Can State Courts Cure Partisan Gerrymandering: Lessons from <i>League of Women Voters v. Commonwealth of Pennsylvania</i> (2018)

Abstract

In League of Women Voters et al. v. Commonwealth of Pennsylvania et al. (2018), the Pennsylvania Supreme Court struck down that state’s congressional plan as an unconstitutional partisan gerrymander. It did so entirely on state law grounds after a three-judge federal court had rejected issuing a preliminary injunction against the plan. The aim of this essay is to examine the implications of LWV for future partisan gerrymandering litigation. In particular, we look toward the applicability of the Pennsylvania court’s approach to other potential partisan gerrymandering challenges brought under state law, especially those in the twelve states whose state constitutions have provisions essentially identical to the one relied upon by the Pennsylvania Supreme Court, and in states with similar provisions. We pay particular attention to how the Court made use of the expert witness testimony in the case, relying on some of it, while rejecting or critiquing the applicability of other elements, since such a discussion can inform future litigation in state courts drawing on the LWV opinion for ideas. In our concluding discussion we contrast the criteria used to evaluate partisan gerrymandering by this court with those used by federal courts, and we look at how it may impact the decisions of legislators about line drawing in 2020.