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HARRISBURG — Pennsylvania’s highest court may soon decide how much partisan gerrymandering is too much, at least in terms of the state constitution.
A challenge by Democratic voters to Pennsylvania’s Republican-crafted 2011 congressional district map landed before the state Supreme Court on Wednesday, with a ruling expected in the coming weeks.
The map includes a suburban Philadelphia district that has been compared to one Disney cartoon character kicking another, a district that at times is as narrow as a single building.
The result has been a durable 13-5 GOP advantage over three election cycles despite a large Democratic voter registration edge and Democrats holding the governorship and three row offices.
The justices voiced concern about going farther than other courts to prohibit partisanship, and pressed lawyers about where the line might be drawn between fair partisanship and constitutional violations.
“A test has eluded every court that’s grappled with it,” said Justice Max Baer, one of five Democrats on the elected, seven-person court.
The justices could dramatically redraw the state’s political landscape months before the scheduled primary and make changes to the coming year’s election calendar. They also could follow a lower court’s recommendation last month and uphold the map, or they could delay implementation of any changes until 2020.
During a 2½ -hour argument session, a lawyer for the plaintiffs argued the map intentionally violates “viewpoint” constitutional protections for political expression and association.
“Our position is you can’t have a little bit of discrimination against the voters,” said the lawyer, David Gersch.
As a “fallback” position if the justices don’t ban partisanship outright, he argued they should throw out the maps if they find that political concerns subsumed other redistricting factors, such as compactness and minimizing municipal and county divisions.
Jason Torchinsky, attorney for the two Republican legislative leaders sued over the map, said political parties sometimes turn around their fortunes in spite of district maps that had once been considered insurmountable.
“It doesn’t take very long before social science runs into actual voters,” Torchinsky argued.
A lawyer for Gov. Tom Wolf, technically a co-defendant with House Speaker Mike Turzai, R-Allegheny, and Senate President Pro Tempore Joe Scarnati, R-Jefferson, told the justices the governor sides with the plaintiffs against the map and supports their “fallback” position.
“Partisanship perhaps has a role — on the edges,” said Wolf attorney Mark Aronchick.
Justice Debra Todd, a Democrat, said she was concerned about providing lawmakers sufficient time to give thoughtful consideration to a new map.
“The Legislature is not a computer and we are not robots,” she said.
Oral argument in the case came a week after a divided panel of three federal judges upheld the map, and as a decision is pending from the U.S. Supreme Court in a closely watched challenge to Wisconsin’s Republican-drawn legislative district map.
Last week, a federal three-judge panel in North Carolina said that state’s congressional map was too partisan and ordered it be redrawn by Jan. 24.
If no changes are made in Pennsylvania, candidates will start circulating petitions on Feb. 13 to get on the May 15 primary ballot.
The Wolf administration says the state can still run the scheduled May 15 primary as long as new maps are in place by Feb. 20.
Officials say delaying the primary until late July is realistic, and perhaps even a bit later. Aronchick said a separate primary will cost about $20 million.
Aronchick called those “issues that can be managed. But what can’t be managed is looking the other way at this unconstitutional map.”
A new map by 2020 is a “Herculean effort,” said Scarnati top aide Drew Crompton, but a preferable option to developing one on a compressed schedule this year.
“It’s still a new standard, contemplated out of whole cloth, but at least it’s time to do it,” Crompton said.