by Frank Kirkwood
In Michigan and Wisconsin, Republican state legislators are engaged in shameful anti-democratic maneuvering to hold on to their power. We might expect Pennsylvania’s Republican legislators to be similarly engaged, especially since the power to redraw legislative lines is very likely to be under the control of Democrats when the Reapportionment Commission takes up the task in 2021. Unless the redistricting process is changed, Republicans and their patrons will likely be looking at 10 years out-of-power in the General Assembly as the Democrats gerrymander them into fewer and fewer winnable districts – just as the Republicans did to the Democrats in 2011. The future looks pretty dark. Will they accept their fate and go quietly? No, not likely.
The question for the Republicans as they enter the new session of the General Assembly is, “How can we use our current control of both chambers of the General Assembly to gain control of the redistricting process and gerrymander future maps so as to maintain our control for the coming decade?”
Here is the answer in 8 easy steps:
Step 1. Pass SB 22, the amendment to the Pennsylvania Constitution, introduced this year by Senator Boscola. It is the same SB 22 that passed the Senate State Government Committee last session, but was further amended on the floor before passage (the Aument Amendment). It passed the Senate but never got a vote in the House.
This is definitely not the version of SB 22 that was originally introduced last session. That version, which would have created a truly Independent Citizens Commission was completely gutted and replaced by Chairman Folmer.
If this year’s SB 22 passes both houses (the Governor cannot veto it) and passes the legislature again very early in 2021 then it can be on the ballot in the primary election in May of 2021. If approved by voters, it will be in force for the 2021 reapportionment and redistricting which will take place later that year. In April 2019, SB 22 passed the State Government Committee (with all but one Republicans voting in favor, all Democrats voting against, except Senator Anthony Williams) and has been sent to the Senate floor.
If Step 1 is completed and SB 22 (or similar) becomes part of the Constitution, the following steps, if taken by the Republicans, will allow them to create Congressional and legislative maps that are heavily gerrymandered in their favor.
Step 2. Draw 3 maps. The Republicans start the redistricting process by drawing their desired final maps for Congress, State Senate, and State House. The congressional map will be drawn to advantage Republican congressional candidates but will not be gerrymandered as severely or as obviously as the 2011 map that gave congressional Republican candidates huge advantages (until the State Supreme Court threw that map out). The second map similarly gerrymanders the State Senate to advantage the Republicans and the third map does the same for the House Republicans. One of the maps (either the State Senate or the State House) must be drawn to also create “safe” districts reserved for a specific group of cooperating incumbent Democrats (that is, existing districts will be protected or adjusted so that they will be very unlikely to be won by a Republican).
Step 3. Make a deal with enough Democrats in either the House or the Senate to create a 2/3 majority within one of the chambers. Currently, a 2/3 majority in the Senate would be made up of 28 Republicans + 6 (of 22) Democrats (see NOTE below). In the House, the 109 Republicans would need to recruit 25 (of 94) Democrats to create the 2/3 majority. Then use that coalition to create the 2/3 majority necessary to approve Commissioners for the Commission.
[ NOTE: The number of Republicans and Democrats in the Senate is currently in flux. Currently, there are 27 Republican Senators and 22 Democratic Senators. There is 1 vacant seat. The Republicans are most likely to win the Special Election to make the score 28 Republicans and 22 Democrats. The more Republicans there are, the more likely it is that the plan described here can be successful. (When Folmer originally created this version of SB 22, before the 2018 election, the Republicans held a 34-16 majority. ) Whatever the score is when it comes time to draw maps, any 34 Senators can make it work. ]
Step 4. Put in place the 6 Commissioners needed to control the final output of the Commission. SB 22 calls for the leaders of both parties, in both houses, to each nominate 2 Commissioners from a pool of “qualified applicants” who have volunteered to be on the Commission. This pool will include thousands of civic-minded citizens but will also include citizens who joined the pool because Harrisburg politicians asked them to join. Nominees to the Commission will not be selected randomly from the pool. Instead, the nominees selected by party leaders will be the dependable and coached allies of the party leaders. Their relationship to the party leader may be in plain sight or it may be found deep in the network of a leader’s friends, family, patrons, supporters, business relations, loyal party members, or anyone ambitious and seeking to win favor with a powerful politician or, for that matter, the ally of a powerful politician.
SB 22 describes some classes of citizens who are disqualified from serving on the Commission due to their obvious closeness to leadership. But, as long as the selection of Commissioners is in the hands of politicians, they will use their power to get the Commissioners they want. That is the business they are in. (If the rules were changed to require that there be NO connections between legislators or their associates and the nominees for the Commission, the question then becomes, “Why not simply have random selection of Commissioners from the pool of qualified applicants?” and remove all such concerns, an approach favored by the original version of SB 22 when it was introduced last session.)
The nominees selected by party leaders must be agreed to by a 2/3 majority in the chamber of the party leader who nominated them. Each chamber gets to vote only on the nominees from their chamber. In 2021, if the Republicans hold the majority in each chamber, any nominee put up by the Democratic leaders will have to be agreeable to the Republicans if the Republicans stick together and vote as a bloc. The only Democratic nominees that leaders can put forward who will be capable of getting 2/3 of the vote, will be the nominees supported by both the Republicans and the double-dealing Democrats.
If this amendment becomes part of the Constitution, Democratic party leaders will presumably be constitutionally obligated to nominate Commissioners who are capable of getting Republican votes in order to reach 2/3 approval in their chamber. It will not take Democratic leaders long to recognize that, rather than be the victim of a group of Democratic double-dealers, it is smarter to be the leader of the double-dealers and to protect their own seat and those of their closest allies in their chamber because it is inevitable that their party is going to be gerrymandered into the minority. We can even imagine the situation where whoever is the Senate Democratic leader in 2021 will compete with the House Democratic leader to be the Republicans’ partner.
The Republicans need to recruit double-dealing Democrats in one house only. In that house, the seats of the double-dealers will be safe. The seats of other Democrats in that chamber will be gerrymandered as the Republicans choose. Democratic seats in the opposite chamber will not be protected at all. The Commission will draw Congressional districts to favor Republican congressional candidates. They would likely avoid an extreme gerrymander (such as the 2011 map) in order to avoid the Supreme Court easily declaring it unconstitutionally partisan.
The 4 Commissioners put on the Commission by the Republicans + the 2 Commissioners put on with the assistance of the double-dealing Democrats will produce the 6 votes required to control the process the rest of the way.
SB 22 also allows the Governor to select 3 nominees who are not members of either party from the pool. These nominees must be approved by 2/3 in each house. The identity of the Governor’s 3 Commissioners and how they vote on the Commission will not matter at all. The 2 Commissioners nominated by the Democratic leader in the chamber where no deal has been struck with the Republicans, will also be irrelevant to the outcome of the process.
Step 5. Veto all proposed maps. To be approved by the Commission, any map must get 7 votes out of the 11 Commissioners. Those 7 must include at least 2 votes from each of the 3 sub-groups (4 Republicans, 4 Democrats, 3 independents [the Governor’s picks]). So, any 3 of the 4 Republicans can kill any proposed map. They will use this veto power to see that the Commission fails to produce a map. According to SB 22, in the event of such a failure the Commission is required to provide the General Assembly with a package of 2 or 3 maps for each of the three categories: Congress, State Senate, and State House.
Step 6. Recommend gerrymandered maps to the General Assembly. Only 6 of 11 votes (a simple majority) will be necessary for the Commission to recommend that a particular map be included in the package. The maps recommended by the Commission to the General Assembly will include the agreed upon maps from Step 2, plus (because the law requires that 2 or 3 maps in each category must be recommended) other, slightly different versions of those maps. The 4 Republicans + 2 double-dealing Democrats will produce 6 votes. The other Commissioners together can produce only 5.
Step 7. The General Assembly rejects all proposed maps. SB 22 requires that the General Assembly select one Congressional map, one State Senate map, and one State House map from the package provided by the Commission, each by a 2/3 majority in both houses. The non-double-dealing Democrats, who have now been gerrymandered on every map, will not provide their portion of the 2/3 majority and all maps will fail to win approval.
Step 8. The Supreme Court chooses from the same maps from Step 2. In the final step, SB 22 prescribes that, failing passage in the General Assembly, the package of maps then will be sent to the Supreme Court. The Court then picks one map from each category to be the final map. Since every map presented to the Court to choose from is essentially identical to the maps drawn in Step 2, the mission will be accomplished.
Arguments against the possibility of this scenario succeeding and counter-arguments:
A. The Democrats could do the same thing.
True, whichever party or group of legislators who can assemble a two-thirds majority in one house of the Legislature can make this plan work. The more legislators a party has, the more easily it can make this happen. In 2021, when this Constitutional Amendment becomes law, the Republicans are likely (in part, thanks to gerrymandering!) to still have majorities in both houses.
B. It is not desirable for Republican leadership to have the SB 22 bill play out as described. If the Constitution does not change. Republican Party leadership could make a deal with Democratic leadership to protect their own seats in the Reapportionment Commission.
Probably true, but why would Republicans take half a loaf when they can have the whole thing?
C. Significant numbers of Republicans will not support SB 22 bill.
The Reapportionment Commission, in the hands of the Democrats, will cut large numbers of incumbent Republican legislators out of the next map. Fear of job loss will rally these backbenchers around Folmer’s plan to let Republicans, in concert with a small number of Democrats, draw the maps.
D. Democratic members of the legislature would never participate in a plan that might benefit them individually (or benefit their patrons) in exchange for creating maps that severely disadvantage their party.
This, April 2018, Philadelphia Inquirer article about the last redistricting begins, “While Democrats today seek to use the issue of redistricting to help propel them to victory in November, it’s a rather inconvenient fact that dozens of Democratic state lawmakers voted for the congressional map in 2011 that the Pennsylvania Supreme Court in January declared an unconstitutional Republican gerrymander.”
During the last redistricting, individual legislators acted in their own self-interest knowing that the result might mean that the other party could end up controlling the US House of Representatives. They will act in their personal self-interest again this time too and SB 22 gives them the opportunity.
E. Public outcry will stop this amendment after it has passed the legislature.
The Republicans wrote this bill, got it passed in the Senate last session with votes from the Democrats. This year a Democrat introduced it and another Democrat voted for it in committee. If they have the votes to pass it, they can say, “This was a good bill last year, this is the same bill, it has bipartisan support, let’s put it in the Constitution.” Once it is passed out of the legislature and put on the ballot, it may be to late educate people about such a complicated subject.
F. If the SB 22 bill gets approved by the Legislature during the 2019-20 session and again in the first months of the 2021-22 session, then opponents can vote it down when it appears as a referendum question on the Municipal Primary ballot in the May 2021 election.
The Municipal Primary election in 2021 is likely to have a very, very low voter turnout. The people who usually vote in this type of election are older and more Republican than the voters in high-turnout elections. Exact statewide turnout percentages are difficult to find. But, here are the combined number of votes cast in the statewide races in each of these types of elections:
2018 General Election, (Wolf+Wagner+third party candidates for Governor) = almost 5 million voters
2016 General Election, (President, Clinton+Trump+others) = almost 6 million voters
2017 Municipal Primary (Justice of the Supreme Court, Woodruff+Mundy) = 1.1 million voters
2013 Municipal Primary (Supreme Court Justice, Stabile+McVay+Waters) = less than a million voters.
As in 2017 and 2013, 2021 will be a Municipal Primary election, so it will be an excellent opportunity for Republicans to get this Amendment to the Constitution approved by a very favorable electorate. If the double-dealing Democrats help, either by supporting the Amendment or doing their best to suppress local Democratic voter turnout, success for this “8 Easy Steps” plan is likely.
According to Ballotpedia, since 1996, 16 proposed constitutional amendments have been put on the ballot by the Legislature for the voters to approve or disapproved. All have been approved.
G. The Pennsylvania Supreme Court in 2018 found the congressional redistricting map of 2011 to be an unconstitutional partisan gerrymander. Maps produced through this process will also be found to be an unconstitutional partisan gerrymander.
This may be true but it will depend on the severity of the gerrymander and the process of the map making. In Step 2, the Republicans (and their Democratic partners) could start by designing maps that are not as outrageously partisan as the 2011 maps. Instead, these maps would be drawn to exaggerate the ability of Republicans to be elected, well beyond the result that would be expected from a map drawn without any partisan design. When challenged in court, they could truthfully say, “The process used to draw these maps was debated in the Legislature and approved twice. It received support of members of both parties. It was approved by the voters. It is now part of the Constitution and we followed the process exactly as it was written and, because of the new transparency requirements, it is the most open process ever used to produce congressional and legislative maps. How can the court say the resulting maps are unconstitutional when the process is exactly what the legislature and the people just put in the Constitution?”
That’s a hard question. I won’t guess how the Court would answer.
Note: I believe the process described above is possible, even likely. I would be delighted to learn that this assessment is inaccurate because I have misunderstood, miscalculated, or failed to consider other relevant factors. Frank Kirkwood (email@example.com)