After waiting, and waiting, and waiting, the United States Supreme Court finally answered the question whether it would heed Pennsylvania Republicans’ calls to put on hold the Pennsylvania Supreme Court’s order redrawing the state’s congressional district lines to cure a partisan gerrymander. The answer was no, with no explanation. And in that silence the Court dodged a question it has refused to wade into since the disputed 2000 presidential election culminating in the Court’s controversial Bush v. Gore case.
The U.S. Supreme Court is hearing two redistricting cases this term, Gill v. Whitford from Wisconsin and Benisek v. Lamone from Maryland, raising the question whether courts have the capacity to determine if a partisan gerrymander violates one or more provisions of the United States Constitution. The conventional wisdom is that the Court is likely to be closely divided, and the case will likely turn on the views of Justice Anthony Kennedy, who has long agonized and punted over whether, and if so how, Court should police the drawing of legislative or congressional district lines to help one party stay in power.
The Pennsylvania case was different. The Pennsylvania supreme court decided that the congressional district lines, which unquestionably were drawn in contorted ways to help Republicans capture more seats than they would have under a fair plan, violated provisions of the state Constitution. The Pennsylvania high court then, with the assistance of noted redistricting expert and Stanford law professor Nate Persily, issued a much more competitive congressional map which could end up aiding Democrats in their national effort to take back majority control of the United States House of Representatives in the 2018 midterm elections.
Usually state court decisions decided under state constitutional provisions are not the United States Supreme Court’s business because they do not raise any federal constitutional or statutory issues appropriate for Supreme Court review. But Republican legislative leaders tried to make this into a federal issue by arguing that the state court’s order exceeded its power to set the rules for congressional elections. The Elections Clause in Article I of the Constitution gives state legislatures the power to draw district lines, subject to any rules Congress might set to override the states’ regulations.
The Elections Clause argument was indeed a longshot, as it has long been conceded that voter or governor approval of legislative district maps does not violate the clause. Indeed, in the most recent Supreme Court case touching on the area, 2015’s Arizona State Legislature v. Arizona Independent Redistricting Commission, the Court held that the Elections Clause was not violated when Arizona voters took away the power of the Arizona legislature to draw district lines, handing that power instead to an independent commission. The Court held that “[n]othing in that Clause instructs, nor has this Court ever held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution.” That would seem to settle the argument over the Pennsylvania Supreme Court’s decision, which rested on the Pennsylvania constitution.
Arizona State Legislature was a 5-4 opinion, with Chief Justice Roberts writing an originalist and textualist dissent disputing the meaning of the term “Legislature” in this context. The argument echoed the kind of arguments Justice Antonin Scalia had pushed on the Supreme Court for many years, and ran parallel to the argument of Chief Justice Rehnquist, Justice Scalia, and Justice Thomas in a concurring opinion in the Bush v. Gore case ending the 2000 election.
The litigation over the disputed Florida election was tortured, but in Bush v. Gore the Court considered only a piece of it: whether the statewide recount of “overvoted” ballots in the Florida election ordered by Florida’s Supreme Court violated the federal Constitution. At the time of the argument, Republican George W. Bush and Democrat Al Gore were only hundreds of votes apart out of millions of votes cast in Florida, and whoever won Florida’s electoral vote would become President. Bush, slightly ahead, argued that the counting needed to stop. As in the Pennsylvania case, Bush was arguing that a state supreme court ruling decided under the state’s constitution and state statutes violated the federal Constitution.
The Supreme Court held (on a 7-2 vote) that the Florida procedures for the recount violated the Equal Protection Clause and (on a 5-4 vote) that the appropriate remedy was to order an end to the recount rather than order a new recount under proper procedures. But the Rehnquist-Scalia-Thomas concurring opinion offered a different, more controversial, path to Bush’s victory. It argued that the state supreme court order usurped the power of the state legislature found in Article II of the Constitution to choose the rules for picking state electors.
The Article II argument in the Bush v. Gore concurrence neatly parallels the Article I argument in the new Pennsylvania case and in the Arizona State Legislature case. Indeed, the Republicans cited Chief Justice Rehnquist’s Bush v. Gore concurrence in their brief.
But now, 18 years after Bush v. Gore, the case remains radioactive. The Court did not cite it in its Arizona State Legislature case, and indeed the only time the case has been cited at all in a Supreme Court opinion was in a solo Justice Thomas dissent in a 2013 case.
And this, perhaps, explains the long delay in the Court’s decision to decline to hear the Pennsylvania case without any noted dissent. Under cases like Arizona State Legislature, the challengers’ argument was a loser. To argue that the Court should hear the case would not only get the Supreme Court in the business of regularly policing all state redistricting cases where a state court would strike a congressional districting case as violating the state constitution. It would also open up these Bush v. Gore wounds. Maybe one or more Justices was pondering raising the issue, perhaps in a dissent to the denial of a stay, only to abandon it upon further reflection.
This reticence inured to the benefit of Democrats and opponents of partisan gerrymandering in the Pennsylvania case. But in the longer run the issue is far from over. Chief Justice Roberts was pretty adamant in the Arizona State Legislature dissent, and if there is a retirement of Justice Kennedy or one of the Court’s liberals in the near future, it would not be a surprise to see this issue come back. And the kinds of arguments long made by Justice Scalia about how to read the Constitution could gain a new, more conservative Court majority’s favor.