Today the Pennsylvania Supreme Court heard oral argument in the case arguing that Pennsylvania’s congressional districts violate the state Constitution.
Ordinarily a ruling on state constitutional grounds cannot be appealed to the U.S. Supreme Court, because there are no federal issues involved, but state Republicans are hinting at a SCOTUS appeal if they lose:
Drew Crompton, a lawyer for Senate President Pro Tempore Joseph Scarnati (R), hinted that Republicans were considering how to appeal to the U.S. Supreme Court should the Pennsylvania high court rule against them. He added that the League of Women Voters was using the lawsuit as a means to get more Democrats in Congress.
“If they create new law and new policy, then we’re just going to see what they do and what the remedy is and then decide whether or not we go to the U.S. Supreme Court,” Crompton told reporters. “Regardless of the plaintiffs trying to say that this is all state Supreme Court law and state constitutional, in the world that we live in, the federal law and the state law are intertwined. There’s no getting around that. And we should highlight the fact that these are congressional issues, so federal issues. I think we have a right to an appeal to the U.S. Supreme Court, I hope it doesn’t come to that.”
R. Stanton Jones, a lawyer for the plaintiffs, said such an appeal to the U.S. Supreme Court was “absolutely not available,” because the congressional map was only being challenged under the state constitution.
I’m trying to think of what the federal argument could be, and the only thing I can see at this point is an argument 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 [corrected] done well in recent years (think of the Arizona redistricting case), but perhaps that’s what the Republicans have in mind. Shades of Bush v. Gore….