As Chief Justice of Pennsylvania, I am very concerned by the reported filing of impeachment resolutions against Justices of the Supreme Court of Pennsylvania related to the Court’s decision about congressional redistricting.Do we need to bring yinz up to speed?
Threats of impeachment directed against Justices because of their decision in a particular case are an attack upon an independent judiciary, which is an essential component of our constitutional plan of government.
Here's a brief description of what's brought us to here (interestingly, it's from Dush's impeachment memo):
On January 22, 2018, the Supreme Court of the Commonwealth of Pennsylvania issued a per curiam Order (“Order”) in League of Women Voters of PA, et. al. v. The Commonwealth of PA, et. al., No. 159 MM 2017, holding that the Congressional Redistricting Act of 2011 (“Act”) “clearly, plainly and palpably violates the Constitution of the Commonwealth of Pennsylvania” and, on this sole basis, struck it down as unconstitutional. The Court further enjoined the future use of the Act in elections for Pennsylvania seats in the United States House of Representative commencing with the upcoming May 15, 2018 primary election.This is The Order that so offended Cris Dush.
The Court in its Order mandates that if the Pennsylvania General Assembly chooses “to submit a congressional districting plan that satisfies the requirements of the Pennsylvania Constitution, it shall submit such plan for consideration by the Governor on or before February 9, 2018.” The Court further held that “[i]f the Governor accepts the General Assembly’s congressional districting plan, it shall be submitted to this Court on or before February 15, 2018.”
The Opinion that followed presented the conclusion reached by the PA Supremes. The first paragraph reads:
It is a core principle of our republican form of government “that the voters should choose their representatives, not the other way around.” In this case, Petitioners allege that the Pennsylvania Congressional Redistricting Act of 2011 (the “2011 Plan”) does the latter, infringing upon that most central of democratic rights – the right to vote. Specifically, they contend that the 2011 Plan is an unconstitutional partisan gerrymander. While federal courts have, to date, been unable to settle on a workable standard by which to assess such claims under the federal Constitution, we find no such barriers under our great Pennsylvania charter. The people of this Commonwealth should never lose sight of the fact that, in its protection of essential rights, our founding document is the ancestor, not the offspring, of the federal Constitution. We conclude that, in this matter, it provides a constitutional standard, and remedy, even if the federal charter does not. Specifically, we hold that the 2011 Plan violates Article I, Section 5 – the Free and Equal Elections Clause – of the Pennsylvania Constitution.Article 1, Section 5 of the PA Constitution reads:
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.And the Court builds to its conclusion by taking a deep look at that clause and what it means. Like this part:
Thus, Article I, Section 5 guarantees our citizens an equal right, on par with every other citizen, to elect their representatives. Stated another way, the actual and plain language of Section 5 mandates that all voters have an equal opportunity to translate their votes into representation. (page 100)Then a few pages later we read:
Although our Court has infrequently relied on this provision to strike down acts of the legislature pertaining to the conduct of elections, the qualifications of voters to participate therein, or the creation of electoral districts, our view as to what constraints Article I, Section 5 places on the legislature in these areas has been consistent over the years. Indeed, nearly 150 years ago, in considering a challenge to an act of the legislature establishing eligibility qualifications for electors to vote in all elections held in Philadelphia, and specifying the manner in which those elections are to be conducted, we recognized that, while our Constitution gives to the General Assembly the power to promulgate laws governing elections, those enactments are nonetheless subject to the requirements of the Free and Equal Elections Clause of our Constitution, and, hence, may be invalidated by our Court “in a case of plain, palpable and clear abuse of the power which actually infringes the rights of the electors.” Patterson , 60 Pa. at 75.And then finally we get to this:
In answering the question of how elections must be made equal, we stated: “Clearly by laws which shall arrange all the qualified electors in to suitable districts, and make their votes equally potent in the election; so that some shall not have more votes than others, and that all shall have an equal share in filling the offices of the Commonwealth.” Id. Thus, with this decision, our Court established that any legislative scheme which has the effect of impermissibly diluting the potency of an individual’s vote for candidates for elective office relative to that of other voters will violate the guarantee of “free and equal” elections afforded b y Article I, Section 5. (page 109-110)
By placing voters preferring one party’s candidates in districts where their votes are wasted on candidates likely to lose (cracking), or by placing such voters in districts where their votes are cast for candidates destined to win (packing), the non-favored party’s votes are diluted. It is axiomatic that a diluted vote is not an equal vote, as all voters do not have an equal opportunity to translate their votes into representation. This is the antithesis of a healthy representative democracy.(page 118)It's this sentence above that, it seems to me (a non-lawyer, to be sure) to be at the core of the argument:
It is axiomatic that a diluted vote is not an equal vote, as all voters do not have an equal opportunity to translate their votes into representation.If I am reading this right (and again, I am NOT a lawyer), they're saying that by gerrymandering the districts into heavy Republican and heavily Democratic districts in order to (more or less) guarantee an outcome, the legislature diluted the voting rights of the R-voters in the D-zones and the D-voters in the R-zones. And that collective dilution is what conflicts with the Free and Equal Elections Clause.
But of course, because it gets in the way of the Republican snowflakes' hold on legislative power, any act making sure that everyone has an equal chance to elect their representatives is an unconstitutional power grab.
Your GOP at work, ladies and gentlemen.