League of Women Voters of Pennsylvania v. Commonwealth of Pennsylvania is a challenge to the state’s 2011 congressional district map. The challengers argue that the map is an extreme partisan gerrymander, in violation of the Pennsylvania Constitution’s Free Expression and Association Clauses, as well as its Equal Protection guarantees and the Free and Equal Clause.

The challengers have proposed a judicially manageable test for identifying such gerrymanders, including evidence that social science metrics, such as the efficiency gap, show that the plan’s partisan skew is large and likely to remain throughout the decade regardless of the will of the electorate. 

The map was drawn and enacted by a Republican-led legislature in a rushed process, excluding the public or Democratic legislators, and allowing no meaningful opportunities for input. In the first election under the map in 2012, Republicans won 72 percent of Pennsylvania’s congressional seats despite winning only 49 percent of the popular statewide vote. In the 2014 and 2016 election cycles, Republicans were able to maintain this lopsided advantage, despite receiving only a slim majority of the total votes.

In its friend-of-the-court brief to the Supreme Court of Pennsylvania, CLC argues that Pennsylvania’s gerrymandered congressional map penalizes voters on the basis of their political views and the practice of gerrymandering nationwide is incompatible with a healthy democracy. CLC further argues that the challengers’ proposed test for identifying when a partisan gerrymander should be struck down is judicially manageable and easily applied by courts.

What’s at stake?

The Pennsylvania case is unique, because it challenges a map under the state Constitution, rather than the federal Constitution. This allows the Pennsylvania Supreme Court to set a standard for determining how much partisanship is too much, independent of any standard the U.S. Supreme may decide to put in place.

The risk that partisan gerrymandering poses to our democracy is intensifying over time. This is due to many factors, including technological advances. The practice, designed to entrench the party in power, undermines our republican form of government and causes citizens to lose faith in the accountability of democratic institutions. That is why CLC is litigating cases about partisan gerrymandering in Wisconsin and North Carolina as well.

Most importantly, citizens lose the capacity to change the institutions that are designed to represent them through elections. Democrats in Pennsylvania are essentially shut out of the political process due to the manipulation of congressional districts by the party in power. In order to restore fair representation to all citizens in Pennsylvania, this issue must be rectified by the courts.

On Jan. 22, 2018, the Pennsylvania Supreme Court struck down the Pennsylvania congressional map as an unconstitutional partisan gerrymander. A remedial plan was approved by the Pennsylvania Supreme Court on Feb. 19 and will be used for the 2018 congressional elections.

Schickel v. Dilger is a challenge to several pillars of Kentucky’s legislative ethics laws that prevent lobbyists from corrupting state legislators with gifts and campaign contributions. The suit challenges laws that 1) prohibit lobbyists from contributing to the campaigns of Kentucky state legislators and legislative candidates during the legislative session; 2) prohibit such contributions at other times; 3) prohibit legislators from accepting gifts from lobbyists, and; 4) prohibit lobbyists from serving as campaign treasurers or soliciting, receiving, or otherwise directing—i.e., “bundling”—campaign contributions.

The challenged laws were passed in the wake of an infamous public corruption scandal in Kentucky, “Operation BOPTROT,” which led to charges against fifteen Kentucky legislators and lobbyists connected with the horse-racing industry. In response, Kentucky’s legislature passed strong ethics laws to protect its legislative and electoral processes from rampant corruption, as well as to restore Kentuckians’ faith in their government.

A federal trial court upheld the ban on campaign contributions during the legislative session, but struck down the other aspects of the law as insufficiently tailored to the state’s anticorruption goals. The Kentucky Legislative Ethics Commission (“KLEC”) is appealing to the Sixth Circuit Court of Appeals to preserve all elements of the law as crucial efforts to protect the integrity of its government.[1]

CLC filed a friend-of-the-court brief in support of Kentucky’s appeal. CLC is arguing that Kentucky has numerous reasons that justify its stringent efforts to maintain strong ethical boundaries between its legislators and the lobbyists who are paid to influence them. Kentucky’s own history, as well as experience elsewhere, demonstrates the validity and vital importance of strong ethics laws like Kentucky’s, both to prevent corruption and to ensure that public servants actually serve the public’s interest.

What’s at stake

Many states and municipalities have laws regulating the relationship between lobbyists and legislators, including laws limiting or prohibiting lobbyist campaign contributions and bans on lobbyist gift-giving to legislators.

Courts have long recognized that large campaign contributions can create the risk of actual corruption, or at least the appearance of corruption. That risk is heightened when the contributor’s job is to influence the very legislator to whom he or she contributes. States and municipalities are entitled to address those concerns by imposing reasonable restraints on lobbyists’ ability to seek favors from the legislators they lobby with campaign contributions, or to collect cash for their campaigns.

Moreover, lobbyist gift bans are used widely at all levels of government to ensure the integrity of public officeholders. These bans prevent corruption and preserve the public’s confidence that its government is working for the general welfare and is not influenced by lavish gifts.

Similar corruption concerns have prompted more and more states to consider laws comparable to Kentucky’s. As well-financed lobbying of state legislatures increases, it is as important as ever to equip states with the regulatory tools needed to protect against the clear opportunities for abuse presented by a lobbying system that gives narrow interests inordinate sway over both electoral and legislative processes.

[1] Plaintiffs also challenged several aspects of the state’s campaign finance laws, including its contribution limits. See Schickel v. Dilger, No. 2:15-cv-155 (WOB-JGW) (E.D. Ky. June 6, 2017), https://www.courthousenews.com/wp-content/uploads/2017/06/KentuckyLobbyists.pdf. Most of those claims, which are being separately defended by the Kentucky Registry of Election Finance (“KREF”) were either upheld or mooted by intervening legislative action, but they remain at issue on appeal. CLC’s brief focuses on the ethics provisions.

Facts of the Case             

Fair Districts Colorado, a redistricting reform group, proposed a series of ballot initiatives that seek to establish independent redistricting commissions (IRCs) to draw Colorado’s state legislative and congressional district lines. The IRCs are designed to promote a more democratic process for Colorado redistricting, which happens every ten years with the census. In order to achieve this goal, the initiatives lay out criteria for drawing district lines meant to protect voters of color and to prevent one political party from unilaterally controlling the redistricting process. One such criterion calls for the protection of  communities of interest, defined as groups that share ethnic, cultural, economic, trade area, geographic, demographic, racial or linguistic ties.

The initiatives were submitted to the Colorado Title Board, which reviews proposed ballot initiative language. At the Title Board, the initiatives were challenged by a group of petitioners for violating the Colorado Constitution’s “single subject” requirement for ballot initiatives. The single-subject rule applies to many states, including Colorado, and limits the scope of ballot initiatives to one issue. Specifically, the challengers argued that the initiatives “authoriz[ed]—as a substantive matter and for the first time—‘communities of interest’ based on voters’ race or language group” which would “fundamentally alter the purpose” of state legislative and congressional representation in Colorado. Petitioners argued that including race and language groups in the community of interest criterion would allow a “new form of race-based districting [to be] authorized in Colorado.” The Title Board denied the challenge and set titles for the initiatives, and petitioners appealed to the Colorado Supreme Court in December 2017.

What’s at stake

CLC submitted a friend-of-the-court brief on Jan. 4, 2018 in support of those seeking to get the redistricting reform initiatives on the ballot. CLC’s brief outlines the importance of allowing IRCs to be advanced through ballot initiatives, especially where there is no incentive for incumbents to relinquish their control over redistricting. The brief next explains the benefits of IRCs, and highlights evidence from social and political science that points to the improvements in democracy that have resulted from the introduction of IRCs in other states. Next, the brief argues that the initiatives’ protections for racial, ethnic, and language minorities do not address multiple subjects, but instead, accurately reflect existing federal and Colorado law with respect to communities of color. CLC’s brief further explains that including race as one of many redistricting criteria to be considered when drawing maps does not require an IRC to engage in racial gerrymandering.

The Colorado Supreme Court’s decision in the case will determine whether the ballot initiatives can be included on the ballot in 2018.

Partisan gerrymandering, or the drawing of electoral district lines to benefit one political party, is a serious problem in our democracy. This practice creates an unrepresentative and unfair democracy and also encourages self-interested politics. In jurisdictions nationwide, legislators have drawn legislative maps so that they can choose their voters, instead of voters being able to choose their representatives.

On February 5, 2016, in the federal court case Harris v. McCrory, a three-judge panel from the Middle District of North Carolina held that North Carolina’s 1st Congressional District and 12th Congressional District were unconstitutional racial gerrymanders under the 14th Amendment. Following this ruling, the Republican-led legislature redrew the state’s congressional districts to have a severe pro-Republican tilt, which the plan’s architects freely admitted “would be a political gerrymander.”

Expressly designed to give Republicans a 10-3 district advantage, despite the fact that North Carolina is a solidly purple state, the newly enacted North Carolina congressional plan is, by any measure, one of the worst partisan gerrymanders in modern American history.

It’s clear that the current redistricting process is undermining our democracy and partisan gerrymandering has become the political weapon of choice for legislators to maintain political power. The U.S. Supreme Court held that it has the authority and responsibility to decide partisan gerrymandering claims; in 2006, all nine justices agreed that excessive partisan gerrymandering violates the Constitution. 

However, the Court has yet to adopt a standard for determining whether a redistricting plan constitutes a partisan gerrymander. Every proposed test to date has been deemed unworkable by the courts — too ambiguous and subjective to reliably identify the most objectionable plans. Without a legal standard, voters are free to challenge politically motivated maps in court, but judges, without clear guidance, ordinarily dismiss these cases out of hand. The result is that voters, like those in North Carolina, are unable to hold their representatives accountable and reign in extreme partisan gerrymanders.

The Campaign Legal Center is representing the League of Women Voters of North Carolina alongside the Southern Coalition for Social Justice as well as numerous individual voters who have challenged the state’s congressional district lines as an unconstitutional partisan gerrymander in League of Women Voters of North Carolina v. Rucho. Our case seeks to establish that the North Carolina congressional plan enacted in February 2016 violates the 1st and 14th Amendments of the United States Constitution.

This case is the first since Gill v. Whitford (Wisconsin) to present the efficiency gap as a legal standard to determine if a partisan gerrymander is too extreme.