Redistricting By State Supreme Courts

Last month, the Pennsylvania Supreme Court ruled the congressional district map drawn by that state’s legislature to be unconstitutional in the state, saying that in their legal view it essentially disenfranchised Democratic voters.

Very recently, after the state’s legislature and governor could not reach a new compromise, the court itself redrew the districts.

We must all remember that the US Constitution (Article I Section 4.1 states “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of chusing [sic] Senators” provides that VOTING is ALL state-based and controlled unless Congress passes laws overriding state law. As things now stand and until Congress intervenes, different states go about the voting process differently.

Republicans are now challenging the Pennsylvania Court’s map, going as far as to say that the court’s actions have triggered a constitutional crisis, though they have not made clear what they mean by that. President Trump has weighed in, tweeting that the US Supreme Court should intervene to overrule the State Supreme Court. It is unclear on what basis the US Supreme Court would have to hear the case and what authority they would have to overrule the Pennsylvania Supreme Court. Likely, there is neither basis nor authority to do so.

Since few well-educated citizens are also educated lawyers, this note is to help out with basically a pretty simple question.

While some of the legal issues might be complex, particularly if the federal government tries to get involved in the case, we should set aside the minutiae of the law for a minute and decide whether or not the Penn Supreme Court has done the right thing, even if under some imaginable circumstance, it might turn out to be illegal.

To me, the answer is clearly yes, though the Pennsylvania process was hardly without its flaws.

The Pennsylvania Supreme Court brought in an outside, independent expert to help redraw the map—Stanford  law professor Nathan Persily, who has assisted other judges redraw districting maps on multiple occasions.

Having elected officials draw maps that can determine the results of elections can be a clear conflict of interest, even if they are not drawing their own districts. State legislators often have ambitions of winning federal office and therefore need to stay in the good graces of their party (no matter what party that is).

In addition, judges should probably stay out of the drawing of legislative districts as much as possible, given that some judges may eventually attempt to run for other offices.

The best solution is to put as much power in the hands of independent experts as possible.

But since even independent experts obviously have differences of opinion and possibly significant partisan bias, the drawing of maps should be done by committees and with the aid of computers, which have no knowable ideology.

It is tempting to say that all maps should be drawn by computers, but no computer program can be perfect. Any real solution would have to incorporate both computers and human beings.

All in all, the Pennsylvania Supreme Court took a sensible and necessary step in the right direction.

But that step is not far enough.

All states should use a system in which committees of nonpartisan experts use the latest technology to draw rational maps that try to be fair to all.

And they should start tomorrow!



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