This is a revised version of an op-ed published in the PA Capital-Starr on February 24, 2022
Yesterday, the Pennsylvania Supreme Court released its congressional district map. It meets two of the critical requirements of a congressional redistricting plan: it does not favor one party or another, and it allows shifts in voters’ choices to be reflected in who is elected to Congress. In a state with a small Democratic edge in registration, seven of the 17 districts lean Democratic, while six lean Republican. And four districts—1, 7, 8, and 17—are competitive. If voters in the state tilt toward the Democrats, Democrats are likely to hold a majority of the Pennsylvania seats in the U.S. House of Representatives. If the voters tilt Republican, Republicans are likely to do so. In addition to allowing shifts in political opinion to change the composition of Congress, competitive districts also help ensure that representatives are responsive and accountable to all voters, rather than to the extreme members of their own party.
The House and Senate district maps chosen by the PA Legislative Reapportionment Commission (LRC) had to go farther to accomplish the first goal as they had to reflect the changing demographics of our commonwealth and unwind two decades of extreme partisan gerrymandering, documented in a recent paper. They did almost as well on the second criterion, although perhaps because legislative caucus leaders who seek to protect their incumbents are part of the LRC, the proportion of competitive districts in the House and Senate maps is smaller than in the congressional map.
But the state legislative maps, especially the House, have been harshly attacked by Republicans. In fact, House Majority Leader Kerry Benninghoff has filed suit rejecting the House map, and we are likely to see similar criticism of the congressional map.
The background for the Republicans’ criticism is fairly obvious—while the new districts are, by standard metrics, still somewhat tilted in favor of Republicans, they are far less gerrymandered in their favor than the districts Republicans drew for themselves in the last two decades.
It is hard not to conclude that when it comes to legislative districts, like presidential races, Republicans are not willing to accept rules that don’t guarantee they win elections.
Benninghoff’s suit raises two substantive arguments that deserve attention, not least because they show us where the Republicans stand on critical issues before us.
The suit claims that there is no justification for focusing on statewide, partisan fairness in drawing district lines—that is, for the effort to ensure that the proportion of the seats won by each party should roughly be similar to the proportion of votes won by each party statewide. It holds that the goal of proportionality is not one of the standards explicitly mentioned in Article 2, Section 16 of the Pennsylvania Constitution, which says that state legislative districts should be compact, contiguous, equal in population and not divide county and local political entities unless “absolutely necessary.”
However, the PA Constitution explicitly says in Section 2 of Article I that all power is inherent in the people and in Section 5 that “elections shall be free and equal and no power…shall…prevent the free exercise of the right of suffrage.” And the structure of government set out in the Constitution is designed to create a republic, which, following James Madison’s definition in the Federalist Papers, is a government in which “all power is derived directly or indirectly from the people.”
The PA Supreme Court ruled in its 2018 decision on congressional maps that district lines that provide a permanent and substantial advantage to one party or another fundamentally violates the principles and design of the government created by the Pennsylvania Constitution. We need unbiased districts to ensure that shifts in public opinion about parties and issues are registered in the composition of the General Assembly. Thus, avoiding partisan bias is one of the necessities that allows for some departure from explicit standards in Article 2, Section 16.
The second complaint about the House district map is that it overrides what is said to be the “natural political geography” of the state. Critics of the LRC’s work say that maps should reflect a natural Republican political advantage created by the tendency of Democrats to live together in urban areas. This same argument is found in Commonwealth Court Judge Patricia A. McCullough’s decision to pick the House Republican plan for congressional districts—a decision that PA Supreme Court implicitly rejected yesterday.
One response to this claim is that the importance of eliminating partisan bias justifies some effort to override any natural Republican advantage. It is one of the necessary grounds for breaking district lines.
But, more importantly, there is no such thing as a natural political geography. That Democrats live together in urban areas is a product not of individual choices but of a long history of public policy that has led to the flight of a disproportionately white middle class from our cities to the suburbs leaving a concentration of disproportionately Black, poor, and working-class people in our cities. Those public policies include transportation infrastructure that encouraged white flight; redlining, which undermined urban neighborhoods and limited the ability of Black people to accumulate wealth; racist deed covenants that, until recently, blocked Black people from moving to the suburbs; and zoning laws that make it difficult to build low-income housing in the suburbs.
Given this history, there is a strong case to be made that not only the Pennsylvania Constitution but the 14th Amendment to the United States Constitution and the federal Voting Rights Act requires that political map makers make an effort to draw lines that minimize rather than recognize any so-called “natural” Republican political advantage. This would go a long way in ensuring that voters in urban communities, and especially Black and Latino voters, are able to elect legislators who represent them, not just by being packed into small districts that overwhelmingly elect Democrats but by being spread into a larger number of districts, including surrounding districts that may cross municipal lines where they can form coalitions with other voters to elect legislators who will represent their interests.
It shouldn’t surprise us that a Republican Party focused on exacerbating racial tensions in order to motivate their shrinking base of white voters to go to the polls would bolster their position in a redistricting case by relying on arguments that tacitly rest on conditions created by white supremacy. But that it is one more reason to reject those arguments. Recent research shows that breaking down racial segregation—which has been increasing, not decreasing, in recent years—is a key to reducing partisan division based on race. We have a long way to go in addressing racial segregation, but a good first step is to draw legislative districts that encourage Black and white people to work together politically. That is what the Supreme Court’s congressional map and LRC’s state House district map have done. Voters should applaud them for their work.