Supporters of a Pennsylvania Supreme Court ruling that would lead to new congressional maps — likely to the benefit of Democrats — for the 2018 elections urged the US Supreme Court on Friday to stay out of the state court matter.
Republican lawmakers and some Republican voters have asked the US Supreme Court to take the unusual step of putting the state high court's order on hold, and Justice Samuel Alito asked parties in the case to respond to the stay request by Friday afternoon. Alito denied the requests without comment Monday and without referring the requests to the full court.
"Pennsylvania’s Supreme Court has held that the 2011 map 'clearly, plainly and palpably' violates Pennsylvania’s Constitution," lawyers for the League of Women Voters wrote in opposing the stay request Friday. "It would be unprecedented for this Court to interfere with the state court’s determination about its own state's law."
On Jan. 22, the Pennsylvania Supreme Court issued a brief ruling that the congressional map violated the state's constitution in a case brought by the League and others arguing that it was an unconstitutional "partisan" gerrymander. Under the map, only five of the state's 18 congressional districts are represented by Democrats — despite the fact that registered Democrats outnumber Republicans in the swing state. That ruling was 5–2.
One of the justices in the majority, however, would have delayed the implementation of the ruling due to the closely approaching time for candidates to file to run for Congress in the state and potential confusion that could result. On a later 4–3 vote, reflecting that view, the state court denied a request to stay its ruling.
Republican lawmakers, however, also asked the US Supreme Court to put the ruling on hold, arguing that the ruling violates a federal constitutional provision known as the Elections Clause. As they detailed in their request, "The Constitution’s Elections Clause provides that '[t]he Times, Places and Manner' of congressional elections 'shall be prescribed in each State by the Legislature thereof' unless 'Congress' should 'make or alter such Regulations.'"
Normally, a state supreme court's ruling on state constitutional issues cannot be reviewed by the US Supreme Court. The Republican lawmakers — who are supported in their request by Republican voters in Pennsylvania and eight states and legislative leaders in a ninth state — argued that the US Supreme Court can and should step in because, they claimed, the Pennsylvania Supreme Court's actions went too far in light of the Elections Clause.
"This is not simply a question of a state supreme court interpreting its state constitution," the Republican lawmakers argued, "but a state supreme court usurping that state’s legislature’s authority expressly granted under [the Elections Clause." Specifically, the Republican lawmakers argued that the state high court justices were "legislat[ing] from the bench" in the ruling, that doing so violates the Elections Clause, and that "the question of what does and does not constitute a 'legislative function' under the Elections Clause is a question of federal, not state, law."
The lawmakers also relied heavily on a 2004 opinion from Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas disagreeing with the court's decision not to hear a case challenging a state court's ruling on a redistricting question. Referring to the three-justice dissent, the Pennsylvania lawmakers' lawyers wrote that "multiple Justices of this Court have previously suggested [this issue] is ripe and appropriate for resolution in this Court."
In Friday's responses, state executive branch officials urged the US Supreme Court to deny the stay request.
"[T]he Pennsylvania Supreme Court determined that partisan gerrymandering violates the state constitution, and ordered an appropriate remedy," lawyers for Democratic Gov. Thomas Wolf and other officials wrote. "That should be the end of this matter: This Court is not and should not be in the business of policing the correctness of state courts' interpretation of their own constitutions."
Even if the issue could be reviewed by the US Supreme Court, the Democratic executive branch officials argue that the Republican lawmakers' claim that the state high court improperly took on a legislative role is wrong. "The order below represents an ordinary exercise of the judicial review power, not a usurpation of legislative authority," they wrote.
The League of Women Voters' opposition to the stay request went further, arguing that the Republican lawmakers' would "have no chance of success on the merits" if the US Supreme Court were to hear the case.
"Their stay applications are just a ploy to preserve a congressional map that violates Pennsylvania’s Constitution for one more election cycle," the League's lawyers argued.
This post has been updated with Justice Samuel Alito's ruling to deny Republicans' request to put the Pennsylvania Supreme Court's order on hold.