By Marc Levy
HARRISBURG, Pa. — For the first time in three decades, Republicans in Pennsylvania are facing the redrawing of legislative and congressional districts without a friendly state Supreme Court majority to referee disputes, but perhaps not for long.
Legislation to amend the state constitution is advancing through the Republican-controlled Legislature that could cut short the current Democratic majority on the state Supreme Court. The high court’s 5-2 Democratic majority took over in 2016, succeeding a Republican majority in place since 2002.
Final approval of the constitutional change could land in front of voters on the May 2021 primary ballot for a statewide referendum — just as the politically charged work of redrawing district boundaries is cranking up.
It is a tight timeline, given the legal requirements of amending Pennsylvania’s constitution, but possible with concerted action.
“It would have to go ‘boom boom,’” said Rep. Russ Diamond (R-Lebanon), the measure’s chief sponsor.
How district lines are drawn could help shift the political balance in Congress and the Legislature for a decade, until after the next census.
The crux of the Republican-penned constitutional amendment is this: Instead of Supreme Court justices and appellate court judges running for 10-year terms on the bench in statewide elections, they would run for the seats in judicial districts where they live.
There is some precedent for that: Four states elect high court judges by district to a first term, according to information from the National Center for State Courts. But in most states where voters pick high court justices — 18 out of 22 — they are elected in statewide contests.
Democrats call judicial districts a scheme to gerrymander the courts, now that the Supreme Court has a Democratic majority that could prove durable well past 2030. Diamond and other supporters say it would create more geographic and ideological diversity on the court.
Even if the court isn’t realigned in time to affect next year’s redistricting process, Republicans might see value in the measure anyway in the hopes of shortening the life of the Supreme Court’s Democratic majority.
The Democratic majority gives them pause in challenging the administration of Gov. Tom Wolf, a Democrat, in state courts. The 2018 decision to redraw the congressional districts in a landmark gerrymandering case still causes Republicans heartburn. And Republicans worry about how the high court will rule on a major public school funding lawsuit that is expected to make its way there.
Currently, two Democrats on the seven-member high court will reach the mandatory retirement age of 75 in 2037. One gets there in 2035 and a fourth in 2027. Before that, they have to run in up-or-down retention races without an opponent that justices almost always win.
Of the five Democrats on the court, one is from Philadelphia and four are from the Pittsburgh area. Changing to judicial districts could shorten the career of more than one Democrat, or force them to move and run in newly drawn districts outside the Democratic bastions of metropolitan Philadelphia and Pittsburgh.
Amending Pennsylvania’s constitution requires the Legislature to pass the proposed change in two successive two-year legislative sessions before voters approve it in a statewide referendum.
The House took the first step last month, approving Diamond’s legislation by a narrow majority, 102-95. Every Democrat opposed it, as did four Republicans.
Despite the handful of defections, House Republicans largely fell in line: voting for it were some Republicans with districts near Philadelphia and Pittsburgh who could lose clout in the courts under a realignment, as did Republicans like House Majority Leader Bryan Cutler (R-Lancaster), who prefer switching to an appointed judiciary.
The measure is now in the Senate, where the Republican majority there ably passed a similar version of it in 2018.
Republicans must hang on to control of the Legislature in this November’s elections to pass it again in the legislative session that begins next year. Swift action could get it on the May 18, 2021, primary election ballot, although Diamond said the fall ballot is more likely.
Getting onto the ballot doesn’t require the approval of Wolf, who opposes judicial districts.
However, if voters approve the amendment, then lawmakers would be tasked with enacting the details of the transition, including drawing population-based district boundaries and dictating the timing of the transition to district elections.
Such legislation could be blocked by Wolf, whose term runs out in early 2023.
Diamond said he envisions involving both Wolf and the courts in writing the legislation, and ultimately making the transition to district elections when a justice’s 10-year term is up.
“We’re not just going to shove someone out of office because they live somewhere else right now,” Diamond said. “It has to be forward-looking.”
Three Democrats will see their terms expire in 2025 and one in 2027, while one must retire in 2022.
Senate Minority Leader Jay Costa (D-Allegheny) said the constitutional amendment process is perhaps too late to alter the courts during the coming redistricting. Still, Wolf offers Democrats some protection, he said.
“If we pass something in 2021,” Costa said, “we still have a Democratic governor in 2021.”