President Donald Trump wants Pennsylvania Republicans to fight the implementation of a court-drawn congressional map that threatens a half-dozen GOP-held seats this November, but most operatives and experts see little hope in a legal challenge to the new districts.
Republicans in Harrisburg and Washington say they’re moving ahead with legal action to stop the new map. But, behind the scenes, Republican consultants are already urging their clients to get ready for these new districts in 2018.
“I’m advising my clients to prepare for the worst-case scenario: that these are the maps this year,” said Mark Harris, a Republican consultant based in Pennsylvania.
The state Supreme Court, which released the new map on Monday, had ruled the previous district lines violated the commonwealth’s constitution as an improper Republican gerrymander. Because the issue is a matter of state law, legal experts say Republicans are unlikely to find judicial recourse in federal courts.
“The likelihood that [Republicans] will get a response from the [U.S.] Supreme Court is near zero,” said Justin Levitt, a law professor at Loyola Law School in Los Angeles.
That isn’t stopping Trump, who called on Republicans to take the case “all the way to the [U.S.] Supreme Court, if necessary,” in a tweet on Tuesday. “Your Original [map] was correct! Don’t let the Dems take elections away from you so that they can raise taxes & waste money!”
The National Republican Congressional Committee echoed that strategy in a statement later Tuesday, promising that “state and federal GOP officials will sue in federal court as soon as tomorrow to prevent the new partisan map from taking effect.”
“The suit will highlight the state Supreme Court’s rushed decision that created chaos, confusion, and unnecessary expense in the 2018 election cycle,” Matt Gorman, the NRCC’s communications director, said in a statement.
For Republicans, it’s not clear yet what legal avenue they plan to proceed with first, or what relief they will seek. But if they return to the U.S. Supreme Court, experts said it’s unlikely the court will change its position from earlier this month, when it rejected a request for a stay.
“The one thing they have going for them now is that the state Supreme Court has now acted, as opposed to threatening to act, but the big factor against that is [Justice Samuel] Alito already turned them down,” said Rick Hasan, a law professor at the University of California-Irvine. “They’re playing a weak hand.”
“Republicans have no real option left,” said Marc Elias, a Democratic lawyer who’s worked on several redistricting cases. “It’s the same argument that the U.S. Supreme Court failed to entertain last time, and I don’t expect them to entertain it this time.”
“The map you see is the map we’re going to have [in 2018],” Elias added.
That map opens up opportunities for Democrats — who currently hold only five of the 18 House seats in the battleground state — particularly in the greater Philadelphia area.
The Pennsylvania case isn’t the only partisan gerrymandering case working its way through the federal courts. Similar suits in North Carolina, Texas and Wisconsin are also currently pending before the U.S. Supreme Court, and the court did intervene in North Carolina, setting aside a ruling that threw out that state’s congressional map. But unlike the Pennsylvania case, the other cases involve questions of federal, not state, law.
Pennsylvania’s Supreme Court ruled last month that Republicans allegedly gerrymandered districts to their partisan advantage, a violation of the commonwealth’s constitution. Democratic Gov. Tom Wolf and GOP legislative leaders failed to agree on a new congressional map, triggering the state Supreme Court to use its own map.
So far, Pennsylvania Republicans have argued that the state Supreme Court is infringing on the legislature’s power to draw congressional maps.
“Implementation of this map would create a constitutional crisis where the Pennsylvania Supreme Court is usurping the authority of the Legislative and Executive branches,” state Senate President Pro Tempore Joe Scarnati and state House Speaker Mike Turzai said in a joint statement released Monday. “This map illustrates that the definition of fair is simply code for a desire to elect more Democrats.”
But legal experts said the U.S. Supreme Court has broadly interpreted the definition of a legislature in the Elections Clause of the U.S. Constitution, including a 2015 case in Arizona, which allowed an independent commission to draw the lines, instead of the state Legislature.
Since 2011, in addition to Pennsylvania, 11 other states are using congressional district lines drawn in total or in part by a state or federal court.
Scott Gessler, a former Republican secretary of state in Colorado, acknowledged that the GOP’s effort in Pennsylvania is an “uphill battle.”
“It’s always hard to get [the U.S. Supreme Court] to grant a stay, and they’ve already declined to grant a stay under a different posture, so that weighs against this one,” Gessler said, adding that the Supreme Court’s first rejection gives “an insight into their reasoning.”
Meanwhile, the “game of middle-school musical chairs” has already kicked off throughout the state, as candidates scramble to figure out where they will be running and what voters they should be talking to, said Christopher Nicholas, a Republican consultant in the state.
“Not only are there people running for office marooned in districts they weren’t running in, but people who weren’t running are now waking up and saying, ‘What about me?’” Nicholas said.
Like Harris, Nicholas said he’s fielded calls from clients, advising them to “run dual, side-by-side campaigns until the U.S. Supreme Court says whatever they’re going to say.”
Dan Meuser — a Republican running to replace Rep. Lou Barletta, who is running for Senate — exemplified that tension with a post on Facebook on Monday.
“We will note, the court-drawn 9th Congressional District overlaps many areas in the 11th District where we have been campaigning hard for the past five months,” Meuser wrote. “At this time, we are going to continue to campaign in what was the original 11th Congressional District and will comment further once all legal challenges are resolved and district lines become definitive.”
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