Proposed Constitutional Amendment Could Extend Gerrymandering to PA Courts

Having worked for more than three years as a volunteer for Fair Districts PA (FDPA), I am confident that a growing number of Pennsylvanians realize that gerrymandering is a serious problem in our commonwealth.  Gerrymandering is the cynical manipulation of electoral maps to favor one party over another, and Pennsylvania has the sad distinction of being among the worst in the nation.

Despite growing support for reforming the way Pennsylvania draws its electoral maps, our General Assembly has been unresponsive to the proposed legislation.  Instead, the General Assembly is rushing a new piece of legislation forward that would introduce gerrymandering in our state appellate courts, including our Supreme Court.

For almost five years, Fair Districts PA has been advocating reforms designed to eliminate gerrymandering. We know from statewide surveys conducted in 2019 that the people of Pennsylvania are deeply concerned about legislators manipulating electoral districts to favor their party:

  • 72% of survey respondents believe that it allows party leaders to put partisan interests above those of citizens.

  • 70% agree that it creates polarization and gridlock.

  • 65% say it allows politicians to select their voters rather than voters selecting their representatives.

  • 62% think it gives voters less choice on election day.

Fewer than 1 in 5 PA voters think the current system is fine as it is.  More than two-thirds support an independent citizens commission to draw electoral districts.  (It’s worth noting that the U.S. is the only democracy in the world that allows its elected officials to draw the lines that affect their likelihood of holding on to power.)

With the upcoming required redistricting that follows the decennial U. S. census, this issue could not be more urgent and yet our state legislators have stalled, delayed, and ultimately killed the proposed legislation. In 2017-18 and again in 2018-19, bills were introduced to create an independent citizens commission.  HB 722, introduced in 2017-18, had 110 co-sponsors, more than a majority of PA representatives, and more than any other bill in that session or the sessions before or after. 

At the same time, FDPA volunteers all across the state secured resolutions of support from 24 counties and 360 municipalities representing more than 70% of the state’s population. Volunteers also collected more than 100,000 signatures on petitions supporting an independent commission. More than 500 letters to the editor and scores of op-eds and editorials appeared in papers all across the state. There were more than 900 public meetings attended by more than 30,000 concerned citizens.

Despite this widespread support, the bills introduced in the General Assembly never made it to a final vote.

By contrast, however, when the General Assembly wants to move fast, it can do so with apparent ease.  In 2019, Pennsylvania’s Republican-controlled House and Senate narrowly passed House Bill 196 to change the constitution so that Supreme Court justices as well as Superior Court and Commonwealth judges would no longer be elected by a state-wide vote.  Instead, these state-wide appellate courts would be divided into regional districts designed by the legislature. 

In order to amend the state constitution, the exact same bill must be passed twice in separate legislative sessions and then be approved by referendum in a regular election.  We can expect the legislature to introduce this bill again early in the new session that began on January 5.  If approved in the House and Senate, as expected, it could appear on the ballot as early as May.

Although the advocates for this constitutional amendment say they want to increase geographical diversity on the state’s appellate courts, there is nothing in these bills to prevent the same sort of gerrymandering that our legislature has practiced with such cynical skill in the past.  It is, in short, a very bad piece of legislation that would give our state legislators undue influence over our state courts, undermine the system of checks and balances that is central to our democracy, emphasize a judge’s location over his or her qualifications, allow politicians to gerrymander judicial districts, and prevent voters from having a say in the selection of judges who will rule on issues affecting all Pennsylvanians. 

It is telling that the bill was passed in great haste in 2019 along purely partisan lines with no hearings, no expert testimony, no opportunity for public input, and no evidence of public support.  The state bar association submitted a very strong letter opposing the bill.  In part, the June 15, 2020, letter states:

“A judiciary which possesses institutional and decisional independence, removed from influences of the political process, is central to the success of a republican form of government.

. . . Electing judges by individual district is contrary to one of the key purposes of a statewide appellate court, which is to render decisions that have statewide impact.  . . .  Judges should not have constituencies; they should only have litigants before them that expect them to apply the law without bias or other considerations.”

It is distressing that this letter and others submitted by various good-government groups cannot be found in the General Assembly’s official record. Despite the rhetoric, it is clear that this proposed amendment is not about geographical diversity but about political control of our courts.

If passed, Pennsylvania would be one of only nine states that still elect appellate judges using their party designation.  It would be one of only two (Louisiana and Illinois) that elect these judges on a regional basis.  It would the only state that allows its legislators to draw those districts.  Along with the unenviable reputation for being one of the worst gerrymandered states in the union, Pennsylvania recently scored zero in an assessment of state legislatures based on bipartisan cooperation.  Why would we want to introduce yet another level of partisanship that undermines our democracy?  I hope and trust that the voters of Pennsylvania will have better sense than to support this unwise attack on our judicial system.

Lex McMillan is President Emeritus of Albright College and former Vice President for College Relations at Gettysburg College. He lives in Cumberland Township.

GovernmentLex McMillan