Breaking: Pennsylvania Republican Legislative Leaders Petition Justice Alito AGAIN to Block Pa Congressional Redistricting Plan Ordered by State Supreme Court

You can find the new petition here. The petition will go to Justice Alito, who can decide the matter himself or refer to the entire Court. Last time Justice Alito decided the matter himself, after asking for a response from the other side.

Like the last petition, this petition argues that the Pennsylvania Supreme Court, by holding that the existing maps violated the state Constitution, usurped the power to draw Congressional maps given to state legislatures (unless Congress overrides). As I recently explained;

Because this was a case decided under the state constitution by the state supreme court, the usual path for review of this case by the U.S. Supreme Court is limited. The only plausible argument I see is that the maps violate the Elections Clause of the Constitution, which vests in the state legislature the power to choose rules for congressional elections (unless Congress acts to preempt them).
The problem with this argument is that the Pa Republicans already went to the Supreme Court when the state supreme court announced a redistricting– and Republicans raised the very same argument. At the time it was raised, I called the argument a long shot, given a line of cases (most recently a 2015 case from Arizona) reading the word legislature much more broadly in the context of the elections clause. The emergency stay request went to Justice Alito, who denied it without even referring it to the Court. So he likely did not think much of it at the time.
Now it is quite possible that Pa. Republicans will go back to Justice Alito, arguing that things are even worse now that the state Supreme Court has adopted a map itself. That’s the job first and foremost for the legislature. But remember that the Pa. legislature did not even come up with an official passed plan for the state supreme court to reject. (A pair of legislative leaders had a plan, but it was not passed by the legislature.) This seems to give Pa. Republicans even less standing to complain about things. I expect something new filed with Justice Alito will get no further. (After all, we are even later into the election season.)



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