Everything you need to know about judicial redistricting

The Pa. GOP wants absolute power (and knows exactly how to get it)

It’s power-grabbing bullshit and it belongs in the trash. This is all on earth you need to know about judicial redistricting.

Officially, judicial redistricting is a resolution to amend the Pennsylvania Constitution to allow the state legislature to divide the Commonwealth into a number of judicial districts corresponding to the three statewide appellate courts. Like all proposed amendments to the state Constitution, it is required to pass the legislature in identical form in two consecutive sessions—that means no amendments to the amendment—and then appear as a ballot measure for approval by voters. The resolution passed last session and it is all but guaranteed to pass again this session. It will likely on the ballot for a vote in this year’s primaries.

Judicial redistricting represents a significant change from the current constitutional rules, under which judges are elected through statewide elections in which all eligible voters are able to participate. (Pennsylvania’s judiciary is pretty unique in this way, in that it is 100% appointed by the electorate.) Major proponents of the change, all of whom are Republican, argue that the statewide election method unduly favors judicial candidates from Philly and Pittsburgh and systematically prevents what they call “geographic diversity” on the bench. Switching to a district-based system in which every district elects one (and only one) judge per court—fifteen districts for the Superior Court, nine for the Commonwealth Court, and seven for the Supreme—would assure rural PA voters an equal say in the judiciary and more rural candidates a fair shake at judgeship.

So they say. Opponents argue that the district system arrogates the power of the people to choose their judges, effectively imposing a system of judicial gerrymandering in which left-liberal judges are quarantined in a minority of districts while conservatives maintain theoretically permanent control of the majority. Under the regional election system, furthermore, each judge would be inappropriately beholden to the interests of their constituents, or to the interests of their financial backers, rather than the benefit of all Pennsylvanians. That kind of compromise of judicial integrity, opponents conclude, ought to be impermissible in a fair society.

In pursuit of “diversity”

There are a number of problems with the idea of judicial redistricting as a whole, beginning with its rather awkward foundational logic. It is true that Philadelphia and Allegheny Counties make up about 20% of the state population and 50% of the judiciary, as the pro-redistricting crowd points out, and it is true that that is nominally a disproportion. But it isn’t really clear that the statewide popular vote is the cause of this disproportion. You could just as well argue that the reason so many judicial candidates come from the cities is because that’s where opportunities in the legal field are. In that case, the problem is not a voting problem at all, but a problem of access to legal education and the legal profession more generally. Which is just not something you can solve in the ballot box.

It’s not clear what “geographic diversity” means in practice anyway. Russ Diamond, primary sponsor of the resolution and judicial redistricting’s official floor salesman, denies the charge that it is an “outcomes-based” measure intended to bring more GOP judges to the bench. It isn’t about expanding the Second Amendment or anything, as Mr. Diamond recently told to a meeting of the House Judiciary Committee. It’s about diversity, both in the sense of bringing new regional voices to the bench and breaking up the overwhelmingly male and white judicial majority.

The latter claim is contestable. A 2019 study by the Brennan Center finds that candidates of color are less likely to win partisan judicial elections and that judges of color are more likely to be challenged or recalled than their white counterparts. There are also noteable disparities in fundraising amounts and purchasing power (i.e., votes per dollar spent) across race and gender, suggesting that it will only become harder for women and people of color to win in increasingly high-budget judicial races. An appointive system, in which the executive selects the judiciary, is better disposed to promote race and gender diversity than elections of any kind.

The most likely scenario under judicial redistricting is not that bona fide regional types will come onto the bench with their homegrown judicial philosophies and shed a new light on the Commonwealth’s legal questions, though Mr. Diamond likes to pretend that it is so. What will actually happen is that moneyed elements on both sides of the partisan divide will participate in ideology farming of the elite law school stock: picking out young upstarts who can ply the kind of analysis that the party line requires, shipping them out to the far reaches to bide their one-year residency requirement for candidacy, then blasting them into judgeships with budgets higher than most people’s lifetime earnings. There is no reason to believe it would be otherwise than this bleak hell, no reason to believe that these races would be honest or fair, and no reason to believe that they would produce any kind of diversity worth mentioning. All Mr. Diamond’s proposal would do is make every race for judgeship into an arms race of a few PACs’ favorite check-signing pens—the singular question of how much money is behind you.

A voting rights “crisis”

At the heart of judicial redistricting there is also this legalistic argument about disenfranchisement, presumably as an attempt to make the region-based system seem inevitable. This argument is—not to mince words, here—almost impressively bad. Its central assertion is that in every statewide judicial election, rural votes for rural candidates are systematically diluted by city votes for city candidates. This, of course, refers to that well known voting rights crisis referred to as “losing,” which in certain Republicans’ minds the Constitution can and should provide protections against. Except statewide judicial elections have handed the GOP control of both the Superior and Commonwealth Courts, as well as the Supreme Court until 2015.

Even if you take the voting rights argument in good faith, there is little chance that judicial redistricting would provide a meaningful remedy. Say, for example, that your civil appeal has come before the fifteen judges of the Superior Court. Under current law, you have had the opportunity, at least provisionally, to participate in the selection of all fifteen judges on the panel. Judicial redistricting, by contrast, would guarantee that all but one of these judges were elected in races you had no power to take part in. That pretty clearly poses a conflict with the right to a fair trial—or, at the very least, it opens courts up to a high volume of motions to appeal on the basis of an unfair trial. And if there’s one thing that the court system doesn’t like, it’s a high volume of what it often sees as frivolous appeals.

Likewise, even if you accept the GOP’s concern about fair and equal representation, you have to at least wonder why we’re talking about a relatively narrow procedural change rather than a comprehensive overhaul of voting rights. That would be the ideologically consistent position, after all. Three of the lawmakers who have signed on to the resolution—David Rowe (District 85), Rich Irvin (District 81), and Tommy Sankey (District 73)—come from districts that would not have sufficient poplations to even be districts if not for prison gerrymandering. (Prison gerrymandering, if you aren’t familiar, is when people who are imprisoned in a given legislative district are counted towards the population of that district rather than the districts where they actually are from.) None of these three, however, showed any interest in supporting legislation last year that would have ended the practice and ensured equal legislative representation for all. If the animating motive behind judicial redistricting is equal representation, wouldn’t the abolition of prison gerrymandering have to follow? Wouldn’t voting rights for the incarcerated have to follow?

Proponents of judicial redistricting obviously have no intention of pursing voting rights for everyone, because anything that is not outright voter suppression is an intolerable threat to them. They know that all their grandstanding about representation and diversity is a bunch of concern-trolling bullshit. Most of all, though, they know that their galaxy-brain claims about disenfranchisement—like their increasingly antidemocratic governing strategy writ large—wouldn’t hold water with any court worth its fairly elected salt. Which is exactly why the courts must be changed.

Really, the whole reason this judicial redistricting idea gained steam among Republicans is that they wanted to do some very blatant gerrymandering on PA’s U.S. Congressional districts in 2018 and the PA Supreme Court told them it was unconstitutional. After much huffing to the press about the ills of our “activist” Court, forceful denials of the gerrymandering charge, and an ill-conceived attempt to impeach four of the state Supreme Court justices, Republicans turned around and introduced this measure that would effectively gerrymander the Court itself.

The timing isn’t exactly tactful. Personally speaking, if I wanted to subvert the consent of the governed after being very publicly caught trying to subvert the consent of the governed, I would bide my time a little, wait a couple years so people could forget that I’m the guy who wants to do autocracy. I might even pass some mildly populist economic reforms to dupe the public into believing that I care about them. But I am not the Pennsylvania GOP, and the Pennsylvania GOP is not especially concerned about appearances as it chases down the eternal sun of minority rule.

The con is on

I don’t think I really need to articulate the stakes of judicial redistricting. All you have to do is consider how differently things could have shaken out if the PA Supreme Court were disposed in favor of the GOP enough not to reject its partisan gerrymandering in 2018 or, say, its attempt to disqualify mail-in ballots in the 2020 presidential election. Or what a Supreme Court stocked with right-wing ideologues will make of climate change mitigation legislation or the expansion of voting right or civil liberties. That should give you a sense of what there is to lose in the bleakest of bleak timelines.

In some ways the more interesting question is what the GOP will do if they don’t get judicial redistricting enacted. After all, it could be challenged as unconstitutional and stopped by injunction even if voters approve it in the ballot measure. The contentious state Supreme Court will hang in the balance, then: Chief Justice Saylor, a Republican, reaches the mandatory retirement age of 75 at the end of this year; Max Baer, a Democract, will retire next year. Even if both of these seats are filled by Republicans, the Democratic majority will remain, albeit in a 4-3 precarity.

Republicans may turn towards retention elections as a weapon against any Dem currently still sitting on the Supreme Court, since their preferred method of impeachment hasn’t exactly come through for them in the past. It’s pretty surprising that they haven’t targeted retention elections already, in fact. Judges in Pennsylvania are subject to nonpartisan, yes-or-no elections every ten years to decide if they will remain on the bench. In state history, only one incumbent has been kicked from the judiciary this way, Russell Nigro in 2005. But three Democratic justices, all elected in 2015, will be up for retention in 2025. We should expect some very empassioned, very bizarre campaigns for their removal. Get your wallets ready, I guess.