered map “violates the U.S. Constitution Elections Clause.”
So, this could be the start of a constitutional crisis in the Keystone State. Or, it could just be a stunt aimed at encouraging the conservative justices on the U.S. Supreme Court to block the Pennsylvania Supreme Court’s ruling.
Shortly after the latter’s decision came down, Pennsylvania Republicans asked Justice Samuel Alito, the archconservative who happens to be in charge of reviewing emergency appeals out of Pennsylvania, to stay the order. Considering that the decision concerned the state constitution (as opposed to the federal one) — and that the Pennsylvania GOP’s argument conflicts with a 2015 U.S. Supreme Court decision, and also Marbury v. Madison — Alito should have shot down that request immediately. Instead, he ordered voting-rights advocates to offer a rebuttal to Scarnati’s case.
The best-case scenario here is that the Supreme Court declines to issue a stay, Scarnati folds, and new maps are drawn. That way, there is no constitutional crisis in Pennsylvania, no Supreme Court ruling that makes Bush v. Gore look legally airtight and thoroughly nonpartisan, and Democrats will get to compete on a slightly less uneven playing field in November (since districts will be made up of “compact and contiguous territory,” the party with more evenly spaced voters will still enjoy a structural advantage).
But it’s also possible that we’re on the cusp of real crisis of judicial legitimacy — either in Pennsylvania, or in Washington.
