HARRISBURG, Pa. — Pennsylvania’s top Republican lawmakers asked the U.S. Supreme Court on Thursday to stop an order by the state’s highest court in a gerrymandering case brought by Democrats that threw out the boundaries of its 18 congressional districts and ordered them redrawn within three weeks.
Republicans who control Pennsylvania’s Legislature wrote that state Supreme Court justices unconstitutionally usurped the authority of lawmakers to create congressional districts and they asked the nation’s high court to put the decision on hold while it considers their claims.
The 22-page argument acknowledged that “judicial activism” by a state supreme court is ordinarily beyond the U.S. Supreme Court’s purview. But, it said, “the question of what does and does not constitute a ‘legislative function’ under the Elections Clause is a question of federal, not state, law, and this Court is the arbiter of that distinction.”
Justice Samuel Alito, who handles emergency appeals from Pennsylvania, could ask the registered Democratic voters on the other side of the case to respond. Alito could act on his own, though the full court generally gets involved in cases involving elections. An order could come in a matter of days, although there is no deadline for the justices to act.
Pennsylvania’s congressional districts are criticized as among the nation’s most gerrymandered. Its case is happening amid a national tide of gerrymandering cases from various states, including some already under consideration by the U.S. Supreme Court.
Election law scholars call the Republicans’ request for the U.S. Supreme Court’s intervention a long shot.
They say they know of no other state court decision throwing out a congressional map because of partisan gerrymandering, and the nation’s high court has never struck down an electoral map as a partisan gerrymander.
On Monday, Pennsylvania’s Democratic-controlled Supreme Court granted a major victory to the Democratic voters who had contended that the congressional districts — drawn by Republicans who controlled the state Legislature and governor’s office in 2011 — were unconstitutionally gerrymandered to benefit Republicans.
The court gave lawmakers and Democratic Gov. Tom Wolf until Feb. 15 to submit a new map, or the justices will pick one.
Lawyers for the Democrats said Thursday that Republicans had made the opposite argument — that a judicial decision on congressional districts should be left to state courts — when they asked the U.S. Supreme Court in October to halt a separate gerrymandering case that was rejected earlier this month in Philadelphia’s federal court.
“You shouldn’t be able to argue both sides of the issue,” said Rick Hasen, a professor at the University of California, Irvine, who studies elections law. “That said, the Supreme Court can do whatever it wants.”
Also Thursday, Pennsylvania’s high court ruled 4-3 to reject a request by Republicans to put their Monday decision on hold. In court papers arguing against that Republican effort, lawyers for the Democratic voters called it a “fanciful” idea that the U.S. Supreme Court would intervene.
In arguing for the U.S. Supreme Court to intervene, Republicans also cited the court’s rulings that stopped a recount ordered by the Florida Supreme Court following the 2000 presidential election between Republican George W. Bush and Democrat Al Gore.
Pennsylvania’s map of badly contorted congressional districts had been used in three general elections going back to 2012. Critics say it was instrumental in helping Republicans maintain a large advantage in Pennsylvania’s congressional delegation — 13 Republicans to five Democrats — in a state where registered Democratic voters outnumber Republicans by a ratio of 5 to 4.
Redrawing Pennsylvania’s congressional districts has implications for GOP control of Congress, since only Texas, California and Florida send more Republicans to the U.S. House than Pennsylvania.
It also has immediate implications for the 2018 election.
The deadline to file paperwork to run in Pennsylvania’s primaries is March 6, and primary fields could be jam-packed, driven by Democrats’ anti-Trump fervor and a rush to fill the most open seats in Pennsylvania in decades. Some of the 60-plus people who are planning to run for Congress — including 14 incumbents — could find their homes drawn into new districts.
Associated Press writer Mark Sherman in Washington, D.C., contributed to this report.