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Commonwealth Court finds no 'judicially manageable' standards in Pennsylvania redistricting case

[JURIST] A judge on Pennsylvania's Commonwealth Court [official website] on Friday ruled [opinion, PDF] that those challenging the state's 2011 congressional map in League of Women Voters v. The Commonwealth of Pennsylvania [docket] failed to provide a sufficient standard for determining whether a redistricting plan is unconstitutional or merely political.

Judge P. Kevin Brobson [official profile] issued the court's assessment of the record evidence, testimony and expert opinion presented during a five day trial in early December. Brobson noted that, although "[a] lot can be said about the 2011 Plan, much of which is unflattering and yet justified," the legislature was within its rights to consider partisan advantage as part of its redistricting process. The court found all of the challengers' expert witnesses to be credible, but that "their collective testimony ... has limited utility" as all their analyses showed was that there was a substantial "partisan skew in favor of Republican candidates." In the court's estimation, none of these experts "opined as to where on their relative scales of partisanship the line is between a constitutionally partisan map and an unconstitutionally partisan districting plan. This is the point that has bedeviled courts throughout history."

Brobson reiterated the significant challenge faced by those seeking to set aside the map:

"In challenging the constitutionality of the 2011 Plan, it is Petitioners' burden of establishing not that a better or fairer plan can be drawn, but rather that the 2011 Plan fails to meet constitutional requirements ... Petitioners, in order to prevail, must articulate a judicially manageable standard by which a court can determine that partisanship cross the line into an unconstitutional infringement on Petitioners' free speech and associational rights.
Reviewing the evidence in considerable detail, the court determined that "Petitioners have not presented a judicially manageable standard."

As Brobson noted in his findings of fact, the litigation presents substantial logistical challenges, as state and federal legal timelines for 2018 congressional races begin as early as February. Nonetheless, Brobson found that "[t]hrough a combination of internal administrative adjustments and court-ordered changes, it would be possible to hold the primary election on the scheduled May 15, 2018 date even if a new congressional districting plan is not put into place" early in the process, and that "it would also be possible to postpone the 2018 primary election ... to a date in the summer[.]"

The Commonwealth Court acts as both an intermediate appellate court and a court of first instance in cases brought by or against the Commonwealth of Pennsylvania. In this case, the Commonwealth Court was ordered [JURIST report] by the state's Supreme Court to conduct appropriate hearings and to file its " its findings of fact and conclusions of law no later than December 31, 2017." The Commonwealth Court had previously put proceedings in League of Women Voters on hold pending the US Supreme Court's decision in Gill v. Whitford [SCOTUSblog backgrounder], a Wisconsin gerrymandering case making similar claims under federal law. The Pennsylvania Supreme Court found that the case "involves issues of immediate public importance," and ordered the Commonwealth Court to take sufficient evidence to allow the Supreme Court to rule on the petition's merits.

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