What Fresh Hell Is This?

May 3, 2018

Senator Toomey RESPONDS To Another Letter (This Time Regarding Pennsylvania Gerrymandering)

Nothing to worry about. It looks like I am back in the good graces of Pennsylvania's junior United States Senator, Pat Toomey.

As it had been more than a month since Toomey had responded to one of my letters I was at the point where I was beginning to think that perhaps his responding to my letters had reached an end. But then I got an email response from Toomey's office and world was set right again and there was much rejoicing.

Yesterday, I got some snail mail (full text at the bottom of this blog post). So that's two responses from Toomey in less than a week.

This new letter begins thusly:
Thank you for contacting me about the Pennsylvania Supreme Court's recent ruling regarding Pennsylvania's congressional map. I appreciate hearing from you.
He still appreciates hearing from me. See? No reason to worry.

So which letter was Toomey answering? This one, from March 20. It was about Senator Toomey's response to the State Supreme Court's striking down as unconstitutional the Congressional Redistricting Act of 2011. Here's what I wrote:
The Hill reported that you referred to the recent State Supreme Court ruling striking down the Congressional Redistricting Act of 2011 as a "blatant, unconstitutional, partisan power grab that undermines our electoral process." You also refused to reject the idea of impeaching members of the State Court for that reaching that decision. The State Supreme Court in striking down the act, however, said that it "clearly, plainly and palpably violates the Constitution of the Commonwealth of Pennsylvania." It was from that point alone (which is to say, by relying only on state law), they found the Redistricting Act to be unconstitutional.
The US Supreme Court refused to overturn that ruling only one day before so I asked two related but separate questions:
[D]o you still think that the State Supreme Court decision is unconstitutional? Do you still think it appropriate for state legislators to discuss impeachment for deciding that the then-current redistricting plan unconstitutionally favored one party (yours) over the other?
 In his response to me, Senator Toomey reiterated his charge that the State Supreme Court is guilty of a "power grab of breathtaking audacity and overreach" while completely avoiding the question about impeachment.

So guess it's more of a half response than a full response. Oh, well.

But let's take a look at what Toomey says anyway. He writes:
In his dissent to the court's initial ruling, Chief Justice Thomas Taylor stated that "the crafting of congressional district boundaries is quintessentially a political endeavor assigned to state legislatures by the United States Constitution." Pennsylvania's current congressional map was written an approved by majorities in the Pennsylvania House and Senate, and signed by Pennsylvania's governor. Democrats in the Pennsylvania House voted for the map and it would not have been approved without their support, The proper role of judges is to enforce the law, not to legislate their political beliefs from the bench, which is clearly what happened in this case. As such I strongly disagree with the Pennsylvania Supreme Court's ruling and its redrawing of the Pennsylvania congressional map.
Wow, a clear answer from Senator Toomey. That doesn't happen often. Too bad it's built on a strawman. Look at the penultimate sentence:
The proper role of judges is to enforce the law, not to legislate their political beliefs from the bench...
Now look at the opening paragraph of the majority decision invalidating The Act:
This adjudication was based upon the uncontradicted evidentiary record developed in the Commonwealth Court, wherein the Petitioners established that the 2011 Plan was a partisan gerrymander and that this gerrymander was extreme and durable. It was designed to dilute the votes of those who in prior elections voted for the party not in power in order to give the party in power a lasting electoral advantage. In stark contrast, Article I, Section 5 of our Constitution provides: “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.” Pa. Const. art. I, § 5. On this record, it is clear that the 2011 Plan violates Article I, Section 5, since a diluted vote is not an equal vote.
You'll note that the decision doesn't take a partisan political position. It states that as the act was designed to dilute the voting power of all of those who voted for the losing side in previous elections (regardless of which side won/lost in that election) it's unconstitutional for that point alone.

The decision was to protect the voting rights of everyone.  That's what Toomey characterized as a "blatant, unconstitutional, partisan power grab that undermines our electoral process" - the idea that everyone's vote should have equal weight.

But this part is the most curious:
A lawsuit seeking an injunction against the map drawn by the Democrat majority on the Pennsylvania Supreme Court has been filed in federal court.
On the one hand, I would have thought that the U.S. Supreme Court's refusal to get involved in a strictly state matter would be enough to weaken any further lawsuits. However, as Bruce Ledewitz, professor of Law at Duquesne University told me in an email:
Supreme Court rejection of a lawsuit does not preclude a federal lawsuit in a lower federal court.
And while the case seems to be settled, according to The Brennan Center, there's still some judicial life left in the gerrymander-defenders. Some further appeals to the Supreme Court (the same court that rejected earlier appeals) and so on.

I do have to say, however, that since the PA Supreme Court decided this state issue based on the Pennsylvania Constitution, it's oh so interesting to see how the "states' rights!!" crowd is looking for an intervention from the big bad fed'rul guv'ment.

And we all know what side Senator Toomey is on this: States Rights! (just as long as it doesn't interfere with the GOP's hold on power). Good going, Pat.

FULL TEXT OF SENATOR TOOMEY'S LETTER:
Dear David, Thank you for contacting me about the Pennsylvania Supreme Court's recent ruling regarding Pennsylvania's congressional map. I appreciate hearing from you.

On January 22, 2018, the Pennsylvania Supreme Court ordered the Pennsylvania General Assembly to redraw the Commonwealth's congressional map by February 9, 2018 even though the map had been in place for six years and was enacted into law with bipartisan support by the General Assembly. In a power grab of breathtaking audacity and overreach, the court simultaneously arrogated to itself the authority to redraw Pennsylvania's congressional districts if Governor Tom Wolf failed to approve a new map, drawn by the Pennsylvania state legislature, by February 15, 2018. After Governor Wolf rejected the legislature's proposed map, on February 19, 2018, the Pennsylvania Supreme Court issued a completely new congressional map that it drew.

In his dissent to the court's initial ruling, Chief Justice Thomas Taylor stated that "the crafting of congressional district boundaries is quintessentially a political endeavor assigned to state legislatures by the United States Constitution." Pennsylvania's current congressional map was written an approved by majorities in the Pennsylvania House and Senate, and signed by Pennsylvania's governor. Democrats in the Pennsylvania House voted for the map and it would not have been approved without their support, The proper role of judges is to enforce the law, not to legislate their political beliefs from the bench, which is clearly what happened in this case. As such I strongly disagree with the Pennsylvania Supreme Court's ruling and its redrawing of the Pennsylvania congressional map.

A lawsuit seeking an injunction against the map drawn by the Democrat majority on the Pennsylvania Supreme Court has been filed in federal court.

Thank you again for your correspondence. Please do not hesitate to contact me in the future if I can be of assistance.

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