A New Approach to an Old Problem: Partisan Gerrymandering in Pennsylvania

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.


Re-Coloring Justice: Segregation in the Jury System

In 1875, African Americans were given the right to serve as jurors. Now, nearly 150 years later, people of color are still grossly underrepresented on jury panels across the country. In 2012, almost every criminal trial in Houston, Alabama (a county composed of nearly 30% African Americans) was heard by an all-white jury. How did this disparity between the ideal — a diverse, qualified jury — and the reality begin?

The story starts with a man named James Batson, a Kentuckian accused of burglary in 1986. While the case, the crime, and even the man himself were unremarkable, the proceedings of Batson’s trial have revolutionized the way juries are created. During Batson’s voir dire, (jury selection process) all four potential African American jurors were struck from service. Batson, an African American man, was tried and convicted by an all-white jury. Resentful of the seemingly racialized treatment his jury had received, Batson appealed the decision under the 6th and 14th Amendments. Batson argued that, because the jury was not drawn from an accurate cross-section of the community, the conviction violated his right to equal protection under the law. The Supreme Court agreed. In a 7-2 decision, the Court declared that the striking of potential jurors based solely on race was unconstitutional.

Batson v. Kentucky was hailed as a landmark ruling protecting the sanctity and impartiality of the justice system from the scorn of segregation. But the truth is more complex. Only twenty-six years after Batson, North Carolina prosecutors were still striking African American jurors twice as often as their white counterparts.

In retrospect, this sharp disparity between the law and its effects isn’t surprising. While Batson initially played an integral role in alerting judges to racialized jury selection, the holding itself is riddled with loopholes. The Batson ruling applies to the pre-trial process of voir dire, during which attorneys from both the defense and prosecution evaluate potential jurors for biases and competence. After this questioning session, attorneys can dismiss jurors for personal relationships with the defendant, financial interests, or other types of bias. These dismissals, called “for-cause” challenges, lay the groundwork for an impartial jury. After both sides have used their for-cause challenges, however, each is issued a certain number of peremptory challenges as well. Peremptory challenges, which have been an element of the US court system since its inception, allow attorneys to strike jurors without having to issue a reason. These are the kind of strikes that the prosecutor in the Batson case — and prosecutors across the country — used to eliminate African Americans from the jury before 1986. Enthusiasts of the peremptory strike system note that, if both prosecution and defense have a hand in shaping their ideal jury, both are more likely to accept that jury’s eventual ruling. Skeptics, however, question whether the system — without the accountability of giving a reason for dismissal — is ripe for racialized exploitation. The Batson ruling was an attempt to quell these criticisms, but its shaky structure hasn’t made judicial discrimination any harder. After the Supreme Court ruling, attorneys facing a “Batson objection” for racial discrimination in jury selection simply had to provide separate, non-racial reasons for striking jurors. And they did.

The failure of the Batson ruling to accomplish its goal of equitable, diverse juries begins with its ambiguity. The law reads that an attorney (usually a defense attorney) alleging racial discrimination with a Batson objection must rely on “suspicious questions or statements” made by opposing counsel to prove intent. This is an incredibly high bar to meet. Even if the prosecuting attorney were deliberately striking all African American jurors, finding and eliciting racialized statements from their voir dire session would be nearly impossible. After such statements are offered, the prosecution still has a chance to provide counter-evidence during rebuttal. Faced with an objection, the opposing attorney may offer race-neutral reasons for excluding certain jurors. By law, these reasons need not be “persuasive” or even “plausible.” They merely need to be “valid” at face value. This low bar, according to an Illinois Court of Appeals judge, has turned Batson objections into a “legal charade,” with attorneys concocting all sorts of race-neutral reasons to successfully strike an African American juror. If these excuses can be proven true from the juror’s answers during voir dire, a judge must accept them as race-neutral, however ridiculous they may seem.

There is a myriad of evidence confirming that prosecutors exploit the peremptory strike system to disproportionately exclude African Americans jurors. The Equal Justice Initiative, an Alabama-based law firm providing pro bono representation to clients on death row, spent two years reporting on the use of peremptory strikes in eight different Southern states. The report found frequent and pervasive use of racially-motivated strikes, particularly in serious criminal and capital cases. In each case, “non-racial” reasons were used by prosecutors to justify the strikes. Such reasons varied from a juror’s “dyed hair” to their “low intelligence”. In Jefferson Parish, Louisiana, African American jurors were struck three times as often as white jurors, and prosecutors were using 83% of their peremptory strikes to exclude black jurors. The consequences of these exclusions are rife. Relative to diverse juries, racially homogenous juries — particularly all-white — deliberate for far less time per case and convict far more frequently. In a ten-year survey of Florida jurisdictions, all-white juries were found to be much more likely to convict black defendants than white defendants. When just one African American juror was included, however, the conviction rates for black and white defendants became nearly identical. Racially diverse juries are more precise and deliberative. How, then, do we codify diversity into law?

Legal luminaries spanning the spectrum have proffered Batson reforms, from small language changes to eliminating peremptory strikes entirely. Some attorneys have suggested flipping peremptory strikes on their head, allowing peremptory inclusions as well as exclusions. Under this proposal, each counsel would be allowed to include a certain number of jurors who are exempt from challenges. This would invariably create a messier, longer voir dire, with attorneys disputing both challenges and inclusions. Other reformers have argued for using racial quotas based on locality demographic data. While such quotas might improve diversity, they would undoubtedly complicate finding jurors and result in considerable administrative backlog. Alternatively, Justice Thurgood Marshall proposed an end to all peremptory strikes. Because peremptory strikes are so deeply interred in American jurisprudence, however, this proposal seems ultimately impractical. A Northwestern law professor recently proposed a creative proposal for a “blind” voir dire process, in which carefully-designed surveys written by prosecution and defense automatically strike biased jurors based on quantitative answers rather than attorney preference. This proposal seems promising and merits further consideration.

Ultimately, racialized jury selection is an issue that runs far deeper than the letter of the law. Implicit bias and tacit toleration of discrimination are stubborn realities that color not only our judicial system but all the ways we think and act. Unconsciously prejudicial behavior is not a matter we can legislate away. For now, though, improving Batson and the legitimacy of our courts are certainly ways to start.


Cameron Beach is a first-year Trinity student from Chicago, Illinois. She plans to study Political Science, Economics and Education. Cameron is a U.S. Law columnist.