There’s pretty much one thing giving the Trump resistance hope these days – November 6th. That's the day America goes back to the polls to vote for every member of the House of Representatives and one-third of our Senators. We don’t get to vote President Trump out of office until 2020, but this fall, we can make his job significantly harder by putting the control of one or both chambers of Congress into the hands of Democrats.
Yesterday, the Pennsylvania Supreme Court gave a big boost to that effort by ruling the state's congressional map was unconstitutionally gerrymandered. Better yet, the ruling should be final and unreviewable by the U.S. Supreme Court.
This was one of the most closely watched gerrymandering cases in the country. In every election since the state map was redrawn by Republicans in 2011, Republicans have won the same 13 of the state's 18 congressional districts , despite Pennsylvania voting for President Obama in 2012 by over 5 percent and only barely favoring President Trump in 2016 by less than 1 percent.
The basic argument in the case is this: a state that is so evenly split (if not slightly favoring Democrats) can only have a congressional delegation so strongly Republican if the districts were gerrymandered in a way to intentionally diminish Democratic voices. Yesterday, the Pennsylvania Supreme Court agreed, ordering the legislature to re-draw the districts in a fair manner by February 15th. If the Republican legislature can't come up with a solution that the Democratic governor will sign into law, the court, which is controlled by Democrats, will re-draw the map by February 19th. However a new map comes into existence, the court's order was clear that the new districts will be in place for the state's May 15th primary this year.
What makes this case so important is that it was decided by a state supreme court on the basis of state constitutional law. Why's this important? Because when a state supreme court makes a decision on the basis of its own state's law, the U.S. Supreme Court doesn't review the case. It's as if a different country's court system decided a case under that country's law. The U.S. Supreme Court would have no say. The Pennsylvania Supreme Court made this clear yesterday saying explicitly that it reached its conclusion on the "sole basis" of the state constitution.
People who follow this issue may be asking themselves, "Didn't the Supreme Court just put on hold a lower court case that struck down North Carolina's districts as unconstitutionally gerrymandered?" That is exactly right – just last week, the Supreme Court stayed that case, meaning the state can likely continue with its gerrymandered districts that favor Republicans during this election cycle while the U.S. Supreme Court considers the gerrymandering case already before it. The North Carolina case and the case already before the Supreme Court are entirely different than the Pennsylvania case. Those cases were decided in federal court and the claim before the court was that the gerrymandered districts violated the United States Constitution. A case in federal court decided under federal law can be appealed to the Supreme Court; a case in state court decided under state law cannot.
Why was one case brought in federal court and the other in state court? That's entirely up to the plaintiffs, who can choose which court to bring the case and under which law. In North Carolina, the plaintiffs may have decided that they would get a favorable (or merely better) judge or judges in federal court than in state court. In contrast, in Pennsylvania, there is a Democratic-controlled Supreme Court, so the plaintiffs probably felt they'd do better in state court.
Yesterday's decision also shouldn't be confused with a case working its way through the Pennsylvania federal courts that was decided two weeks ago that rejected the gerrymandering claim. That case – based on a claim that the state's Congressional districts violate the federal constitution – is completely independent of the state case and has no bearing on what the state Supreme Court did yesterday.
But just because yesterday's case shouldn't have any route to the U.S. Supreme Court doesn't mean the lawyers for the Republicans won't try. They may ask the U.S. Supreme Court to review the case on the basis that the U.S. Constitution requires that "The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof." The argument goes that this provision requires the legislature of each state to determine the map, not the court, and therefore the U.S. Supreme Court should review the case.
However, despite the connection between this clause of the Constitution and Bush v. Gore, this is a massive long-shot. State courts routinely review state maps for constitutionality under their own constitutions. The U.S. Supreme Court stepping in to prevent the Pennsylvania Supreme Court from doing its basic job of enforcing the state constitution would be an egregious overstepping of the federal court's role. Even though the U.S. Supreme Court is controlled by Republicans who seem partisan at times in favor of Republican-drawn maps, I wouldn't count on it.
Which means that, come November, the Pennsylvania map should be much more favorable to Democrats. By some estimates, it could mean that Democrats will pick up 4 or 5 seats in Pennsylvania, and that would be in a normal year. Given the Democratic wave we're seeing in special elections in the age of Trump, after yesterday's decision, Pennsylvania could give Democrats even more than that, putting the resistance much closer to its goal of Democratic control.