Summary: In light of recent Supreme Court decisions on partisan gerrymandering, the example set forth by the Pennsylvania Supreme Court provides a promising way to challenge gerrymandered redistricting plans.

As millions of Americans head to the polls, one of the most important choices on the ballot will be for congressional representatives.  But, for the millions of voters in Pennsylvania, there is something unique about this year. Following a February ruling from the state’s Supreme Court, the 2011 Congressional Redistricting Plan proposed by the state legislature was found to violate the state’s constitution. Instead of the so-called “2011 plan” or any other plan drawn up by the Harrisburg Legislature, the state’s voters will be using a map with a different author–the state’s Supreme Court.

In contrast to a similar challenge in Wisconsin, the decision in League of Women Voters vs. Commonwealth found the 2011 plan unconstitutional under the Pennsylvania Constitution, rather than the Equal Protection Clause and the First Amendment freedom of Association, as was done in the November 2016 Gill v. Whitford ruling.  In Gill v. Whitford, a panel of Federal District Court judges found that the partisan gerrymander of the state’s Assembly seats constituted a violation of the Equal Protection Clause of the Fourteenth Amendment.  Additionally, the panel concluded that the map created a geographic discrimination, because “diluting the weight of votes because of the place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race or economic status.”

However, upon appeal by the state of Wisconsin, the Supreme court avoided making a stand against Gerrymandering on the basis of a technicality. Currently, the motion to intervene filed by the Wisconsin State Assembly over Gill v. Whitford will be heard in district court in April 2019.  Likewise, upon appeal for a stay, the US Supreme Court denied to hear League of Women Voters v. Commonwealth, allowing the state Supreme Court’s ruling to hold.

Although the future of Wisconsin’s partisan gerrymandering map is disputed, the decision in League of Women Voters v. Commonwealth appears to have held.  Not only is it unique in that it is the only case in which a state Supreme Court has identified partisan gerrymandering, but it provides an example to other states’ attempts to use the courts to tackle unfair redistricting. Given that the federal court system has failed to consistently analyze partisan gerrymandering in a timely manner, other plaintiffs could benefit from following the League of Women Voters of Pennsylvania by using state constitutions to assess the constitutionality.

In their ruling, the Pennsylvania Supreme Court cited Article 1, Section 5 of the state constitution, which  guarantees that “elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” The Court, arguing that there was no comparable analog in the US Constitution, ensured that the state courts will retain jurisdiction on the issue.

But the question remains: would it be possible for other state courts to use similar clauses in their state constitutions? Obviously, what works for some states will not work for all.  But in Section 1 of Wisconsin’s Constitution, it stipulates that Assembly districts must be drawn “as compact as practicable.” But the word “practicable” leaves this clause to interpretation, and although modeling technology and data have improved over time, there is still no objective way to evaluate compactness in the state districts.  

However, it is estimated that 29 states have clauses in their constitutions that could lend themselves to similar legal battles as Pennsylvania’s.  Although there exist problems with state courts making partisan decisions—due to the politicization of many state courts—this does offer a promising approach to resolve cases of partisan gerrymandering in light of the historic action (or inaction) of the US Supreme Court on this issue.