The Pennsylvania Supreme Court ruled recently that the district maps for the U.S. House of Representatives violate the state constitution and ordered that they be redrawn immediately for the November midterms. The Republican leadership of the legislature is now refusing to comply with that order.





In its ruling, the court ordered the legislature to draw new congressional districts “composed of compact and contiguous territory,” stipulating the final map must not “divide any county, city, incorporated town, borough, township, or ward, except where necessary to ensure equality of population.” The judges gave lawmakers until February 9 to get the new districts drawn, and the governor until February 15 to give them his seal of approval. Should the state’s elected leaders fail to meet any of those deadlines, in the interest of ensuring that the 2018 elections aren’t fought on unconstitutional terrain, the judges ruled that “this Court shall proceed expeditiously to adopt a plan based on the evidentiary record developed in the Commonwealth Court.” Days after issuing this ruling, the court ordered the legislature to turn over data files “that contain the current boundaries of all Pennsylvania municipalities and precincts,” along with reports demonstrating that the legislature’s replacement maps meet all legally mandated requirements. On Wednesday, Pennsylvania Senate president pro tempore Joseph Scarnati formally refused to comply with that order. In a letter authored by his legal counsel, Scarnati informed the court that the “the General Assembly is currently advancing bills aimed at creating an alternative map,” but that he will “not be turning over any data identified in the Court’s Orders” — because, in his personal estimation, the court’s decision to strike down the original gerrymandered map “violates the U.S. Constitution Elections Clause.”

Scarnati asked Justice Samuel Alito, the justice in charge of handling requests from that judicial circuit, to intervene and stay the ruling of the state court. But this doesn’t involve federal law at all, it solely involves state law. They’re claiming that the court ruling violates the Elections Clause, which says, “The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

Their argument is that the Elections Clause vests control of elections solely to state legislatures, not state courts, and that the PA Supreme Court’s ruling is thus an “arrogation of legislative power by a state judicial branch.” You can read the petition for a stay here. But the actions of state legislatures has always been subject to the limitations found in that state’s constitution, just as it is at the federal level.

It’s like arguing that because the Constitution gives Congress alone the power to levy taxes, the courts would be violating legislative authority if it ruled that Congress could not impose a tax solely on black people and not on white people. That’s obviously false. The state constitution sets limits on what Congress can do and gives the courts the authority to interpret the Constitution. Asking the Supreme Court, a judicial body that does the exact same thing every day, to rule that this is a violation seems more than a bit farfetched.

It is also in conflict with the Supreme Court’s 2015 ruling in Arizona State Legislature v. Arizona Independent Redistricting Commission. In that case, voters approved a referendum that created an independent redistricting commission and the legislature filed suit, saying that the Elections Clause vested that power solely with them. The Supreme Court rejected that argument, ruling that the redistricting power must be “performed in accordance with the State’s prescriptions for lawmaking.” Many of those prescriptions, of course, are found in the state constitution.

But Alito did not reject the request immediately, he ordered the plaintiffs in the case to respond with briefs on the matter before a decision is made. And he was in dissent on that case. Perhaps Alito will do the right thing and deny the request soon, but he is far more partisan than, say, Chief Justice Roberts. We’ll see how this ends up, hopefully soon.