A NOVEL judicial decision in Pennsylvania has prompted a rather desperate request to the country's Supreme Court. The subject, gerrymandering, is an increasingly familiar one in America’s courts: a time-worn, now computer-weaponised ploy whereby political parties rig electoral maps to rope out the opposition. Republicans in Pennsylvania did a bang-up job of capitalising on their power after taking control of the legislature in 2010. Their creatively redrawn map delivered 13 of the state’s 18 seats in the House of Representatives to their party in 2012, 2014 and 2016—despite Republicans commanding only about half of the state-wide vote in each election.

On January 22nd Pennsylvania’s Supreme Court ruled that this gerrymander was unfair to voters (see article). The congressional map “clearly, plainly and palpably” violates the state constitution, the court decided in a 4-3 vote. Though the justices did not elaborate on this reasoning in the two-page order—an opinion, they say, is on its way—the decision seems to rest on the Pennsylvania constitution’s directive that elections must be "free and equal" and that "no power...shall at any time interfere to prevent the free exercise of the right of suffrage". These are provisions without peer in the federal constitution; the court emphasised that the state document was “the sole basis” for its decision. 

Normally, a state supreme court is the final arbiter of the meaning of its state law, including its constitution. So it wasn’t immediately clear on what basis Republican legislators in Pennsylvania would be able to seek relief from the federal Supreme Court in Washington, DC. But on January 25th, aggrieved Republicans lawmakers filed an emergency application doing just that. The plea puts the matter in rather dramatic terms. “[F]or the first time in United States history”, it reads, “a state court, in attempting to play the role of ‘lawmaker’, has invalidated a congressional districting plan without identifying a violation of the US constitution or a state constitutional or statutory provision providing specific redistricting criteria”. If the Pennsylvania court’s ruling is permitted to stand, Republicans argue, “[s]tate courts would be free to legislate an infinite number of requirements and impose them on state legislatures, thereby seizing control of elections to federal office”. 

This usurpation may violate Article I, section 4 of the federal constitution (the so-called “elections clause”), Republican legislators argue, which specifies that state legislatures are responsible for prescribing the “times, places and manner of holding elections for senators and representatives”. When a “state court’s purported interpretation is not interpretation at all, but rank legislation”, the justices of the federal Supreme Court are “both empowered and duty-bound to intervene”. The state court’s decision has “cast Pennsylvania’s congressional elections into chaos on the eve of the 2018 primary elections”, the application charges, “causing substantial injury to the public”. Rather than permit the state court to demand new maps by February 15th for the primary in May, the Supreme Court should “issue a stay to preserve Pennsylvania’s election integrity” and only consider sometime later on “when, if ever, a state judiciary may legislate congressional redistricting criteria”.  

This emergency application goes to Justice Samuel Alito, the member of the Supreme Court assigned to the third circuit encompassing Delaware, New Jersey and Pennsylvania. He will likely discuss the matter with his colleagues, who will decide quickly how to handle it. This is unusual territory, so there is no telling exactly what the justices may do. While most will probably reject the application as an inappropriate request to meddle in a state-law matter, some might be persuaded that the state court’s order sows confusion and “irreparable injury” to Pennsylvania’s federal elections by issuing an “eleventh-hour” requirement for a new map at a moment’s notice. But it would be an extraordinary reinterpretation of the elections clause to read it as precluding state judicial oversight of legislative redistricting. Such a move would denude state courts of the power to say what the law is within their borders.