Introduction: On January 22nd, 2018, the Pennsylvania State Supreme Court ruled that the state’s U.S. Congressional Districting Map was unconstitutional. Drawn up in the aftermath of the 2010 midterm elections, which led to massive Republican majorities in both chambers of the Pennsylvania Statehouse, the map reflected the political intentions of its creators. An effort to bolster GOP representation in Congress, the map added what some political scientists like Sean Trender of RealClearPolitics estimate three Republican seats.
In its decision, the Court particularly called out the practice of “packing”, where heavy Democratic majorities were confined to certain districts. Though geographic clustering is expected given that the Democratic majorities in the Commonwealth of Pennsylvania are largely centered around urban centers Pittsburgh and Philadelphia, the state also featured some truly comically drawn districts. One example would be the infamous “Goofy Kicking Donald Duck” district, which stretches from the Delaware River deep into the central part of the state while avoid certain extremely liberal, populated areas. These include the cities of Chester, which is largely working-class and black, and Swarthmore, a liberal college town.
Oddly-shaped constituencies are no stranger to American politics. In drawing the original map back in 2011, the Pennsylvania State Legislature engaged in the highly controversial yet ubiquitous practice of “gerrymandering”. The phrase was coined in the 1810s when Massachusetts Governor Elbridge Gerry signed a legislative districting map which featured a district that looked like a Salamander. A newspaper editor dubbed the district a “Gerry-Mander”, and the term was born. Interestingly enough, Gerry himself was unhappy with the outcome of the redistricting process, yet signed the bill to preserve political capital.
The decision of the Pennsylvania State Supreme Court is the latest in a series of judicial actions against gerrymandering. State legislatures have long tried to take advantage of the redistricting process to maintain power, dating back to the Supreme Court case Baker v. Carr (1962). The case decided that courts had jurisdiction over issues of redistricting and that it was the duty of all redistricting processes to ensure that the “one person, one vote” principle applied to the constituencies in question. Ever since, state and federal courts have held redistricting processes within their jurisdiction. It’s worth noting in this discussion that both major political parties have engaged in such practices, as seen by Maryland’s Third Congressional District which was drawn by Democrats.
The 2010 Midterm elections created an especially new challenge in redistricting case law. This election was a huge victory for the Republican Party which gained the GOP six Senate Seats, 62 House seats, and supermajority of Governor’s Mansions and Statehouses. Built off the backs of the “Tea Party Movement”, this represented the GOP’s strongest dabbling with populist elements to that point. Strong Tea Party support was motivated by everything from deficit hawks rallying support behind addressing major issues in national spending to anger at President Obama. The movement was accused of being racist and xenophobic by many of its political opponents, and it’s worth noting that 45% of Tea Party supporters believed President Obama was born in Kenya. Indeed, the movement would lay much of the framework for the rhetoric that Donald Trump would later use when he ran successfully for President in 2016, and Trump himself would ally himself with the movement.
Once in office, GOP legislators across the country would begin to create new legislative districts for the 2012 elections based of the 2010 census. Empowered by their mandate from voters, the GOP created such effective maps that despite losing the plurality of the 2012 midterm electoral vote, the GOP majority in the House of Representatives changed marginally. The Democrats gained 8 seats, a result which still gave the GOP a 33 seat majority in a chamber which simply require majority control. As a result, progressives, Democrats, and activists for legislative change began suing for reform in redistricting, yet struggled for a meaningful victory. This was evident in the Arizona Redistricting Commission case, where the Supreme Court ruled unanimously that variance in district population was allowed provided it did not exceed 10 percent.
Given this history, the Pennsylvania redistricting case represented a huge victory for civil rights groups, urban voters, and of course, the liberal intelligentsia that had spearheaded this fight against gerrymandering. Many of these organizations represented formerly marginalized voters, such as women and African-Americans, who had long been accustomed to the struggle for suffrage. This included the League of Women Voters of Pennsylvania, which led much of the legal battle against the gerrymandered map. Lawyers for the organization then stated, “There is no partisan gerrymandering exception to federalism.”
These events display how populism has manifested itself in the United States. The criticisms that many champions of liberal democracy have applied to “Illiberal democracies” such as Orban’s Hungary or Chavez’s Venezuela can be levied at individual American states. The process is largely the same: once the populists come into power, they enact institutional reforms to make it difficult for the opposition to regain power. In this case, it means creating legislative district maps targeted at preserving as many GOP seats as possible. As noted by Huq and Ginsberg, how can opponents of populism beat them in an electoral process built to their advantage?
It’s worth noting the rhetoric of the creators of these gerrymandered maps, both in Pennsylvania and elsewhere. Mike Turzai, State House Majority Leader in 2011 who would later claim that voter ID laws would guarantee a Mitt Romney victory in the state, once stated that “these new district maps would return power to the average Pennsylvanian”. Indeed, the entire slogan of the Tea Party movement rested on the idea that the movement needed to “Take Our Country Back”, a phrase that could be pulled out of Daniel Ortega’s campaign to retake the Presidency of Nicaragua. The goal of gerrymandering was to return power back to “the people”; those who were target electorate of the Tea Party Movement.
The nullification of this map makes it clear that liberalism has and will be a powerful tool in the fight against populism, despite its limitations. Writers like Sheri Berman correctly note that overreliance on “undemocratic liberalism”, which prioritizes the technocratic bureaucracy over democratic means and processes, is dangerous. No amount of Supreme Court/technocratic action can make up for the electoral process, which forces engagement with the needs and material conditions of the electorate. Furthermore, as seen in countries like Hungary, liberal institutions can get undermined to the point where only the description of “democracy” is necessary for public relations.
However, as this case proves, liberalism and its methods are vital in battling anti-democratic trends. The Judicial Branch at all levels can not only force states to change their electoral process as seen here, but affirm individual rights such as abortion in Roe v. Wade, or ban discriminatory practices in education, as seen in the Abbot decision in New Jersey. Through their willingness to engage in lawsuits, progressive advocates were able to change a 7 year old institution that had marginalized certain voters and empowered the incumbent party. To continue creating meaningful change in a turbulent political era, the defenders of American institutions must not hesitate to place their faith in our liberal framework.