The Philadelphia Eagles won the Super Bowl for the first time on Sunday, but the really big news from Pennsylvania could arrive at any time this week.
The U.S. Supreme Court could rule any day now on a request by Pennsylvania Republicans to block a state supreme court order which invalidated all 18 congressional districts and demanded new maps be in place for this year’s elections.
And like the mayhem in Philadelphia after the big win over the New England Patriots, things are getting a little ugly.
The latest: The GOP House speaker and Senate president have now asked to have the state supreme court decision vacated because the court’s justices – who are elected – discussed their opinions on gerrymandering during the campaign.
One justice, David Wecht, told voters at a candidate forum that “gerrymandering is an absolute abomination. It is a travesty. It is deeply wrong.” He also expressed that opinion in interviews with newspaper editorial boards.
The GOP leaders also requested that another Democrat elected to the court, Christine Donahue, provide more information to see if she had a conflict of interest, because she campaigned on the promise that “gerrymandering will come to an end” with more Democrats on the state supreme court.
A leading legal ethicist, NYU’s Stephen Gillers, told the Huffington Post that the GOP petition ”makes a strong argument that one justice should not have sat [on the gerrymandering case] because of his campaign statements, which read to me like a promise, not merely an announcement.”
That said, Gillers added, “it is universally understood that a litigant has a duty to make a recusal motion quickly after she learns or could have learned the facts warranting recusal. You can’t hold back and see how the judge will vote and then seek recusal, or first start your research on the judge’s statements, if you lose.”
Most Supreme Court watchers have found it unlikely that the Pennsylvania Republicans will find five justices on the High Court willing to stay the state supreme court decision. The Supreme Court has traditionally been very reluctant to interfere with a state court interpretation of state law.
The Republican case on the request to the U.S. Supreme Court revolves around the Elections Clause in the U.S. constitution. It proscribes that U.S. House members will be elected under rules designed by the legislature. They argue that the new maps would move a legislative function to the judicial branch.
The plaintiffs in the case, the League of Women Voters, responded to that argument late last week. They claimed that: “Applicants’ ostensible hook for federal intervention is an Elections Clause theory that this Court has squarely rejected in decisions dating back nearly a century. To accept Applicants’ theory, this Court would need to overrule no fewer than six of its precedents, all upholding the power of state courts to review and remedy unconstitutional congressional districting plans.
“In these circumstances, Applicants cannot seriously maintain that this Court will …
reverse. Their stay applications are just a ploy to preserve a congressional map
that violates Pennsylvania’s Constitution for one more election cycle.”
Republicans have won 13 of the 18 Pennsylvania congressional seats on these maps in 2012, 2014 and 2016. As Michael Li of the Brennan Center suggested Sunday on Twitter, the maps helped provide the GOP with a three-touchdown headstart.