Case Summary

In 2017, several Pennsylvania voters filed a state lawsuit against various state election officials challenging the state’s 2011 congressional redistricting plan as a partisan gerrymander in violation of the Pennsylvania Constitution’s Free and Equal Elections Clause, which states “Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” Unlike previous partisan gerrymandering challenges, which were based on various provisions of the U.S. Constitution, plaintiffs here alleged the plan violated this state constitutional provision by ignoring the state’s traditional redistricting criteria to maximize Republican electoral advantages.

  • On January 22, 2018, the Pennsylvania Supreme Court issued an order striking down the congressional plan as unconstitutional under the Free and Equal Elections Clause, adopting the state’s traditional redistricting criteria as a standard for evaluating state constitutional partisan gerrymandering claims. The Court barred the plan from use in future elections, enjoined the state from proceeding with the May 15, 2018, primary elections as scheduled, and gave the General Assembly until February 9, 2018, to pass and send a remedial plan to the Governor that met certain criteria laid out in the Court’s order. If the Governor accepted the plan, the Court ordered it be submitted to the Court by February 15, 2018; if either failed, the Court would proceed to implement a remedial plan of its own.
  • On January 26, 2018, the Court appointed Nathaniel Persily as the Court’s advisor to assist in creating a remedial congressional plan, if necessary.
  • On February 7, 2018, the Court filed its full opinion explaining its January 22 order.
  • On February 19, 2018, after the General Assembly failed to pass a remedial plan by its deadline, the Court issued an opinion and order adopting the Court’s own remedial congressional plan for use in the 2018 election.
  • On February 27, 2018, the legislative leaders-intervenors filed an emergency application for a stay pending resolution of appeal with the U.S. Supreme Court, which was denied on March 19, 2018.
  • On June 21, 2018, the legislative leaders-intervenors filed a petition for writ of certiorari with the U.S. Supreme Court asking whether the Pennsylvania Supreme Court violated the U.S. Constitution’s Elections Clause by assuming authority over the congressional redistricting process based upon their interpretation of state constitutional provisions not related to redistricting. SCOTUS denied certiorari on October 29, 2018, effectually blessing the Pennsylvania Supreme Court’s decision.

Significance: This case marked the first time that a state's electoral districts were struck down as a partisan gerrymander based upon a State Constitution's "Free and Equal Elections" Clause, a ruling that the U.S. Supreme Court seemingly blessed when it denied certiorari in this case in 2018 (Turzai v. Brandt, 139 S.Ct. 445 (2018)). In light of the U.S. Supreme Court's ruling in Rucho v. Common Cause that federal courts lack jurisdiction over partisan gerrymandering claims, and with twenty-nine other states' constitutions containing "Free Elections" Clauses similar to Pennsylvania's, these clauses could provide potential avenues for future litigants to bring partisan gerrymandering claims in state court.

Case Library

Pennsylvania Supreme Court - No. 159 MM 2017 [178 A.3d 737 (Pa. 2018)]

U.S. Supreme Court - Nos. 17-1700; 17A909 [Turzai v. Brandt, 139 S.Ct. 445 (2018)]