[EL] Pa Supreme Court invalidates US House district boundaries, orders new districts in time for 2018

[Justin Levitt]

To Rick's point about the longshot theory:  the Elections Clause says 
that state legislatures have the power to set the rules for 
congressional elections, subject to congressional override.

In 2015, in the Arizona case, several scholars joined me in arguing 
<https://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/BriefsV4/13-1314_amicus_appellee_scholars.authcheckdam.pdf> 
that Congress _has_ in fact created such an override, in 2 USC 2a(c), 
allowing each state to decide for itself how to draw congressional 
lines.  The brief also noted that relying on the statute to decide the 
case would avoid a host of thorny questions in the clause itself, which 
no party sought to take literally (and indeed, if the literal grant to 
state legislatures impliedly precludes state court action, it's 
difficult to know why the literal grant to congress wouldn't also 
impliedly preclude _federal_ court action).

The Court didn't end up deciding the Arizona case on the statutory 
avoidance theory, but this may be another reason to think that a cert. 
grant here (unlike most of the other redistricting cases coming up to 
the Court, this is not a direct appeal, and would require a cert. grant) 
is exceedingly unlikely.

-- 
Justin Levitt
Professor of Law
Associate Dean for Research
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA  90015
213-736-7417
ssrn.com/author=698321
@_justinlevitt_

On 1/22/2018 12:17 PM, Rick Hasen wrote:
>
> My thoughts:
>
> *Pennsylvania Supreme Court Strikes Congressional Districts on State 
> Law Grounds; And There’s a Longshot Theory to Get SCOTUS Review 
> <http://electionlawblog.org/?p=97047>*
>
> Posted on January 22, 2018 12:13 pm 
> <http://electionlawblog.org/?p=97047> by *Rick Hasen* 
> <http://electionlawblog.org/?author=3>
>
> Today the Pennsylvania Supreme Court on state law grounds held 
> <http://www.pacourts.us/assets/files/setting-6015/file-6740.pdf?cb=b74d61> the 
> state’s congressional districting violated the state constitution. It 
> ordered the state legislature to submit a plan with compact and 
> contiguous districts.  If it can’t get a plan signed by the 
> (Democratic) governor, the Pa courts will draw the maps.  (Two 
> Justices dissented 
> <http://www.pacourts.us/assets/opinions/Supreme/out/Dissenting%20Statement%20%20GrantedJurisdiction%20Retained%20%2010339890932033722.pdf>.)
>
> This case is separate from a federal constitutional case (Agre v. Wolf 
> <https://www.brennancenter.org/legal-work/agre-v-wolf>) that is on its 
> way to SCOTUS. That case may be mooted by today’s state ruling.
>
> I leave to others whether the Republican legislature and Democratic 
> governor would be able to agree on a plan.
>
> But Republicans have already said 
> <https://twitter.com/lawrencehurley/status/955525472254877698> they 
> will appeal today’s ruling to the U.S. Supreme Court. At first blush, 
> it looks like there would be no basis, as this case is under the Pa. 
> Constitution, and the state supreme court is the final arbiter of what 
> that means. However, as I’ve noted 
> <http://electionlawblog.org/?p=96968>, the state legislature may argue 
> that Article I vests in the state /legislature/, and not the state 
> /courts/, the power to set the rules for congressional elections 
> (subject to congressional override). These kinds of arguments have not 
> done well in recent years (think of the Arizona redistricting case 
> <http://www.scotusblog.com/case-files/cases/arizona-state-legislature-v-arizona-independent-redistricting-commission/>), 
> but perhaps that’s what the Republicans have in mind. Shades of /Bush 
> v. Gore. /The argument is a long shot but not an impossible one.
>
> Share 
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D97047&title=Pennsylvania%20Supreme%20Court%20Strikes%20Congressional%20Districts%20on%20State%20Law%20Grounds%3B%20And%20There%E2%80%99s%20a%20Longshot%20Theory%20to%20Get%20SCOTUS%20Review>
>
> Posted in redistricting <http://electionlawblog.org/?cat=6>, Supreme 
> Court <http://electionlawblog.org/?cat=29>
>
> -- 
>
> Rick Hasen
>
> Chancellor's Professor of Law and Political Science
>
> UC Irvine School of Law
>
> 401 E. Peltason Dr., Suite 1000
>
> Irvine, CA 92697-8000
>
> 949.824.3072 - office
>
> rhasen at law.uci.edu <mailto:rhasen at law.uci.edu>
>
> http://www.law.uci.edu/faculty/full-time/hasen/
>
> http://electionlawblog.org <http://electionlawblog.org/>
>
> *From:*Law-election 
> [mailto:law-election-bounces at department-lists.uci.edu] *On Behalf Of 
> *greenbergk at gtlaw.com
> *Sent:* Monday, January 22, 2018 11:30 AM
> *To:* law-election at uci.edu
> *Subject:* [EL] Pa Supreme Court invalidates US House district 
> boundaries, orders new districts in time for 2018
>
> The majority opinion is attached (if it can get through) as press 
> coverage has been very light.
>
> Note this is under the Pennsylvania Constitution.   The federal case 
> (now likely moot) was decided against the plaintiffs last week.
>
> Kevin
>
> *From:*Law-election 
> [mailto:law-election-bounces at department-lists.uci.edu] *On Behalf Of 
> *Richard Winger
> *Sent:* Monday, January 22, 2018 2:14 PM
> *To:* Election Law Listserv
> *Subject:* [EL] Pa Supreme Court invalidates US House district 
> boundaries, orders new districts in time for 2018
>
> http://ballot-access.org/2018/01/22/pennsylvania-supreme-court-strikes-down-u-s-house-district-boundaries-orders-new-districts-in-time-for-2018/ 
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__ballot-2Daccess.org_2018_01_22_pennsylvania-2Dsupreme-2Dcourt-2Dstrikes-2Ddown-2Du-2Ds-2Dhouse-2Ddistrict-2Dboundaries-2Dorders-2Dnew-2Ddistricts-2Din-2Dtime-2Dfor-2D2018_&d=DwMCaQ&c=2s2mvbfY0UoSKkl6_Ol9wg&r=RKJ_pThjMyN_xzS53wJy8AHaUXwt6NdBkZ_r4PPJGs0&m=1jvF8-va175mpDVnMOsTgTmvSqRERuG2sVXQria0dJk&s=h-OKeJpiZI3D2E9AVJRW3qpCBia7YdKX265AdAMGumU&e=>
>
> Richard Winger 415-922-9779 PO Box 470296, San Francisco Ca 94147
>
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