A group of Pennsylvania Republicans are asking for a federal judge to keep the state’s highest court from picking a congressional map.
Instead, they argue that Pennsylvania’s soon-to-be 17 congressional representatives should run in a statewide free-for-all, following an obscure 1941 federal law.
The lawsuit, first reported by the Associated Press, was filed on Feb. 11 by five Pennsylvania voters including Republican congressional candidates Jim Bognet and Aaron Bashir, as well as Susquehanna County Commissioner Alan Hall, who also serves on that county’s board of elections.
On Monday, the plaintiffs asked for an injunction preventing the state Supreme Court from acting further. The court heard arguments in its map case last Friday.
“The state judiciary has no authority to alter or ‘suspend’ the primary-election calendar that the Legislature has enacted, and it is constitutionally prohibited from doing so,” the suit argues.
Pennsylvania’s congressional map is in the courts after Democratic Gov. Tom Wolf and the Republican-controlled General Assembly could not come to an agreement on new lines.
Outside groups filed suit asking state judges to intervene early in the process, citing the high potential for an impasse. After Wolf officially vetoed the GOP proposal, the court battle began in earnest.
But the state courts should not play a role, the federal lawsuit argues. Under the U.S. Constitution’s Elections Clause, state legislatures, not judges, set the “times, places, and manner” of elections.
And because Pennsylvania is losing a congressional seat — from 18 to 17 due to a lagging population growth — federal law already orders that congressional representatives be elected at-large “until a State is redistricted in the manner provided by the law.”
The state’s congressional maps are normally enacted by a bill passed by the General Assembly and signed by Wolf. Until two agree, the court must wait, the plaintiffs argued.
“There will doubtless be some congressional candidates and voters who will benefit from an unconstitutional map drawn by the Supreme Court of Pennsylvania —and who will therefore be harmed by an injunction that compels the defendants to follow the Elections Clause rather than the edicts of the Pennsylvania judiciary,” the suit said. “But other candidates and voters will benefit from the proposed injunction, and the Constitution trumps in these situations.”
Similar legal arguments, citing the Elections Clause, undergirded Republican efforts to block Pennsylvania’s 2020 presidential election results.
The high court ruled that mail-in ballots would have three extra days to arrive due to postal delays; Republicans argued that this usurped their constitutional authority.
The U.S. Supreme Court denied hearing the case. But in a dissent, conservative Justice Clarence Thomas argued that it was “an ideal opportunity to address just what authority non-legislative officials have to set election rules, and to do so well before the next election cycle.”
“The refusal to do so is inexplicable,” he added.
The case is being argued by two lawyers, one of whom is former Texas solicitor general Jonathan Mitchell. A conservative legal scholar, Mitchell helped design Texas’ recent abortion ban that the U.S. Supreme Court declined to overturn.
The same attorneys represented Pennsylvania GOP lieutenant governor candidate Teddy Daniels’ attempt to intervene in the congressional map suit earlier this month. Daniels made a similar argument, and asked that the state court halt its deliberations, allow petitions to restart, and mandate at-large congressional elections.
Last week, the state Supreme Court denied Daniels’ request.
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