Philadelphians Press Hard to Overturn Gerrymanders

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PENNSYLVANIA’S congressional districts as they are currently drawn…

BY TONY WEST
Two Philadelphian political leaders are playing prominent roles in legal challenges to Pennsylvania’s congressional redistricting plan, adopted in 2011 by a Republican-run General Assembly and signed by Republican Gov. Tom Corbett, which has resulted in one of the most-extreme example examples of gerrymandering in the nation.

Both lawsuits are on a fast track to high courts because they aim to overturn current district lines in time for the May primary election season to commence. Petitions for these races will start to circulate on Feb. 13. However, a Department of State official has testified that the election could still be run smoothly if a new map is in place by Feb. 21.

Democratic 21st Ward Leader Lou Agre is the plaintiff in a federal action, Agre v. Wolf, filed on October. Oral arguments were heard in a three-day trial starting Dec. 5. On Jan. 10, a three-judge panel for the U.S. 3rd Circuit Court of Appeals ruled, 2-1, against Agre. Its Chief Judge, D. Brooks Smith, stated, “The structural change plaintiffs seek must come from the political process itself, not the courts.”

This has typically been the outcome of most court challenges to redistricting maps. But sophisticated data analysis provides new tools that can offer mathematically precise evidence of discrimination in maps, which may violate terms in the U.S. Constitution.

Agre isn’t worried at the moment. An appellate decision in the 4th Circuit Court, about North Carolina’s similar redistricting plan, was struck down by a unanimous three-judge panel, using similar arguments,” said Agre. “So our side is ahead 4-3 at this point.”

To be sure, North Carolina Republicans have vowed to appeal the Circuit Court ruling to Washington. And the U.S. Supreme Court is dominated by a 5-4 conservative-appointed majority. But new evidence has been known to sway judges despite their ideological leanings.

Agre has long served as house counsel for the International Union of Operating Engineers Local 542. The attorney who is arguing the case, Alice Ballard, has a long background in Philadelphia employment and labor law.

Prospects may be different even if the arguments match up for a separate lawsuit, League of Women Voters of Pennsylvania, et al., v. The Commonwealth of Pennsylvania, et al. In part, that’s because it depends only on language in the Pennsylvania Constitution, which lays down stronger protections for individual rights, including rights of political association, than the national model. In part, that’s because the Pennsylvania Supreme Court is comprised of five elected Democratic justices to two Republican ones.

In this case, Lt. Gov. Mike Stack, a former state senator from Northeast Philadelphia and an attorney, has filed through his lawyers a response that strongly supports the plaintiffs – even though he is a technical target of this suit, as president of the Pennsylvania Senate.

Stack is asking the high court to side with the plaintiffs and give the legislature two weeks to fix the current map, or have the court impose a new one. He was a member of the Senate when the 2011 map passed that chamber on a late-night party-line vote, with less than 24 hours of consideration and no opportunity for public input or debate.

The 2011 map created 13 seats that are rock-ribbed Republican for the most part, to only five congressional seats, despite the fact party registration numbers are roughly equal in Pennsylvania; if anything, Democrats have an edge.

“Like my Democratic colleagues, I had no input in its design. The Republican leadership created this map without any public input and the results have been a disaster,” he said. “The current map has contorted districts and fails to keep communities of interest a single district.”

On Jan. 10, Stack filed a response in the Pennsylvania gerrymandering lawsuit and offered the Supreme Court a revised map he said is “fair, allows voters to truly select their congressman and allows communities with similar regional interests to have representation from a single member of Congress.”

…AND AS they could be drawn for contiguity, compactness and preservation of community interests, according to a map submitted by Lt. Gov. Mike Stack.

After the LWV filed this suit last summer, academic experts used computer algorithms to create thousands of alternatives that met the constitutional obligation of being compact, contiguous and respective of communities of interest. Stack chose one from among them that he thought the court would be likely to accept.

The Commonwealth Court stayed the case. Then PILC submitted an Application for Extraordinary Relief to the Pennsylvania Supreme Court. SC granted it and fast-tracked the case, ordering the Commonwealth Court to hold a trial and issue Recommended Findings of Fact and Conclusions of Law. But that decision was reversed in Commonwealth Court, where elected Republicans hold a majority.

In an opinion released on Dec. 29, Judge P. Kevin Brobson wrote that Republican legislators had failed to provide credible evidence that their map served valid, neutral needs – but he asserted that they enjoyed “legislative privilege” to withhold such evidence.

“The Legislative Respondents cannot use legislative privilege as both a shield and as a sword,” Stack’s brief countered.

The Supreme Court heard oral arguments in the case yesterday in Harrisburg. The plaintiffs’ case was developed by Mimi McKenzie and her team at the Philadelphia-based Public Interest Law Center. Arnold & Porter Kaye Scholer attorney David Gersch presented the oral argument in Harrisburg.

A key point in Stack’s response is his endorsement of an algorithm for generating 1,000 district maps “that adhered to traditional redistricting criteria … all of which significantly outperformed the 2011 plan.” The algorithm was developed by the petitioners’ expert, Dr. Jowei Chen. One of these maps was submitted by Stack as a model for the Supreme Court.

Such a map could aid the Supreme Court in devising a swift, practical remedy in advance of upcoming election deadlines.

Stack’s brief “attested that it is beneficial, whenever possible, to keep individual counties and municipalities together in a single congressional district,” so that their leaders and citizens have a single committed advocate at the federal level. He testified as the chair of the Commonwealth’s Local Government Advisory Committee.

Stack’s brief argues that the 2011 reapportionment fails the legal tests of strict scrutiny as well as rational basis in legitimate state interests.

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