In case that could affect 2018 elections, gerrymandering suit can proceed, Pa. high court rules

In a case that could force the redrawing of congressional maps before the 2018 elections, the Pennsylvania Supreme Court Thursday ordered the Commonwealth Court to decide a gerrymandering lawsuit by the end of the year.

"We will have our day in court, and we will get a decision and a resolution of this matter in time for the 2018 election," said Mimi McKenzie, the legal director of Philadelphia-based Public Interest Law Center, which represents the League of Women Voters of Pennsylvania in the case.

If the districts are, in fact, redrawn before next year's midterm elections, the result could have national implications. New districts could give Democrats a boost in competitive, Republican-held districts just outside Philadelphia as they push to take control of the U.S. House.

"It's something that has broad national implications," said Michael Li, senior redistrict counsel for the Brennan Center for Justice at New York University.

The high court's 4-3 vote overturned a decision by Commonwealth Court Judge Dan Pelligrini, who last month ordered a stay in the league's suit pending a U.S. Supreme Court ruling in a similar case out of Wisconsin.

But the league asked the state high court to fast-track the case. In agreeing to do so Thursday, the court employed a power it rarely used. "They reserve it for cases that are of great public importance," McKenzie said. "This is exactly the kind of case that's meant for the Supreme Court to exercise extraordinary jurisdiction."

Experts view Pennsylvania as one of the nation's most gerrymandered states, with congressional and legislative boundaries drawn to partisan advantage. While Pennsylvania's voters are fairly evenly split between the parties, Republicans have 13 of the state's 18 seats in the U.S. House of Representatives. Tests suggest the map is intentionally designed to favor Republicans.

A lawyer representing the state's General Assembly and its Republican leadership, who are defendants in the lawsuit, did not immediately respond to a request for comment Thursday. The lawmakers had sought the stay that was overturned.

A spokesman for Democratic Gov. Wolf,  named in the lawsuit, said the governor "supports reforms that would remove partisanship and special interests from the drawing of districts."

If the case results in a call for new districts, the legislature and governor could be ordered to draw them up quickly. That would allow public officials to consider "legitimate" political considerations, Li said, such as which towns should be grouped together.

But that also might prove a difficult task in Harrisburg, where partisan divisions between the Republican legislature and Democratic governor have hampered even basic governance. One of the courts could also appoint an independent special master to draw up new districts, as has happened in North Carolina, Li said.

"If these districts are unconstitutional, if they do unfairly treat voters, then voters have already voted in three elections under unconstitutional maps and it wouldn't be fair to have them vote under a fourth election," he said.

Chief Justice Thomas Saylor and Justices Max Baer, and Sallie Updyke Mundy dissented with Thursday's order, which requires a Commonwealth Court judge to be assigned to hear the case and render a decision by Dec. 31. The Supreme Court will then review the case, McKenzie said.

"Regardless of when this action is heard or who hears it, the congressional map – which has been in effect for three congressional elections – will be upheld," said Steve Miskin, a spokesman for House Speaker Mike Turzai (R.,Allegheny).  "Republicans and Democrats in the General Assembly who voted for this map stand behind its constitutionality."

Lawyers challenging the state's maps want to present evidence at trial on who drew them and what criteria were used. But lawmakers so far have refused to provide that information, McKenzie said.

Even without that, McKenzie said, "there are a bunch of different ways you can show that these maps are gerrymandered to an extreme." Similar to the Whitford case from Wisconsin, the league's lawsuit uses the "efficiency gap" — a measure developed in recent years to identify heavily gerrymandered political maps.

And beyond statistics, "you can start with the most basic evidence — you just look at these shapes," McKenzie said. "It's hard to imagine that happened by chance."

Staff writer Jonathan Tamari contributed to this article.