Originally published by the Pennsylvania Capital-Star on February 24, 2022
Pennsylvania House Majority Leader Kerry Benninghoff, R-Centre, recently filed suit against the House district map produced by the Pennsylvania Legislative Reapportionment Commission (LRC).
Most advocates of fair districting think the new district lines are an enormous improvement over those currently in place for two reasons: they reflect the changing demographics of our commonwealth and they unwind two decades of extreme partisan gerrymandering, which I documented in a recent paper.
Predictably, they have been harshly attacked by Republicans. The background for their criticism is fairly obvious—while the new districts are, by standard metrics, still somewhat tilted in favor of Republicans, they are far less gerrymandered in their favor than the districts Republicans drew for themselves in the last two decades.
It is hard not to conclude that when it comes to legislative districts, like presidential races, Republicans are not willing to accept any rules that do not guarantee they win elections.
Benninghoff’s suit raises two substantive arguments that deserve attention—not least because they show us where the Republicans stand on critical issues before us.
The suit claims that there is no justification for focusing on statewide partisan fairness in drawing district lines, that is, for the effort to ensure that the proportion of the seats won by each party should roughly be similar to the proportion of votes won by each party statewide.
It holds that the goal of proportionality is not one of the standards explicitly mentioned in Article 2, Section 16 of the Pennsylvania Constitution, which says that districts should be compact, contiguous, equal in population and not divide county and local political entities unless “absolutely necessary.”
However, the state Constitution explicitly says in Section 2 of Article I that all power is inherent in the people and in Section 5 that “elections shall be free and equal and no power…shall…prevent the free exercise of the right of suffrage.”
And the structure of government set out in the Constitution is designed to create a republic, which, following James Madison’s definition in the Federalist Papers, is a government in which “all power is derived directly or indirectly from the people.”
The Pennsylvaania Supreme Court ruled in its 2018 decision on congressional maps that district lines that provide a permanent and substantial advantage to one party or another fundamentally violates the principles and design of the government created by the Pennsylvania Constitution.
We need unbiased districts to ensure that shifts in public opinion about parties and issues are registered in the composition of the General Assembly. Thus, avoiding partisan bias is one of the necessities that allows for some departure from explicit standards in Article 2, Section 16.
The second complaint about the House district map is that it overrides what is said to be the “natural political geography” of the state.
Critics of the LRC’s work say that maps should reflect a natural Republican political advantage created by the tendency of Democrats to live together in urban areas. This same argument is found in Commonwealth Court Judge Patricia A. McCullough’s decision to pick the House Republican plan for congressional districts.
One response to this claim is that the importance of eliminating partisan bias justifies some effort to override any natural Republican advantage. It is one of the necessary grounds for breaking district lines.
But, more importantly, there is no such thing as a natural political geography. That Democrats live together in urban areas is a product not of individual choices but of a long history of public policy that has led to the flight of a disproportionately white middle class from our cities to the suburbs and a concentration of disproportionately Black, poor, and working-class people in our cities.
Those public policies include transportation infrastructure that encouraged white flight; redlining, which undermined urban neighborhoods and limited the ability of Black people to accumulate wealth; racist deed covenants that, until recently, blocked Black people from moving to the suburbs; and zoning laws that make it difficult to build low-income housing in the suburbs.
Given this history, there is a strong case to be made that not only the Pennsylvania Constitution but the 14th amendment to the United States Constitution and the federal Voting Rights Act requires that the LRC make an effort to draw lines that minimize rather than recognize any so-called “natural” Republican political advantage.
This would go a long way in ensuring that voters in urban communities, and especially Black and Latino voters, are able to elect legislators who represent them, not just by being packed into small districts that overwhelmingly elect Democrats but by being spread into a larger number of districts where they can form coalitions with other voters to elect legislators who will represent their interests.
It shouldn’t surprise us that a Republican Party focused on exacerbating racial tensions in order to motivate their shrinking base of white voters to come to the polls would bolster their position in a redistricting case by relying on arguments that tacitly rest on conditions created by white supremacy.
But that it is one more reason to reject those arguments. A growing amount of research shows that breaking down racial segregation—which has been increasing, not decreasing, in recent years—is a key to reducing partisan division based on race.
We have a long way to go in addressing racial segregation, but a good first step is to draw legislative districts that encourage Black and white people to work together politically. That is what the LRC’s House district maps have done. The courts, as well as most voters. should applaud the commission members for that work.