Jurisprudence

Free and Equal

The Pennsylvania Supreme Court’s new map doesn’t just vanquish gerrymandering—it restores the state’s democracy.

Pennsylvania State capitol building.
The capitol in Harrisburg, Pennsylvania.
Thinkstock

How do you solve a problem like a partisan gerrymander? It’s not as easy as you might expect. Most Americans want “fair districts,” yet the meaning of that phrase has proved elusive. Few want representatives to choose their own voters. But how do mapmakers ensure voters have a real opportunity to choose their representatives?

On Monday, the Pennsylvania Supreme Court ventured an answer to this question, releasing a remedial map designed to undo the state’s Republican gerrymander in time for the 2018 midterms. Republicans in the state responded predictably, claiming the process was “rigged” to favor Democrats and renewing calls to impeach the court’s Democratic justices.
Some redistricting experts agreed the map was designed to help Democrats win more seats. The reality is more complicated.

Pennsylvania’s current gerrymander is a straightforward exercise in “packing and cracking,” a time-honored tool of partisan mapmakers. In 2010, Republican legislators drew a map that “packed” as many Democrats as possible into five districts. They then distributed the remaining Democrats throughout 13 Republican districts, “cracking” Democratic communities to dilute their vote. This process created notoriously dysmorphic districts, including the infamous “Goofy kicking Donald Duck.”

The new, nonpartisan Pennsylvania congressional map.
The new, nonpartisan Pennsylvania congressional map.
Pennsylvania Supreme Court

Despite a near-even split in votes for both parties, that gerrymandered map has meant that Pennsylvania consistently sends 13 Republicans and five Democrats to the U.S. House of Representatives. A group of voters sued, alleging that the map’s extreme partisan lean violated the state constitution. In January, the state Supreme Court agreed by a 5–2 vote, directing the legislature and governor to redraw the map. After a failed appeal to the U.S. Supreme Court, Republican leaders submitted yet another biased plan, which Democratic Gov. Tom Wolf rejected. The court then commissioned its own map from Stanford Law School professor Nathaniel Persily.

Upon first glance, it’s obvious Persily prioritized the Pennsylvania Supreme Court’s chief objective—the creation of “compact and contiguous” districts that divide as few “political subdivisions” as possible. The old map split 28 counties and carved up innumerable communities; Persily’s splits 13 counties, while generally keeping communities in the same district. His map is cleaner, tighter, and vastly more logical than the old one.

There are, however, indications that Persily may have considered more than compactness. The Cook Political Report’s Dave Wasserman suggested Persily made “conscious pro-Dem mapping choices” to comply with “partisan fairness”—that is, the theory that “parties should be entitled to the same proportion of seats as votes.” Nate Cohn, Matthew Bloch, and Kevin Quealy, who authored a thorough New York Times analysis, agreed with Wasserman, writing that Persily’s map “consistently makes subtle choices that suggest that partisan balance may have been an important consideration.”

It’s undeniable that Persily’s new map distributes voters more evenly, meaning Democrats and Republicans will probably win nine seats each under the plan, mirroring the aggregate vote in the perennial swing state. Either party could nab an extra seat in a wave election. Even so, it’s not clear that Wasserman, Cohn, Bloch, and Quealy are entirely correct about Persily’s motivations. The University of Florida’s Michael McDonald, who studies redistricting, pointed to a computer program designed to draw 500 maps that prioritize compactness and ignore partisanship. A majority of the plans it produced had a probable 9–9 split, just like Persily’s map.

Still, Real Clear Politics’ Sean Trende made a strong case that Persily did draw at least a handful of districts with the goal of making them more competitive. That raises a tricky question: Does Persily’s map constitute its own partisan gerrymander? And, more broadly, should courts ignore politics altogether when they’re fixing gerrymanders?

In Pennsylvania, the answer is likely no—for a very specific reason. The Pennsylvania Supreme Court may have emphasized compact districts, but its opinion dove much deeper into the state constitution’s guarantee of “free and equal elections.” Partisan gerrymandering, the court wrote, “dilutes the votes” of Pennsylvanians who affiliate with the Democratic Party. “It is axiomatic,” the court continued, “that a diluted vote is not an equal vote, as all voters do not have an equal opportunity to translate their votes into representation.” Thus, “each and every Pennsylvania voter must have the same free and equal opportunity to select his or her representatives.”

This theory of fair districts differs from those put forth in gerrymandering litigation elsewhere. Republican plaintiffs in Maryland relied on a theory of First Amendment retaliation, arguing that Democrats had punished them for expressing their support for the GOP. Democratic plaintiffs in Wisconsin deployed a similar argument under the U.S. Constitution’s Free Speech and Equal Protection clauses, asserting that Republicans had illegally discriminated against them on the basis of their political association. In both instances, the courts focused on what the U.S. Constitution prohibits, asking whether extremely gerrymandered maps run afoul of individual constitutional rights.

The Pennsylvania Supreme Court asked a different question, focusing on what its state constitution requires. It found that a “free and equal election” is one in which voters have an “equal opportunity” to “translate their votes into representation”—that is, to elect a congressional delegation that matches voters’ will. A certain amount of partisan balance is inherent to the court’s vision of “a healthy representative democracy.”

If Persily’s map did tweak a few district lines to create a 9–9 split, he was merely responding to the Pennsylvania Supreme Court’s directives. And those directives are perfectly reasonable. In its decision to rein in the state’s partisan gerrymander, the Pennsylvania Supreme Court didn’t call for total political neutrality. Rather, it appears to have favored the creation of competitive districts, ones that had a better chance of approximating the voters’ will. Persily’s map is not a Democratic gerrymander. It’s a bespoke attempt to repair Pennsylvania’s broken democracy.

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