As a resident of Communist East Germany, Bertolt Brecht understood better than most writers in the 20th century how fragile representative democracy can be and what a serious threat to our form of government looks like. And as his poem above points out, the key requirement of representative democracy is that the government be responsible to the people. For that to happen, elections have to be regular and they have to be fair. There can’t be any barriers to participation in elections and those elections need to be conducted under rules that give everyone an equal voice. There also has to be a way to enforce those rules which, in America, has always meant a strong and independent judiciary.
By passing SB22 this week, the Republican members of the Pennsylvania Senate, with the connivance of two Democrats, created a two-part existential threat to representative democracy in Pennsylvania.
The first part is a misguided redistricting “reform” plan created by Republican Senator Folmer and supported by activists who had not thought through the consequences of that plan.
That part of SB22 was bad enough. But then, at practically the last minute, the Republicans added a second part—a plan to create judicial districts for the Supreme Court and the two second-level courts, the Commonwealth Court and Superior Court. This plan would enable the majority party in the General Assembly to exert undue pressure on the members and decisions of these courts by creating gerrymandered districts and through other means.
Right now, the members of all these courts are elected in statewide elections. The Republicans propose that we elect them in regional districts instead. If carried out, there would be seven Supreme Court Districts, one for each member of the Court and so on for Commonwealth Court, which now has nine members, and Superior Court, which has fourteen.
The Republicans gave a number of reasons for creating judicial districts. I’m not going to address those reasons here and will return to them in another blog post for the simple reasons that (1) these reasons are utterly specious, and (2) they have nothing to do with the reason the Republicans seek to create judicial districts.
The real goal for creating judicial districts is to gerrymander the district lines so that more Republicans can be elected to the Court. Republicans have a serious problem in statewide judicial elections — Democrats far outnumber them. That doesn’t mean Republicans can’t get elected to one of the statewide courts. When they put up strong candidates who run good campaigns, they often win. And they often win elections to the courts that people don’t know as much about. They hold seven of nine seats on the Superior Court and eight out of fourteen on the Commonwealth Court. But in the elections to the Supreme Court, Democrats have had an advantage. Democrats now hold five out of seven seats on the Supreme Court.
Republicans find the Democratic majority on the Supreme Court intolerable right now because it just acted to overturn the 2011 gerrymander of congressional districts. Republicans don’t want a Democratic Supreme Court to make it more difficult for them to stack the deck in their favor. They don’t want any Supreme Court, whether Democratic or Republican, to get in their way. For they have been trying to carry out a slow-motion coup for over a decade, one that would allow them to control the political life of this state without the bother of having to win fair elections.
The recent congressional redistricting decision wasn’t the first time the Supreme Court overturned the Republicans’ plans to twist the electoral process in their favor. For over two decades, Republicans have been seeking to gerrymander the state legislative and congressional districts in their favor. Earlier in this decade, a Republican-majority Supreme Court overturned a state legislative districting plan that was gerrymandered in favor of the Republicans. (The current map, however, is not much better.) And the Court has also checked other rules put in place by Republicans in the General Assembly to stack the deck against Democrats. This includes the notorious plan to require government-issued photo IDs of voters, which would make it more difficult for many low-income, urban, and elderly citizens (who are more likely to support Democrats) to vote.
Republicans in the General Assembly, in other words, don’t want to be limited by the Supreme Court. So how will creating judicial districts give Republicans control over the Courts? In two ways.
The first is to gerrymander the judicial districts. What they will do with the Supreme Court, for example, is to draw lines that try to pack Democratic voters into three seats (most likely one centered on Pittsburgh and two centered on Philadelphia and its suburbs) and then to spread Republican voters among the other four districts with the hope of holding a 4-3 margin on the Supreme Court. The same kind of gerrymandering could take place for Superior and Commonwealth Courts.
The second, even more sinister way the Republicans will try to gain control over the Court is to use the transition process to judicial districts to benefit their own party and particular justices and judges rather than others.
Under the current constitutional rules, when the ten-year terms of the justices and judges of our appellate courts end they must run in a retention election in which voters decide whether to keep them on or not. They are almost always retained—only once in recent decades has a justice of the Supreme Court lost his effort to be retained.
Under the Aument amendment, when the terms of the current justices or judges who have been elected statewide come to an end, they do not run in a retention election but must run for reelection in one of the new districts. (Once the justices and judges are elected in a district election, however, they do run in a retention election at the end of their term.) Under the Aument amendment, the General Assembly can decide the order in which the new judicial districts are created.
(In what follows, I’m going to focus on the shenanigans made possible by the Aument amendment for Supreme Court elections, but much the same can happen for Commonwealth and Superior Court elections.)
Republican Chief Justice Saylor’s term ends in 2021 when he turns 75. At that point, if it is still dominated by Republicans, the General Assembly can decide where the first Supreme Court judicial district will be located and will no doubt make that a district that a Republican would be overwhelmingly likely to win.
And when Democratic Justice Baer’s term ends in December 2022 when he reaches 75, the Republicans can decide where to hold a second regional judicial election to elect a new justice. And they can again draw the lines any way they want and presumably will create another judicial seat with lines that make it impossible for a Democrat to win.
And they can keep doing this, election after election because there is no prohibition on a General Assembly majority changing the district lines for every judicial election. Every time a judicial term ends, the General Assembly can redraw the lines so that the open seat is one that only a member of the majority party can win.
When it comes to current justices who under the current rules would be up for a retention election, more shenanigans are possible. For example, Democratic Justice Kevin Dougherty, who is from Philadelphia, is up for retention in 2025. Under the Aument amendment, Justice Dougherty would have to run in a competitive election. And, if the General Assembly decided that the new judicial district created that year is, for example, centered in Erie, Justice Dougherty would simply be unable to run for reelection at all—unless he had moved to Erie. (And, even then, it is possible that the timing of residence rules and the drawing of election districts would make it impossible for him to do that.)
I could go much further in describing the possible ways a General Assembly could draw and redraw district lines to help one party and hurt another or to help one Justice win reelection or not during, and even after, the transition period to judicial districts. But let’s leave the head-spinning details behind and just say that by allowing the General Assembly to draw and redraw judicial district lines, the Aument amendment creates enormous potential for the General Assembly to decide who is on the Court. That also means that the Supreme Court justices, who would be aware of the potential for mischief, are likely to feel a great deal of pressure to not challenge the General Assembly.
That is how judicial independence that is so important to government in America would be compromised by the Aument amendment. And, as we have repeatedly seen in Pennsylvania, that judicial independence is critical to protecting us from other attempts by the majority of the General Assembly to twist the electoral process to benefit themselves.
Finally, let me address some possible checks on the power of the General Assembly to pressure the Supreme Court by monkeying with judicial districts.
Some commentary on the Aument amendment claims that the General Assembly won’t actually draw district lines but that this job will go to the so-called independent redistricting commission, assuming it is adopted by the electorate at the same time as the Aument amendment. That, however, is not how the amendment actually reads. (And I should add that the amendment is so badly written that it is not hard to understand why someone might read it that way.) The new Article V section 11 (C), read in connection with the existing sections of Article V, clearly says that the General Assembly will draw the lines. The new Article V section 11 (A) does say that district lines should meet the requirements for congressional districts, which means that they must be compact and contiguous. However, when we are talking about seven districts for the entire state, those requirements can be met by an almost infinite number of district lines, giving the General Assembly wide latitude for shenanigans.
The same Article V section 11 (C) in the Aument amendment also says that the General Assembly should draw lines “by law” and “with the advice and consent of the Supreme Court.” The phrase “by law” probably means that the governor can veto the General Assembly’s actions, though I’ve consulted at least one lawyer who wasn’t sure about that. (Also, at some point we will have a governor of the same party as the majority of the General Assembly and then possibly lose that check on the General Assembly.)
The requirement that district lines have the “advice and consent of the Supreme Court” might enable the members of the court to defend themselves against some of the ways that the General Assembly can exert pressure on them. But, again, it is not clear how this advice and consent would work. When it comes to drawing lines for lower courts, the General Assembly has created a process under law, in Title 42, Section 901, in which the Supreme Court can approve or reject district lines. If the General Assembly does not create such a process, we can’t be sure how the Supreme Court would exercise its power over judicial district lines.
Whatever lines the General Assembly might create could be challenged in the courts, up to the Supreme Court itself. That would be one way for the Supreme Court members to defend themselves against encroachment by the General Assembly. The question, however, is this: when the playing field has been tilted so decisively to the General Assembly, can we count on the members of the Supreme Court to stand up for their own independence?
And most importantly, we shouldn’t have to worry about that question or about all the uncertainties created by the Aument amendment. Republicans here in Pennsylvania and around the country are changing or bending the rules to expand their power. And they aren’t just changing the way elections are run. They are trying to undermine labor unions—see the Janus case and others, nationally, and the continued efforts in Pennsylvania to undermine collective bargaining especially for public employees. And they are trying to stack the courts—recall what happened to President Obama’s appointment of Merrick Garland and look at the far-right members of the federal courts appointed by our current president.
So, this is not the time to be debating the finer points of how far the majority in the General Assembly—which was in part created by gerrymandered state legislative districts—can or cannot go in expanding its influence over Pennsylvania’s appellate courts.
It’s time to recognize the plot the Republican majority is trying to carry out with the Aument amendment for what it is and say a firm “NO” to that plan, SB22.