Berks Barrister Winter 2018 - 11

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Gerrymandering Cases in the Courts
Some citizens frustrated with partisan gridlock and unresponsive
legislators have taken their complaints to the courts. These cases
are based on a variety of constitutional concerns about the effect
gerrymandered districts have on voters and their ability to participate in
the democratic process. As of publication deadline, final orders on the
merits of these cases were entered in only Agre v. Wolf and Common
Cause v. Rucho. The below is a brief summary of some of the issues
raised in these cases.

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League of Women Voters of Pennsylvania, et al, vs. The Commonwealth of
Pennsylvania, et al8
On June 15, 2017, the League of Women Voters9 and individual
voters from various Pennsylvania congressional districts filed an action
against the Pennsylvania General Assembly and other state actors
challenging the constitutionality of the Congressional Redistricting
Act of 2011 (the "2011 Plan") under Article 1 §§ 7 and 20 of the
Pennsylvania Constitution (right to free expression and association)
and Article 1 §§ 1, 5 and 26 (equal protection). On October 11, 2017,
the Pennsylvania Supreme Court granted the Petitioners' Application
for Extraordinary Relief for expedited resolution of the matter before
the 2018 midterm elections. The Petitioners are seeking a redistricting
prior to those 2018 midterms.
The Commonwealth Court was tasked with conducting discovery
and trial proceedings so as to create an evidentiary record upon which
the Supreme Court could rely in addressing Petitioners' claims. On
December 29, 2017, Judge P. Kevin Brobson issued his Recommended
Findings of Fact and Conclusions of Law. The Findings of Fact make
clear that the 2011 Plan is an extreme partisan gerrymander that is
among the worst in the nation.10 The process of crafting and passing
the 2011 Plan was rife with secrecy and suspension of regular rules.
Indeed, the bills that became the 2011 Plan were introduced as "shell
bills" without content. Legislators were not given access to the 2011
Plan until the very day upon which they were required to vote for it,
preventing legislators, advocacy groups and constituents from having
any input into the 2011 Plan.11 The data-mining and voter sorting
software used to develop the 2011 Plan was highly successful. After
enactment of the 2011 Plan, in the 2012 congressional election,
democratic candidates won 50.8% of the vote statewide but ended up
winning only 5 of Pennsylvania's 18 congressional seats.12
Essentially, Judge Brobson concluded that though the Petitioners
proved intentional discrimination, there was no remedy. No
Pennsylvania statute prohibits partisan gerrymandering, and in
the absence of such a prohibition, the issue becomes how much
gerrymandering is too much. 14 Judge Brobson concluded that
partisanship is part of the process. He opined that he was presented
with no "judicially manageable standard by which a court can
determine that partisanship crossed the line into an unconstitutional
infringement..." 15
8
League of Women Voters of Pennsylvania, et al, vs. The Commonwealth of
Pennsylvania, et al, No. 261 M.D. 2017.
9
Petitioner League of Women Voters of Pennsylvania was dismissed from the
action for lack of standing by Order of the Commonwealth Court dated November 13, 2017.
10
League of Women Voters, Recommended Findings of Fact, ¶380.
11
League of Women Voters, Recommended Findings of Fact, ¶¶126-128.
12
League of Women Voters, Recommended Findings of Fact, ¶¶184,185.

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The Petitioners' experts believe that there are reliable methods for
determining when a partisan gerrymander has gone too far.16 Further,
Petitioners will argue before the Pennsylvania Supreme Court, among
other things, that there is no other context in which courts ask "how
much discrimination is too much?"17 Petitioners maintain that their
constitutional rights were clearly violated by the Respondents.
The Pennsylvania Supreme Court scheduled oral argument in the
League of Women Voters' case for January 17, 2018. As of publication, no
decision had been rendered. Access to the pleadings filed in the League of
Women Voters' case can be found at https://www.brennancenter.org/legalwork/league-women-voters-v-pennslyvania.
Agre v. Wolf18
On October 2, 2017, four Pennsylvania citizens filed an action in the
United States District Court for the Eastern District of Pennsylvania
against the Governor, the Secretary of State and the Commissioner of
the Bureau of Elections alleging that the 2011 Plan violates the Elections
Clause of the U.S. Constitution and requesting that the court redraw the
districts before the 2018 congressional elections. On January 10, 2018, a
three-judge panel of the Third Circuit ruled 2-1 against the plaintiffs.

Continued on page 12

League of Women Voters, Recommended Conclusions of Law, ¶51.
League of Women Voters, Recommended Conclusions of Law, ¶¶13, 15.
15
League of Women Voters, Recommended Conclusions of Law, ¶31.
16
See eg. League of Women Voters, Recommended Findings of Fact, ¶¶356, 370.
17
See https://www.pubintlaw.org/cases-and-projects/pennsylvania-redistricting-lawsuit-case-documents/ Petitioners Opening Brief, page 4.
18
Civil Action No. 2:17-cv-4392
19
U.S. Const. Art. I, § 4, Cl. 1.
13
14

Winter 2018 | 11

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Berks Barrister Winter 2018

Table of Contents for the Digital Edition of Berks Barrister Winter 2018