The following is a guest post from the great Jim Gardner:
On January 22, the Pennsylvania Supreme Court issued a brief order invalidating Pennsylvania’s 2011 congressional districting plan on the ground that it violated state constitutional prohibitions on partisan gerrymandering. On Wednesday, the court released the full opinions in the case, League of Women Voters v. Pennsylvania. The Court’s 4-1-2 opinion invalidating the districting plan under the Pennsylvania Constitution’s “Free and Equal Elections” Clause is highly unusual, and represents a potentially significant development in gerrymandering jurisprudence.
The decision’s significance is three-fold. Most concretely, the decision marks a significant change of direction for the Pennsylvania Supreme Court, a court not previously known for its attachment to a generous account of state constitutional rights. Second and more speculatively, the ruling might be a harbinger of a new willingness on the part of state courts to occupy the jurisprudential vacuum left by the long failure of federal constitutional law to control, or even to moderate, the increasingly routine practice of partisan gerrymandering. Third, again speculatively, the ruling could conceivably be the first step in the emergence of a state-level consensus on partisan gerrymandering claims that could in turn influence the substantive content of federal constitutional law.
The Decision. Prior to this decision, there was no reason to expect the Pennsylvania Supreme Court to respond positively to the plaintiffs’ claims. Until the last year, when lower federal courts in several states invalidated districting plans as unconstitutional partisan gerrymanders, it had long been understood that a partisan gerrymandering claim under the U.S. Constitution was futile. Claims under state constitutions thus appeared more promising. Unlike the federal Constitution, which says almost nothing about democratic processes, every state constitution contains numerous provisions that define and regulate democratic procedures, including the drawing of election districts. State constitutions also often contain explicit individual rights, including an express right to vote; and because of their jurisprudential independence from federal law, state constitutions are free to provide greater protection for individual rights than does the federal Constitution. Thus, many state supreme courts have interpreted their state constitutions to provide higher levels of protection for rights against unreasonable search and seizure, for example, or the right of criminal defendants to counsel, or even the right to free speech itself.
Nevertheless, most state courts have been very reluctant to construe state constitutional rights to vote, or to “self-government,” or to “free” or “fair” elections to extend further than their federal counterparts, a practice known as “lockstep” interpretation. In this regard, the Pennsylvania Supreme Court has a long history of timidity. In a 1981 case, the court expressly held that “the federal constitutional requirement of equal protection . . . is incorporated as a matter of state constitutional law in” provisions of the state constitution requiring compactness, contiguity, and population equality in redistricting, thereby committing the court to follow federal gerrymandering jurisprudence. And in a 2002 case, Erfer v. Commonwealth, the court expressly adopted as a matter of state constitutional law the toothless federal Bandemerstandard for adjudicating partisan gerrymandering. Thus, there was no reason to expect the court to go out on a limb by departing in the slightest from the ineffectual approach marked out by the U.S. Supreme Court.
The court’s decision is thus quite surprising. In a move of unusual boldness, the court distinguished Erfer (not very persuasively, in my view), but for good measure openly repudiated it to the extent it could be read to commit the court to a narrow view of the protections afforded to Pennsylvania voters under the state constitution. Instead, the court undertook a fairly involved analysis of the genesis of the Free and Equal Elections Clause, finding it rooted in a long-standing commitment to universal suffrage and a desire to end early practices of vote dilution.
At the same time, the court did not break much new jurisprudential ground. It did not, for example, deduce from the language and history of the Free and Equal Elections Clause any new or uniquely Pennsylvania standard for identifying when partisan gerrymandering crosses the line from permissible to unconstitutional. Nor did it choose to adopt any of the new standards lately proposed in federal litigation, such as the “efficiency gap” measurement. Instead, it held only that constitutional suspicion is raised when the traditional redistricting principles of equal population, compactness, contiguity, and respect for the integrity of local government boundaries are subordinated to other considerations — essentially the same place where the U.S. Supreme Court has repeatedly ended up. Where the Pennsylvania court entered new territory is in its willingness, upon applying that standard, to find in the facts the degree of subordination of traditional districting principles necessary to trigger the constitutional prohibition.
Federalism implications. This interplay of state and federal constitutional law necessarily implicates issues of federalism. In our system, it is expected that the state and national governments will contend for ascendency in politically salient policy domains. Where the two levels of government agree on the best course, then there is no need to expect state pushback against federal policies imposed with preemptive effect. But where states disagree with national policy — for example, regarding gay marriage, medical marijuana, or immigration — state pushback is to be expected, and state courts sometimes play a significant role in advancing state interests in such disputes. Similarly, where the national government has not effectively occupied a policy domain, states sometimes act, singly or in groups, to occupy the vacant domain with policies of their own design. For example, nearly universal state adoption of the Uniform Commercial Code has effectively pushed the federal government out of the business of regulating many aspects of commercial relations.
The decision in League of Women Voters bears the hallmarks of this approach. A court that had been relatively content to follow, with approval, the federal approach to redistricting now finds itself sitting in a state poisoned by a toxic and unpopular gerrymander, with federal law showing itself increasingly unable to provide any recourse whatsoever, even against the most egregiously partisan abuses of the redistricting process. The Pennsylvania decision thus looks very much like either a kind of pushback against federal leadership now reluctantly acknowledged to be misguided; or a move to occupy a policy space now understood to have been left vacant by what amounts to federal inaction.
Implications for federal gerrymandering jurisprudence. This term, the U.S. Supreme Court will have the opportunity to take the bull by the horns and issue a decisive ruling identifying once and for all the line between acceptable and unconstitutional manipulation of district lines. If it does so, then the Pennsylvania Supreme Court’s decision in League of Women Voters may quickly become irrelevant. If, however, the Court issues yet another splintered, indecisive decision, League of Women Voters could in the long run exercise some influence on federal constitutional law regardless of what the U.S. Supreme Court thinks or does. This is because the Supreme Court’s constitutional jurisprudence often treats with great respect constitutional principles shown to be the subject of subnational consensus. In some instances, the showing of such a consensus among the states has influenced the Court to adopt the state-level standard; this has been the case, for example, with the adoption of the exclusionary rule and the Court’s eventual recognition of the protected status of same-sex relationships. The emergence of a state-level consensus concerning the permissible limits of partisan gerrymandering might thus ultimately persuade the Court, as Justice Kennedy signaled in Vieth, to adopt as a matter of federal constitutional a standard developed at the state level.
In any case, these developments in Pennsylvania will only increase the drama of the long-awaited intervention by the Supreme Court later this Term in the field of partisan gerrymandering.