Written by Jim Harbison; edited by Marilyn Go, Ryan O’Connell and Jacki Swearingen
In our recent articles, we have focused on voting rights issues in the battleground states that may be key to the outcome of the 2024 Presidential Election. We have covered developments, some of them adverse, in Georgia, Ohio, North Carolina, and Virginia. This month we turn to Pennsylvania, where the outlook for fair elections is more promising.
Courts have often played an important role in the protection of voting rights and fair elections. As a result, judicial elections have become significant contests in the struggle over voting rights. In the November 2022 elections, when Dan McCaffery won his race to become a Pennsylvania State Supreme Court Justice, the Court swung to a 5-2 Democratic majority. Had the Republican candidate won, the Democratic majority would have remained 4-3. Given the stakes, out-of-state political groups funneled large amounts of money into the race.
Election-reform advocates hailed McCaffery’s election as an important defense against potential gerrymandering and limitations of voters’ rights in the state. To understand why, we need to review some of the history of gerrymandering in Pennsylvania, a state that is split nearly 50-50 between Republicans and Democrats. The Pennsylvania Supreme Court has blocked repeated efforts to create highly gerrymandered electoral districts.
In the 2010 elections, a small group within the Republican Party launched Project REDMAP (short for Redistricting Majority Project), a targeted effort to fund key state election races across the country and gain control of state legislatures. Their data-driven, computerized approach succeeded, and it shifted the balance of power in numerous state governments, including Pennsylvania.
The Republicans won the Pennsylvania state House (previously Democratic-controlled) and the governorship, while retaining their majority in the state Senate. With this “trifecta” control, the Legislature drew redistricting maps in 2011 following the 2010 census that were extremely favorable to Republicans. One of the districts drawn was called one of the most gerrymandered districts in the country and was characterized as Goofy kicking Donald Duck. https://www.cbsnews.com/news/drawing-the-lines-on-gerrymandering/. The Republican governor, unsurprisingly, did not veto the maps.
The maps were used until a lawsuit was filed claiming the maps were gerrymandered. The case reached the Pennsylvania Supreme Court in late 2017. On January 22, 2018, the Court held that the maps drawn “clearly, plainly and palpably violate the Constitution of the Commonwealth of Pennsylvania” as partisan gerrymandering. The Court ordered that new maps be submitted to it by February 15, 2018. In a 138-page order issued on February 7, 2018, the Supreme Court provided detailed criteria for the Legislature to use in redrawing maps.
Despite the Court’s directions, the Legislature failed to draw fairer maps in a timely fashion. The Court then selected an outside expert to create more balanced maps, which were implemented. In the 2018 general election, the number of Republicans and Democrats in the state’s Congressional delegation, which had been a lopsided 13-5 in the last three general elections, swung to an even 9-9. The new, balanced delegation was much more in line with the even split among Pennsylvanian voters.
Dissatisfied with the State Supreme Court rulings, Republican lawmakers then attempted to change the system for electing justices. Previously, candidates ran on a statewide basis. However, the legislators sought to have judges elected from specific voting districts, even though justices on the Supreme Court have the duty to interpret the law for the entire state and do not represent a particular district’s constituents. Observers noted that some of the proposed districts were heavily Republican and suggested the intent was to change the Court’s composition.
Such a change is only possible by amending the PA State Constitution, which would require making it a state ballot initiative. To do so requires passage of such a measure by a 66.67% legislative majority or passage in two successive legislative sessions by a 50% majority. The bill was passed by the PA House and Senate by 50.5% and 52.0%, respectively, in the 2019-20 session, but failed to garner enough of a majority to allow it to come up for a vote in the 2021-22 session, in which the Democrats controlled the House, and the measure died.
In August 2023, the State Supreme Court issued a significant decision upholding Pennsylvania's expansion of mail-in voting in 2019, affirming another measure in favor of voting rights.
After the 2020 census results, in a required redistricting made more substantial because the number of Pennsylvania’s Congressional seats had declined from 18 to 17, the Legislature again revised the electoral maps. The Republican-controlled House and Senate created a highly gerrymandered set of districts. However, this time the governor, a Democrat, vetoed the legislation to implement the maps. This impasse brought the dispute over redistricting before the Pennsylvania Supreme Court again.
The Court ruled that the districts were overly partisan and appointed an expert to create fairer ones. In the 2022 election, with these new district lines in place, the Congressional allocation for Pennsylvania remained balanced, with eight Republicans and nine Democrats. Furthermore, the State legislature shifted to a Democratic majority, but by just one representative. Meanwhile, the Senate remained in Republican hands.
Although election reforms to expand voter access and protect the integrity of local election officials may be too slow in coming for some, this past September the progressive Democratic governor, Josh Shapiro, simplified automatic voter registration for Pennsylvanians when they obtain or renew a driver's license.
So, all in all, in Pennsylvania the prospects look encouraging for taking a balanced approach to protecting the right to vote and not instituting some of the new restrictions adopted in other battleground states like Wisconsin and Georgia. In the short term, courts have ensured that the districting process in Pennsylvania is fair.
Nonetheless, in the long run, having a truly independent commission draw the district lines, following the California approach, would be far superior, as we discuss in our Gerrymandering Primer. Common Cause gives Pennsylvania’s redistricting process a C+ rating because of this structural flaw in the system.
What is essential for classmates who reside in Pennsylvania is to remain vigilant and follow developments in the run-up to the 2024 election. There are still many politicians who, if left unchecked, would seek to enact legislation limiting voting access.
As you may remember, Pennsylvania was one of the states where there were sustained attempts to invalidate the 2020 Presidential election results through political maneuvers and frivolous lawsuits. The Brennan Center for Law and Justice at New York University provides a list and in-depth analysis of current challenges to election rights in the state.
Watch for developments in two key areas:
- Decisions on whether ballot curing is allowed, which is still being contested in the courts. One particular case to follow is the ruling by U.S. District Judge Susan Paradise Baxter in November 2023, which held that mailed-in ballots that arrive on time, but in envelopes without dates handwritten by Pennsylvania voters, should be counted. The decision is likely to be appealed, probably all the way to the U.S. Supreme Court.
- Legislative attempts to speed up the counting of absentee ballots, such as by allowing outer envelopes that can be opened ahead of election day. One such legislative proposal failed to pass in April.
As you may recall, Pennsylvania’s slow ballot counting created a great deal of confusion in the 2020 election, which election deniers seized upon as support for their unfounded claims of fraud.
Pennsylvania is truly an example of our democracy at risk, and we must make sure that the right to vote, particularly the use of mail-in ballots, is protected.
