Applicants’ ostensible hook for federal intervention is an Elections Clause theory that this Court has squarely rejected in decisions dating back nearly a century. To accept Applicants’ theory, this Court would need to overrule no fewer than six of its precedents, all upholding the power of state courts to review and remedy unconstitutional congressional districting plans. In these circumstances, Applicants cannot seriously maintain that this Court will grant certiorari or reverse. Their stay applications are just a ploy to preserve a congressional map that violates Pennsylvania’s Constitution for one more election cycle.
This Court need not take our word for it. For months, Applicants in No. 17A795 (“Legislative Applicants”) have been telling federal courts in separate suits challenging Pennsylvania’s 2011 map that, under settled precedent, they must defer 2 to Pennsylvania state courts. They told this Court that federal courts would be “usurp[ing] the power of the Pennsylvania state courts” to review and remedy the map, and just last week they persuaded a federal court to grant a stay in deference to this state court action. Legislative Applicants cannot now obtain a stay of the state court’s judgment on the theory that state courts have no power in this realm.
The Court may rule on this stay request, and the North Carolina stay request, at any time. Maybe Monday? I expect there will be no stay granted in either case and that there will be dissents, but then again I did not expect Justice Alito to even ask for a response in the PA case given how longshot the argument is.
Latest twist in PA redistricting saga: top GOP state legislators are seeking the disqualification of state Supreme Court Justice David Wecht over public comments he's made on gerrymandering.
— Laura Olson (@lauraolson) February 2, 2018
Update: It looks like the recusal argument may be waived.