Redistricting and Judicial Elections in Pennsylvania

March 31, 2010

Justice Joan Orie Melvin of the Pennsylvania Supreme Court

With the census in full swing, Pennsylvania again looks forward to the decennial redistricting process, the back room dealing and eventual round of lawsuits. Under Pennsylvania Constitution Article II § 17, Democrats and Republicans in the State legislature each select two members of the five member Legislative Reapportionment Commission (LRC) which will conduct the redistricting. A fifth member who serves as Chairman of the Commission is selected by majority vote of the Commission or, in case of tie, by vote of the Pennsylvania Supreme Court.

Pennsylvania elects its Supreme Court and the issue of redistricting was a key party rallying point in elections last year. Justice Joan Orie Melvin prevailed in that election, giving Republicans a 4-3 majority on the Court. The race was the most expensive judicial election in the nation last year with over $5 million spent. The outcome will likely mean a second consecutive round of redistricting led by Republicans who controlled the 2000 process as well. Prior to the election Orie Melvin promised to put the good of the people first. “I am not a Republican judge; I am a judge of all the people. I have always followed the constitution – and will do so in redistricting.”

The 2000 reapportionment scheme was followed by numerous legal challenges (Vieth v. Jubilirer was an eventual consequence of this effort) but ultimately helped Republicans temporarily reverse a 11-10 majority in U.S. House seats. The Pennsylvania delegation lost two seats following the 2000 census and may lose another in the coming round, making control of redistricting, always a blood sport in Pennsylvania, particularly contentious. Pennsylvania has been consistently losing seats in each re-apportionment since a high of 34 seats in the 1940s.

Once the census is competed, the Commission has 120 days to submit its plan, which will then likely be delayed until legal challenges are resolved. However this process is likely to be accomplished fairly quickly since federal courts after Vieth have not been interested in hearing redistricting cases and any state appeals are heard directly by the state Supreme Court which nominated the deciding vote of the Commission. Governor Rendell has repeatedly called on the legislature to amend the Constitution to create a non-partisan agency to conduct redistricting as is done in Arizona, Hawaii, Idaho, New Jersey and Washington. This would require amendment of the state Constitution, a process in Pennsylvania which requires passage of identical bills in two successive sessions and then ratification by the popular vote.

Bills to begin this daunting process have repeatedly died in the State Government Committees of the House and Senate in recent sessions and at this late date there is no chance that a constitutional amendment could be passed in time to affect the next redistricting process. One possible hope to bring some transparency to the process is HB 1805, submitted by Rep. Babette Joseph (D-Phil). This bill would mandate that the Chairman of the LRC not have served as an elected official or lobbyist within the past ten years, and requires a variety of public hearing and comment periods to promote openness. Unfortunately, HB 1805 was sent to the House Appropriations Committee in November and has not been heard from since.

Sam Robinson is a student at William & Mary Law School

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