August 2025 Docket Review (and Special Comment)
This month, the Court issued 3 precedential opinions and 5 grants of allocatur, summarized and accessible below.
Although I would ordinarily dive a bit deeper into the cases, I want to use this space for what seems like a more important purpose this month. As anyone reading already knows, several of the Justices are standing for retention this year, and, politics being what it is, there are some claims about the Court being circulated that are heavy on rhetoric and wrong on facts.
One of the more brazen ones is a sustained attack on the Court’s 2018 decision in League of Women Voters v. Commonwealth, which held that the then-existing Congressional district plan violated the Free and Equal Elections Clause of the Pennsylvania Constitution, part of Pennsylvania’s organic charter since 1776, which prohibits the use of state power to artificially inflate one group’s political power or diminish another’s.
The basic theory of the attack is that the Court is partisan and intervened to help Democrats win a few more Congressional seats in the 2018 midterm elections. By way of example, this week, State Senator Dan Laughlin, a self-described moderate Republican from Erie County, authored an editorial in a Pittsburgh newspaper (that I will not name so as to avoid crossing a picket line of journalists, on Labor Day no less) comparing Texas’ Republicans’ current mid-census redistricting bill, which is avowedly designed to boost the number of Republican Congressional seats, with the Court’s 2018 decision that the then-existing map was unconstitutional. Senator Laughlin goes on to proclaim that redistricting is inherently partisan, and that instead of “chasing the illusion of a purely non-partisan process,” “we should accept that partisanship exists and design a system that makes it transparent, balanced and competitive.” Senator Laughlin proposes a process whereby the “two major parties” “agree to a strict set of parameters that require districts to be contiguous and reasonably compact, mandate compliance with the Voting Rights Act and other applicable laws and preserve communities of interest where possible,” then, “within those guardrails, each side” can take turns and “use its ‘pick’ to represent its priorities.”
I hope that Senator Laughlin is well-meaning and earnest in seeking a fairer electoral system. Indeed, I think it is consistent with some of his earlier work, like advocating for the inclusion of independent voters into our primary system. But the overall theory that League was partisan and this particular comparison get the facts wrong and miss the point: people, not politicians and parties, are supposed to be selecting the government.
Let’s start with the facts. in 2011, Pennsylvania Republicans created a redistricting map as part of “Project REDMAP,” a nationwide plan to use backlash over the election of President Barack Obama to take control of state legislatures in time to adopt as many partisan gerrymanders as possible with the object of increasing Republican Congressional seats. Because of Pennsylvania’s political geography, and the residences of incumbent Republican members of Congress, this meant that they had to dispense with ordinary redistricting criteria — for example, creating geographically compact districts and not dividing counties and municipalities into two districts — to optimize Republican advantage. As a result, the 2011 map was replete with bizarrely shaped, sprawling districts that routinely split up communities, particularly in Southeastern Pennsylvania:
By way of illustration, one district was only geographically contiguous by virtue of a nursing facility at one point and a steak-and-sea restaurant at another, and one district, the 7th, was panned in the national media as resembling “Goofy kicking Donald Duck.” These bizarre features were almost uniformly designed to either pack as many Democratic voters as possible into a single district so as to keep them out of other districts where Republicans could win, or divide Democratic voters that would otherwise win a district so that Republicans could win both. Overall, they were designed to ensure that although Pennsylvania voters were about evenly split, their votes would almost always lead to the election of far more Republicans than Democrats.
In 2018, a voting rights group, the League of Women Voters, sued the Commonwealth, arguing that the 2011 map violated the constitutional guarantee of free and equal elections by essentially using district lines to artificially inflate Republican power by artificially deflating Democratic votes. The theory had significant historical support: the Free and Equal Elections clause was first adopted in 1776 by “radical” patriots frustrated with longstanding attempts by conservative loyalists to artificially support their power: for example, the limitation of the right to vote to landowners (which kept working class voters away from the polls) and the refusal to recognize new Western counties (which, because legislative seats were based on counties at the time, kept Eastern aristocrats in power). The case proceeded to a hearing at which expert after expert testified that the 2011 plan subordinated all of the ordinary redistricting criteria to the quest for partisan advantage. Ultimately, the Court agreed with the League that dispensing with traditional redistricting criteria and diluting voters’ power to obtain a partisan advantage could not be squared with the Clause.
The Court was highly reluctant to step into mapmaking, even though the Congressional primary election was impending. Accordingly, it invited the Legislature to make a new map that complied with constitutional commands. The Legislature failed to do it. So the Court adopted a remedial map that optimized ordinary redistricting criteria and also avoided diluting votes to the extent reasonably possible so that the 2018 primary could proceed:
Anyone with vision can see the difference: creating a map optimizing ordinary redistricting criteria and avoiding vote dilution created a map without the bizarre shapes and fractures of the old one. More importantly, there was some rough proportionality between statewide vote totals and the composition of the Congressional delegation, ableit even under the new map, Republicans still had a structural advantage: just not the totally dominating one the 2011 map engineered.
From the day the Court adopted the 2018 map, the Legislature was free to adopt a new one that complied with the law. It failed to do it.
Later, after the 2020 census, Pennsylvania lost a Congressional seat, meaning the Legislature had to draw a new plan with one fewer district, and it failed to do that as well. As a result, several groups of voters, as well as numerous political actors, based on a 1992 case where a similar impasse occurred, brought a lawsuit to ask the court’s to adopt one. The suit was initially dismissed in hopes that the legislature might act. But it failed to do so. And as time progressed, the case was refiled and heard so that a new map could be in place ahead of the 2022 primary elections. As a preliminary matter, it’s worth noting that because the 2018 decision prohibited excessive partisan gerrymandering and gave a methodology for avoiding it, virtually every party’s proposed map was relatively reasonable both in terms of observing the ordinary redistricting criteria and in avoiding vote dilution. In any event, after the case made its way to the Court, at oral argument, every Justice on the bench expressed significant discomfort at being in the position of selecting another map. And after a full day of argument by everyone interested, the Court ultimately selected a map that one of the voter groups submitted, which was designed to avoid political disruption by keeping the districts the same insofar as was absolutely necessary to comply with the law and to avoid dilution:
Another set of Justices wrote separately to explain that they would have instead adopted a map that a different group of voters designed to mathematically optimize the redistricting criteria and avoid vote dilution:
It is noteworthy that every Justice on the Court declined to adopt maps offered by partisan and governmental officials entirely.
And again, since early 2022, the Legislature has been free to adopt a map that complies with the Constitution. It has failed to do it.
At the risk of taking you all on a long walk for a brief view, the problem with the attack on the Court as partisan and Senator Laughlin’s comparison of the Texas partisan gerrymander with the Court’s decisions is that it’s just not true. The Court in League of Women Voters didn’t adopt or sanction a Democratic gerrymander at all. That would have looked something like this:
Instead, the Court’s decision stopped partisan gerrymandering in Pennsylvania in service of individual voters’ constitutional rights based on a judicially conservative, originalist reading of our Commonwealth’s constitutional text, history, and values, by stopping politicians from artificially increasing or decreasing voters’ power to turn their votes into representation. By contrast, Texas is, and other Democratic and Republican states will likely soon be, shifting it into overdrive. In short, the Court has done its level best to ensure that every Pennsylvania voter, whether a Democrat or a Republican or a third-party member or unaffiliated voter, has an equal chance at turning support for a candidate into representation. Partisan gerrymanderers elsewhere are doing their level best to make sure that they get to decide who wins and the voters support doesn’t actually matter.
Let us not confuse the cure with the disease.
With the facts out, it is easy to see that Senator Laughlin’s view that redistricting is inherently partisan suffers from a poverty of information and imagination. The Court has shown us, twice, that it doesn’t have to be. And even if the process were inherently a partisan one, Senator Laughlin’s proposal misses the point. The power to elect representatives does not belong to politicians and their parties: it belongs to the people. The problem is not that one party gets more opportunities to marginalize the other’s voters’ electoral power; the problem is that they are doing it at all. The Court’s League of Women Voters decision puts a stop to it, which, while perhaps disempowering for those charged with drawing the map, has protected the rights of all Pennsylvanian voters.
In the end, I certainly applaud Senator Laughlin’s desire for progress. But that progress must start with a firm recognition of the truth, and truth is that the Court’s involvement in redistricting has made it better, not worse, and that it is up to the people to choose their representatives; not the other way around.
Precedential Opinions
Commonwealth v. Walker, 13 WAP 2024 (Opinion by Todd, C.J.) (holding that a trial court may permit inquiry into whether a juror can follow the principle that uncorroborated testimony alone is sufficient to permit conviction)
See also Concurring Opinion by Wecht, J.
Penncrest Sch. Dist. v. Cagle, 31 WAP 2023 (Opinion by Mundy, J.) (reaffirming the test for whether a record is public pursuant to the Right-to-Know Law)
Grant v. Grant, 18 WAP 2024 (Opinion by McCaffery, J.) (holding a joint tenant’s quitclaim deed to herself did not sever the joint tenancy)
Allocatur Grants
Whittington v. Daniels, 148 MAL 2025 (granting review to consider whether a plaintiff’s failure to timely file a complaint in a defendant’s appeal from a magisterial-district-court decision reactivates the running of the applicable statute of limitations)
Commonwealth v. Brashear, 180 MAL 2025 (granting review to consider whether the Legislature’s use of “residence” and “address” in different sexual offender registration requirements warrants acquittal of an offender who provided his building’s street address, but not his room number under the provision using “residence”)
Allegheny Cnty. v. Allegheny Cnty. Prison Employees’ Independent Union, 359 WAL 2024 (granting review to consider the jurisdiction and standard of a grievance arbitrator to evaluate whether an employer waived the issue of whether a grievance was contractually untimely)
Ansell v. Charah Solutions, Inc., 39 WAL 2025 (granting review to consider questions of administrative remedy exhaustion and equity in the context of a nuisance case)
Commonwealth v. Burse, 103 WAL 2025 (granting review to consider the Superior Court’s interpretation of the word “altered” in the context of the criminal prohibition on tampering with physical evidence)
