Pa. state Senate leader refuses court order on redrawing district maps

[DSYoungEsq]

@Bone

Yes in the general sense, but I’m asking about this specific one about redrawing districts. Do you think the court has the power to redraw federal legislative districts? Given the Elections clause, I’m contending that they don’t unless delegated that power.

@Lord_Feldon

The court has been delegated the “supreme judicial power of the Commonwealth” by the legislative process of the state. That seems like it’s universal, and therefore encompasses this.

More or less, yes, what he said.

And since the Supreme Court of the United States has already said it’s ok for the “Legislature” of a state to allow independent commissions to draw the boundaries, I think your hair that you are trying to split is not going to have much value to determining the case.

The more troubling aspect is, as you’ve noted upthread, the failure to date of the PA court to set forth exactly what is wrong, and how it should be fixed (beyond the direction to make certain that the districts are geographically compact, etc.). I presume this is because the court wants to move quickly, and, of course, opinions from supreme courts often take time to draft. But it isn’t exactly a transparent process. That raises the issue: is this about fairness, or about politics?

[Bone]

@DSYoungEsq

More or less, yes, what he said.

And since the Supreme Court of the United States has already said it’s ok for the “Legislature” of a state to allow independent commissions to draw the boundaries, I think your hair that you are trying to split is not going to have much value to determining the case.

Yes SCOTUS has said the legislature has the ability to delegate their federal district drawing power to others, including independent commissions and in the AZ case that was what was done. But that is not what was done in PA. The PA legislature never delegated their power to draw federal districts. PA explicitly created a commission to draw the state districts, and did not do so for the federal ones. The way the federal districts have been drawn in PA has been through the regular process of passing a bill and having the governor sign it. The question is whether the PA state supreme court can assume that power absent a delegation and that’s not a hair splitting exercise - it’s a balance of power question.

The delegation is what makes it okay. Without that delegation, do you think the court has the power to redraw federal legislative districts?

@Lord_Feldon

The court has been delegated the “supreme judicial power of the Commonwealth” by the legislative process of the state. That seems like it’s universal, and therefore encompasses this.

Does it encompass everything? Like in the example above - PA has a balanced budget requirement in their constitution (Article VIII, section 13). If the legislature passes a law that does not comply with that requirement, are you saying an available remedy would be for the court to write a new budget? In the analogy, I think the court could strike an operating budget that doesn’t comply, but I’d argue against the courts ability to write a new budget.

The judicial power delegated doesn’t include legislative power.

[DSYoungEsq]

@Bone

Yes SCOTUS has said the legislature has the ability to delegate their federal district drawing power to others, including independent commissions and in the AZ case that was what was done. But that is not what was done in PA. The PA legislature never delegated their power to draw federal districts. PA explicitly created a commission to draw the state districts, and did not do so for the federal ones. The way the federal districts have been drawn in PA has been through the regular process of passing a bill and having the governor sign it. The question is whether the PA state supreme court can assume that power absent a delegation and that’s not a hair splitting exercise - it’s a balance of power question.

The delegation is what makes it okay. Without that delegation, do you think the court has the power to redraw federal legislative districts?
Does it encompass everything? Like in the example above - PA has a balanced budget requirement in their constitution (Article VIII, section 13). If the legislature passes a law that does not comply with that requirement, are you saying an available remedy would be for the court to write a new budget? In the analogy, I think the court could strike an operating budget that doesn’t comply, but I’d argue against the courts ability to write a new budget.

The judicial power delegated doesn’t include legislative power.

Do you have any judicial authority to support your claim (the burden being on you and the complaining members of the Pennsylvania Legislature)? Or are you just pontificating on how it ought to be in Boneland?

[Bone]

@DSYoungEsq

Do you have any judicial authority to support your claim (the burden being on you and the complaining members of the Pennsylvania Legislature)? Or are you just pontificating on how it ought to be in Boneland?

I like my land But really, yes. The Elections clause says the power rests with the Legislature. Arizona State Legislature v. Arizona Independent Redistricting Commission says that the legislature can delegate this power if it chooses to. Since no where has PA delegated that power to the PA courts, it remains with the state legislature.

And given the courts in PA have never done this before, and they are engaging in new activity, I’m not convinced the burden rests on my side).

[DSYoungEsq]

@Bone

I like my land But really, yes. The Elections clause says the power rests with the Legislature. Arizona State Legislature v. Arizona Independent Redistricting Commission says that the legislature can delegate this power if it chooses to. Since no where has PA delegated that power to the PA courts, it remains with the state legislature.

And given the courts in PA have never done this before, and they are engaging in new activity, I’m not convinced the burden rests on my side).

The burden rests upon your side because the PA Supreme Court has already ruled. Now, if you want that ruling overturned…

And you’re not citing authority for your proposition. You are saying, in essence: “The Constitution says that A gets to do this. You say A can tell B to do it. A didn’t specifically tell B to do it. Therefore, B doesn’t get to do it.” But this begs the question, which is, “Does the general grant of the right of plenary judicial authority by a legislature to a court include the ability to do things normally reserved to the legislature to resolve a case to which the legislature is a party?” This question has been answered in the affirmative, impliedly, by the PA Supreme Court. You assert they are wrong. Thus, I ask, do you have actual authority on your side for that proposition?

Now, that could include a case directly on point, but then we wouldn’t be here. It could include a case very similar to, but not exactly the same (for example, a case involving another exclusive right of the state Legislature). Or it could include cases involving attempted exercise of judicial authority determined to have exceeded the power of the courts for some reason which you then analogize to the current situation. But you certainly should come up with something other than, “That case didn’t say you could.”

[Bone]

Well clearly there isn’t another example or authority directly on point else it wouldn’t be a question! This can be a trailblazer.

I think the rationale your employing (plenary judicial authority being expansive) would mean that you’d agree the court could write its own budget in place of the legislature in the instance where the legislature doesn’t produce one that complies with the balanced budget requirement of the state constitution. Would you agree that’s a logical extension of your position?

And, as a matter of statutory construction, given that the PA state constitution explicitly describes the manner in which line drawing authority for state legislative districts are to be drawn (by commission), but is silent on how federal districts are drawn, I think it’s a fair reading to say that the legislature did not intend to delegate their federal line drawing power. It’s like if they say we delegate A, C, and D. That means B is not delegated. Expressio unius est exclusio alterius.

And as for the burden, yes the status quo is now against my side. But given the opinion STILL hasn’t been released, I’d say the burden still rests with the court that is advancing their position - because while they have issued a conclusion, they have not issued a basis for that conclusion.
nitpick: you’re using the term “beg the question” wrong

[RTFirefly]

@Bone

Well clearly there isn’t another example or authority directly on point else it wouldn’t be a question! This can be a trailblazer.

I think the rationale your employing (plenary judicial authority being expansive) would mean that you’d agree the court could write its own budget in place of the legislature in the instance where the legislature doesn’t produce one that complies with the balanced budget requirement of the state constitution. Would you agree that’s a logical extension of your position?

Assuming for sake of argument that if the PA SC can redraw districts, it can rewrite a budget:

My thought is that it the latter would be, to use that hackneyed phrase, ‘judicial activism’ in a way that the former would not be.

Because from a practical standpoint, they couldn’t be more different. If the PA SC finds the PA budget in violation of the state constitution, it can throw it out, without any need to replace it with anything: the commonwealth of Pennsylvania would simply not have a budget until the legislature wrote a budget that was in compliance with the Constitution. Federal and state governments can go for a good while without having budgets, so there’s no need for the court to dictate the legislature write a compliant budget by a date certain, or the court will write its own. In the absence of any such need, and given the myriad issues that a budget addresses, the court writing a budget would make the Warren and Roberts courts look like amateurs with respect to judicial activism.

But if the Congressional districts violate the state Constitution, and the court tosses them out on that account, our representative system of government requires that there be Congressional districts - you can’t just go without them. So if the legislature won’t fix them, the court must. Voters and candidates alike need to know what the districts will be, to know where they can run, and where they can vote. This is not judicial activism because there is literally no choice. There must be districts.

[ganthet]

@Bone

I think the rationale your employing (plenary judicial authority being expansive) would mean that you’d agree the court could write its own budget in place of the legislature in the instance where the legislature doesn’t produce one that complies with the balanced budget requirement of the state constitution. Would you agree that’s a logical extension of your position?

This example is a good way of showing that standing is a built-in limiting factor to the power of a court or someone claiming to be wrong from seeking a court to just overturn this or that at will. It’s much easier to argue and to show some kind of damage or rights violation to having their constitutional voting rights infringed through an unfairly designed voting district. It would be much harder to show how an individual citizen’s rights are violated or they are themselves somehow suffer some direct financial or legal injury to a state government not creating a balanced budget for a particular fiscal year unless the constitutional amendment itself or some other law expressly carves out a standing exception that would allow the failure to submit or pass a balanced budget to be challenged in court.

This standing limitation helps keep the courts from (theoretically) biting off more than they can chew in terms of addressing grievances. It’s much simpler to address an individual’s or a narrowly defined group of individual’s financial or legal injury and take steps to correct it than simply find that the executive or the legislature didn’t broadly do what they were supposed to and actually tell them how to govern in a way that globally encompasses appropriating and authorizing state funds to operate the government itself.

In the PA example, the constitutional balanced budget amendment makes clear that it is the governor’s responsibility to submit a proposed balanced budget. There are exceptions to this balanced operating budget requirement, such as when funds are needed to suppress an insurrection, dealing with a disaster, etc. and steps outlined for when bonds can be issued to help re-balance a budget or when certain debt related issues can be put forth for approval of the voters.

[DSYoungEsq]

@Bone

nitpick: you’re using the term “beg the question” wrong

Nitpick: No, I’m not. I was indicating you had skipped the underlying fundamental issue in moving on to your point. That’s precisely what it means to accuse you of having “begged the question.”

Begging the question

[DSYoungEsq]

@Bone

I think the rationale your employing (plenary judicial authority being expansive) would mean that you’d agree the court could write its own budget in place of the legislature in the instance where the legislature doesn’t produce one that complies with the balanced budget requirement of the state constitution. Would you agree that’s a logical extension of your position?

I assert that state courts have power which is only limited by the following four things:

1. A limitation on their power by the enabling document (usually constitution) of the state;

2. A limitation on their power by a legal law of the state;

3. A limitation on their power from the English Common Law;

4. A limitation on their power expressly established by the United States Constitution.

Note that the final arbiter of 1, 2 and 3 is the “supreme” court of the state in question.

So, in the absence of 1, 2, 3, or 4, yes, the court would have exactly that power.

This question usually comes about at a lower level, when some enterprising judge decides to fashion some unusual remedy for a case in front of them. Everyone who sees it, or hears/reads about it questions whether the judge has the power to do that (including, often, the person to whom the order is addressed). Quite often, the response is, “Yes, yes they can do that.”

So let’s apply this concept to the case at hand. The League of Women’s Voters has filed suit, claiming inter alia that the Congressional districts created in 2011 were violative of Pennsylvania’s Constitution. The case has worked its way up to that states ultimate court. That court has made a decision in favor of the complainants, and fashioned a remedy to which the respondents object (namely, that the respondents should re-district the state following the law, and, if they can’t/won’t do so in the limited time offered to them, the Court will do it for them). The question is whether the Court is allowed under the Constitution of the United States to make that order. Clearly, the part of the order which is debatable is the assertion by the Court that they will do the re-districting themselves, if need be.

(As an aside, I will note that the Legislature had the full power to avoid this, simply by re-districting the state in the time allotted, but they intentionally refused to do so. That, to me, is an indication that their complaint about the rest of the remedy should be viewed with skepticism, but I digress…)

The only Constitutional claim worth worrying about is that the Constitution of the United States specifically delegates to the Legislature of a state the drawing of its districts for congress. “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof;…” The assertion being made is that this language specifically prohibits the courts in Pennsylvania from fashioning a remedy that includes re-drawn districts. The response (initially) is that the Pennsylvania Legislature has established courts with the authority to do this on be half of the Legislature (impliedly) as part of their judicial authority*. That the courts can fashion districts is an accepted power of courts; there have been numerous instances of both federal and state courts doing so in response to claims of illegal/unconstitutional boundary-drawing. In those cases in the case of state districts, one presumes, the drawing of the boundaries was delegated to the legislatures, much as drawing congressional boundaries is delegated to them by the US Constitution. So we have the already accepted principle in place: judicial district drawing is not precluded simply because the enabling document directs the legislature to do the drawing.

And it’s imperative that this be true. Let us assume, arguendo, that your assertion is true: the Court cannot fashion its own districts. Then what would the remedy for this wrong be? The Pennsylvania Legislature, controlled by Republicans, could refuse to re-draw the districts. The court, in the absence of being able to re-draw the boundaries, would have no appropriate remedy. They cannot use the current districts; those are unconstitutional. They cannot let the current office-holders stay in office; they are unconstitutionally chosen (and besides, the court by the same principle could not extend the terms of these people, since those are set by the Constitution of the US, and by the law established by the state Legislature). In short, your principle, taken to logical conclusion, establishes that the Legislature of a state would have zero check on its power to draw the districts, beyond the eventual possibility of being voted out of office at some future point in time.

Under the circumstances, and in the absence of judicial authority in favor of the limitation you would place on the state courts, I would assert that they do, indeed, have the power to do this.

Now, if you want to question their competency to do this (Political Questions for $100, Alex!), you might find some fertile fruit. After all, what happens if the Legislature and the Administration simply refuse to use the re-drawn districts?

[Bone]

@DSYoungEsq

I assert that state courts have power which is only limited by the following four things:

1. A limitation on their power by the enabling document (usually constitution) of the state;

2. A limitation on their power by a legal law of the state;

3. A limitation on their power from the English Common Law;

4. A limitation on their power expressly established by the United States Constitution.

Note that the final arbiter of 1, 2 and 3 is the “supreme” court of the state in question.

So, in the absence of 1, 2, 3, or 4, yes, the court would have exactly that power.

It seems like your contention is that the plenary power of states exists at the judiciary as well as the legislative branch. Such that the court has the power to do anything that is not expressly prohibited. I don’t take this view (your 4 options), and that’s not plain in the language of the PA constitution. Further, the PA constitution specifically reserves the legislative power of the state to itself (Article II, section 1). There are carve outs of course, like the state redistricting commission. But given the creation of that commission specifically described only the state districts, the power to draw federal districts were not so delegated.

The only Constitutional claim worth worrying about is that the Constitution of the United States specifically delegates to the Legislature of a state the drawing of its districts for congress. “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof;…” The assertion being made is that this language specifically prohibits the courts in Pennsylvania from fashioning a remedy that includes re-drawn districts. The response (initially) is that the Pennsylvania Legislature has established courts with the authority to do this on be half of the Legislature (impliedly) as part of their judicial authority*. ** That the courts can fashion districts is an accepted power of courts; **there have been numerous instances of both federal and state courts doing so in response to claims of illegal/unconstitutional boundary-drawing. In those cases in the case of state districts, one presumes, the drawing of the boundaries was delegated to the legislatures, much as drawing congressional boundaries is delegated to them by the US Constitution. So we have the already accepted principle in place: judicial district drawing is not precluded simply because the enabling document directs the legislature to do the drawing.

(my bold)
I think you’ve taken a leap and assumed the conclusion. That the courts can fashion federal districts is not an accepted power of the courts of PA. It has never happened in PA before - that’s the main point of contention. The enabling document is the US constitution - the power to draw federal districts is derived from that document.

And it’s imperative that this be true. Let us assume, arguendo, that your assertion is true: the Court cannot fashion its own districts. Then what would the remedy for this wrong be? The Pennsylvania Legislature, controlled by Republicans, could refuse to re-draw the districts. The court, in the absence of being able to re-draw the boundaries, would have no appropriate remedy.

The remedy is the US congress, or SCOTUS.

They cannot use the current districts; those are unconstitutional. They cannot let the current office-holders stay in office; they are unconstitutionally chosen (and besides, the court by the same principle could not extend the terms of these people, since those are set by the Constitution of the US, and by the law established by the state Legislature). In short, your principle, taken to logical conclusion, establishes that the Legislature of a state would have zero check on its power to draw the districts, beyond the eventual possibility of being voted out of office at some future point in time.

Many challenges are not justicable - and rely on the voters to change their elected representatives. I’m fine with that outcome. The legislature drawing federal districts is checked by the US Congress. They are more immediately checked by the voters of PA.

[Bone]

@ganthet

This example is a good way of showing that standing is a built-in limiting factor to the power of a court or someone claiming to be wrong from seeking a court to just overturn this or that at will.

I acknowledge that the issue of standing is a legit challenge to the hypothetical. I could try to craft another example, but I think the point I’m trying to make is clear - that the power of the court is not unlimited. If it were, they could do quite a few undesirable things, like write the state budget, and declare that standing exists.

[UltraVires]

Bone, it seems like you are saying that there is no judicial review of a legislative decision in this type of case. Suppose the PA Legislature stated that one of its main districting goals was to keep the number of black Congressional candidates to as few as possible. Would you agree that the PA Supreme Court could review that decision and determine that it violates the State Constitution?

If so, then this decision seems to be merely a matter of degree instead of substance.

[Bone]

No - there is certainly judicial review of legislative decisions even in cases of line drawing. My objection is the remedy of the court re-drawing the lines themselves.

[RTFirefly]

@Bone

No - there is certainly judicial review of legislative decisions even in cases of line drawing. My objection is the remedy of the court re-drawing the lines themselves.

Let me get this straight: as you understand it, the court CAN find the existing districts to be drawn in an unconstitutional manner, but they CAN’T re-draw the boundaries of the districts so that they comply with the state Constitution?

[Bone]

Yes.

[RTFirefly]

So the legislature, by choosing not to act in the wake of a ruling that the existing districts are unconstitutional, can prevent any remedy, and force the unconstitutional districts to remain in place?

[Damuri_Ajashi]

@Bone

Do you believe that the state supreme court has the authority to draw districts? I don’t think that is a a power they have.

The timing seems unreasonable to me, and as a co equal branch the legislature should contest it.

In terms of determining constitutionality, they are no co-equals. If the Legislature is not willing to uphold the constitution, then the courts must.

[Jonathan_Chance]

Indeed. But there are a couple of things to take into account, here.

1. Does the court have any faith that another attempt with prove more constitutional. After all, the same people, through the same process, will be determining the new district lines.

2. Timing. There’s an election coming up. Should the court allow the election to go forward under the old lines - while the process is continuing - or move quickly so that new lines are in place for the upcoming election. Does ceding the power to the legislature - per one, above - actually continue to violate voter’s rights through unconstitional districting?

Only the court can make those determinations.

[RTFirefly]

@RTFirefly

So the legislature, by choosing not to act in the wake of a ruling that the existing districts are unconstitutional, can prevent any remedy, and force the unconstitutional districts to remain in place?

Like I said in post #47, there have to be districts. The court can’t just disband the unconstitutional districts, and let the absence of districts force the legislature to act. People have a right to representation, and if there are no districts, then nobody has a representative. People also have a right to be participants in our democratic experiment: to use their votes to determine who they will be represented by, and run for office themselves if they are unhappy with their choices. None of this is possible if they don’t know what district they reside and vote in, because there are no districts.

So if there have to be districts, and the existing districts are unconstitutional, then either the unconstitutional districts remain in place, or the legislature draws new, compliant districts, or the court draws new, compliant districts. Those are the only options.

And if the legislature chooses to take itself out of play, then there are only two options: either the unconstitutional districts remain in place, or the court draws new, compliant districts. If the second choice doesn’t exist, then the court’s power to rule the existing districts unconstitutional is toothless and meaningless - mere words that the legislature can overrule merely by ignoring them.

But this is the implication of Bone’s position: that the legislature gets to veto the court’s ruling on the constitutionality of the districts.