Let me offer the outset that I am not doubting the sincerity or well-intentioned motives of the justices on the court or those involved in drawing maps. Partisan fairness is, in my view, as legitimate a political criterion to use when thinking about how to draw maps as partisan-blind or neutral criteria.
But the Pennsylvania Supreme Court did not, in my view, act forthrightly in its opinion dictating criteria and its ultimate map. The criteria it enunciated–its three values of compactness, contiguity, and avoidance of dividing jurisdictions–were never really going to cure the problem it had identified.
It’s something like (ed: a metaphor sure to have its limitations!) a doctor diagnosing a patient with a mysterious disease and asking for ideas about how to treat the symptoms of the virus–a runny nose, a cough, a sore throat. When the ideas come in for a decongestant and lozenges, the doctor rejects them, saying, “I have my own decongestant and lozenges”–but one that also comes with blood transfusions. The blood transfusions might be useful, but it was hardly a part of the original proposal.
The Pennsylvania Supreme Court apparently did not want to include language like “seats-votes ratio” or “partisan fariness” into its construction of the commonwealth’s constitution. Perhaps it’s understandable–doing so would be quite controversial and perhaps even politically unpopular by all parties. It would have to articulate standards about how to achieve those results. It would need to spend more time explaining how it could go about achieving those ends, much less political actors in the state.
So, it didn’t include that language. But there is no doubt, from every commentator looking at the outcomes, that that is precisely what it did when drawing the new map. It consciously engaged in a partisan fairness inquiry of mapmaking, when that was not articulated expressly as one of the three criteria it asked the legislature to use in its new map, and when that was not expressly one of the criteria that it found required by the commonwealth’s constitution.