No proof congressional map is unconstitutional, judge says
By MARC LEVY
Dec. 29, 2017
HARRISBURG, Pa. (AP) — Democratic voters suing to throw out the map of Pennsylvania's congressional districts as unconstitutionally gerrymandered haven't proven that it violates existing law by unfairly favoring Republican candidates, a judge said Friday.
Commonwealth Court Judge Kevin Brobson, a Republican, issued a 130-page report to the state Supreme Court by Friday's deadline, set by the Democratic-majority high court that ordered the lower court to fast-track hearings and sum up the evidence.
The justices quickly scheduled oral arguments to be held Jan. 17, setting the next stage for the politically-charged case.
In gerrymandering cases, the U.S. Supreme Court has never been able to provide a standard to judge when a legislative or congressional map is too gerrymandered to be constitutional, and Brobson — who oversaw five days of testimony earlier this month — chose not to create one.
In recommending that the high court uphold Pennsylvania's congressional map, Brobson said the plaintiffs had not spelled out a standard for a court to determine whether the 2011 map "crosses the line between permissible partisan considerations and unconstitutional partisan gerrymandering under the Pennsylvania Constitution."
Still, Brobson had choice words for Pennsylvania's map — which has become a national marvel for its badly contorted districts drawn by top Republican state lawmakers.
At one point, Brobson said, "a lot can and has been said about the 2011 plan, much of which is unflattering and yet justified." He also concluded that the Democratic voters challenging the map had plainly shown that the Legislature's Republican majority leaders used partisan considerations when they drew the plan in 2011, and that it favored Republicans in some of Pennsylvania's 18 congressional districts.
"The remaining question of law for the (Pennsylvania) Supreme Court is going to be whether the Legislature is able to do that consistent with the right to vote, which is a core freedom of speech," said David Gersch of the Arnold & Porter Kaye Scholer law firm in Washington, D.C., which is helping represent the plaintiffs.
The case comes as the U.S. Supreme Court considers a closely watched challenge to Wisconsin's state legislative districts and could establish national standards for gerrymandering cases.
The lawsuit, filed in June, was the first to challenge Pennsylvania's 6-year-old congressional map and called Pennsylvania's map one of the worst gerrymanders in the country.
Pennsylvania's 2011 map moved whole cities and counties into different districts and produced absurd district shapes that broke decades of precedent as Republicans sought to protect the delegation's majority in a state with more registered Democratic voters.
Republicans now fill 13 of Pennsylvania's 18 seats in the U.S. House, despite winning roughly half of the statewide congressional vote in the three ensuing congressional elections held after the map took effect.
The map was approved by the Republican-controlled Legislature — with the help of some Democrats — and signed by then-Gov. Tom Corbett, a Republican.
Partisanship is part of the process, Brobson wrote, and voters should have expected that Republicans would draw a map that favored their voters.
"It is a reasonably anticipated, if not expected, consequence of the political process," Brobson wrote.
Drew Crompton, a top aide to Republican Senate President Pro Tempore Joe Scarnati, one of the map's architects, said Brobson's conclusions were well-reasoned and diligent, and that his recommendations deserve a lot of deference from the state Supreme Court.
A separate lawsuit challenging Pennsylvania's congressional map is pending in federal court in Philadelphia after a three-judge panel there heard arguments this month.
Time is ticking, since candidates for the 2018 can start circulating petitions Feb. 13 to get on the primary ballot, with a deadline of March 6 to submit the petitions.
Pennsylvania's primary election is May 15, while a nationally watched special election in a southwestern Pennsylvania congressional district is being held March 13.