Opinion: What if Pa. redistricting reform doesn’t get done in 2020?

A recent column by members of Governor Tom Wolf’s Redistricting Reform Commission urged reform to the 2020 redistricting process. The commission deserves commendation for its work.

The commission and the citizens’ coalition seeking redistricting reform have several strategies for changing the process. One would require an amendment to the state Constitution, but Republican legislative leaders have already voiced strong opposition to this. Other proposals not requiring an amendment also face obstacles. Failure to enact these changes is quite possible. This means that the existing procedures that produced past gerrymanders would determine the redrawing of state legislative 2021 district lines.

There are two types of gerrymanders. One gives an unfair advantage to one political party, increasing the number of districts it otherwise would win. The other gives incumbents, regardless of party, an advantage over challengers. Both weaken democracy. They reduce the competitiveness of the general election, and increase the ability of ideological voters in low turnout primaries to determine a party’s nominee. To protect incumbents, they necessarily result in non-contiguous, bizarrely shaped districts which split counties, cities and townships. This fractures communities of interest, makes challenges to incumbents less likely, and erodes citizens’ ability to hold elected representatives accountable.

The Pennsylvania Constitution establishes a five-member Reapportionment Commission with the responsibility to draw state legislative district boundaries. The commission, comprised of House and Senate party leaders or their designees, is supposed to pick the fifth member to chair the Commission. But historically they cannot agree on one, so the Supreme Court usually appoints a neutral, non-partisan law school dean. With two members each, neither party can enact a partisan gerrymander. They can only agree to protect incumbents, regardless of how contorted the resulting district lines may be. The chair goes along, and the result is an incumbent gerrymander. If the 2021 state legislative reapportionment produces another gerrymander, it is not likely to be a partisan one, but rather an equally unacceptable incumbent gerrymander.

How can this outcome be avoided? The citizens’ coalition proposes to amend the state constitution to replace the Reapportionment Commission with an independent citizens’ commission. This is basically what the Governor’s Commission recommends. Unfortunately, since time is so short and the amendment process so vulnerable to delay, there is a real possibility this plan cannot be enacted in time for the 2021 reapportionment.

However, the Pennsylvania Supreme Court has the power to review both Congressional and State legislative reapportionments to determine if they comply with our Constitution. In fact, it has already done so. In its opinion overturning the 2011 Republican partisan Congressional gerrymander, the court found that plan violated both the state Constitution’s guarantee of free and fair elections and its criteria for redistricting. Interpreting the state Constitution in this decision, it held that plans must “be composed of compact and contiguous territory, as nearly equal in population as practicable, and which do not divide any county, city, incorporated town, borough, township, or ward except where necessary ...” Since the composition of the Court is unlikely to change much since this 5-2 decision, it will almost certainly apply the same reasoning in reviewing the Reapportionment Commission’s plan for state legislative districts.

Consequently, if proposed reforms are not enacted, the path to stopping another gerrymander and creating fair districts is clear. The citizens’ coalition needs to challenge any gerrymandered plan from the Commission before the Pennsylvania Supreme Court. The court will likely apply the same mandated criteria it applied to the 2011 partisan gerrymander of the U.S. House reapportionment. Plans are already underway to do precisely this, to appeal any incumbent gerrymander from the Commission’s final plan to the court, including examples of fair plans others have developed. The Reapportionment Commission, knowing this strategy will be pursued, may even draw a less gerrymandered plan than they otherwise would have. Regardless, this strategy will enable the Pennsylvania Supreme Court to make sure state legislative districts are drawn fairly.