Dec 8, 2017 9 min read

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The legal meter is running.

Scores of outside lawyers have been hired by the state to defend electoral maps that critics say include gerrymandered districts destructive to democracy. So far, the tab for legal bills is $644,746, but experts say that’s just a fraction of the potential cost.

One of the cases that seeks to overturn Pennsylvania’s 2011 Republican-drafted congressional redistricting plan is scheduled for trial next week in Commonwealth Court.

It’s on the court’s so-called “rocket docket” with Judge Kevin Brobson setting an aggressive pace, which may mean more billable hours for attorneys.

In complex litigation of any duration, with numerous law firms involved, “you could easily cruise by the million-dollar mark,” said Bruce Antkowiak, a law professor at St. Vincent College in Latrobe and a former federal prosecutor. “It can be very, very substantial. You are talking (with big firms’) teams of lawyers,” he said.

State officials say they are using staff lawyers to augment the work by law firms and to reduce the costs. A case of this nature still requires specialists, said Stephen Miskin, spokesman for House Republicans.

“Would you use a dentist to take out your appendix?” he said.

Moreover, they say they are spending the money because they were sued and to defend a “constitutionally appropriate” congressional redistricting plan approved in 2011.

“The House and the Senate voted and passed congressional redistricting legislation, which was subsequently signed by a governor, thus making it a constitutionally adopted, constitutionally sound redistricting plan,” Miskin said.

It was adopted by a bipartisan vote in the state House, 136-61. Miskin noted 36 of the “yes” votes were Democrats.

But Suzanne Almeida, executive director of the Pennsylvania League of Women Voters, said the “whole purpose of redrawing districts is to make sure people’s votes count. The map from 2011 doesn’t hold that standard,” said Almeida. “We sued to make sure every vote counts.

“It’s unfortunate taxpayers’ money has to be spent to defend an unconstitutional gerrymander, but that’s part of the process we live in,” said Almeida.

The organization and individual plaintiffs filed suit in June, although the League has since been tossed out as a party. The plaintiffs are all now Democratic voters of the state’s congressional districts.

There’s the potential for state and federal lawsuits, including one before the U.S. Supreme Court, to require Pennsylvania to create new congressional districts in 2018, officials say. Political insiders think if one of the lawsuits hits pay dirt, a more likely result is setting new standards for elections after the next census in 2020.

The U.S. Supreme Court is expected to rule on a Wisconsin case in 2018.

“The congressional districts created under this (Pennsylvania) act are legitimate, and candidates and members of Congress have been interacting in those districts since 2012,” Miskin said.

Pennsylvania’s Republican-drawn congressional plan resulted in Republicans winning 13 of 18 seats in 2016 and 2014.

Taxpayers’ tab

A key player in the Commonwealth Court case, Drew Crompton, general counsel and chief of staff to Senate President Pro Tempore Joe Scarnati, a Republican who was among the state officials sued, said the legal billing totals are constantly changing.

“I don’t know,” Crompton said when asked about overall defense and Senate legal costs. “Bills always lag a few months. I sign off on bills but don’t keep running totals.”

But a Right to Know Law response provided by the Senate shows legal bills for Blank Rome total $287,793.22 to date.

As for state-paid legal bills to defend the map, Crompton responded: “Sen. Scarnati was a named defendant in the matter. Keep in mind the plaintiffs sued us, so I don’t understand the question really” of taxpayers’ defense costs. “This lawsuit is six years late. … perhaps the question of wasting of government resources is better for the plaintiffs than for the senator,” Crompton said.

Almeida, of the League of Women Voters, said that “by waiting six years we have three (election) cycles of demonstrable impact.”

Those results show “extreme partisan gerrymandering.”

The state lawsuit was initiated because the League of Women Voters and Democratic activists “didn’t like the result of the elections,” Miskin said.

Miskin said he believes the state suit filed by the League of Women Voters is driven by the Democratic National Committee. “Their arguments are similar,” he said. “They seem to be in lock step.”

On a separate track, a federal lawsuit in Philadelphia alleges disenfranchised voters as a result of the partisan gerrymandering. Congressional districts including the 6th and 7th congressional districts have “bizarre or crazy-quilt shapes” that can’t be explained by criteria such as continuity and governmental boundaries, the federal lawsuit contends. Rather they stem from using partisan data, it is alleged.

Not all critics of the redistricting process believe taxpayers shouldn’t pay for legal representation to defend what they see as unfair, partisan maps.

“I would say it’s how our justice system is,” said Amanda Holt of Allentown, a piano teacher whose challenge of state legislative reapportionment led the state Supreme Court to order a do-over by the General Assembly.

“I wouldn’t want to see it changed,” said Holt, who is a Lehigh County commissioner.

The key to fairer maps, she said, are “impartial standards to guide the process.”

The lawyers

In the Commonwealth Court case, defendants are assorted state elected officials, including the governor, lieutenant governor and legislative leaders.

Democratic Gov. Tom Wolf is represented by the state’s Office of General Counsel and the Philadelphia law firm Hangley Aronchick Segal Pudlin & Schiller. The same legal team from the state case is representing Wolf in the federal case. The Hangley firm, in addition to representing the governor, also is defending the Department of State in the federal case.

Lt. Gov. Mike Stack, also a Democrat, hired two law firms to represent him in the Commonwealth Court: Lazar M. Palnick and Cohen & Grigsby, P.C. Palnick is a Pittsburgh-based election lawyer and a heavy-hitter in Democratic circles; past news account describe Palnick as a close friend of former President Bill Clinton.

One of the Cohen & Grigsby attorneys, Clifford Levine, was an attorney for the 2016 Clinton-Kaine Campaign in Pennsylvania.

Stack voted against the GOP-crafted congressional map as a state senator in 2011. He became lieutenant governor in 2014.

Scarnati also has two law firms representing him in the Commonwealth Court: Blank Rome and Holtzman Vogel Joseflak Torchinsky, a firm with offices in Virginia and Washington, D.C. Scarnati is using the same lawyers for the state and federal cases.

The General Assembly is also represented by two firms: Stradley Ronon Stevens and Young, LLP and Cipriani & Werner, P.C.

The oddity among the defendants is Wolf. He was not governor in 2011. At that time Tom Corbett, a Republican, held office.

“Gov. Wolf has been a strong opponent of gerrymandering, and supports reforms that would remove partisanship and special interests from the drawing of districts,” said his spokesman, J.J. Abbott.

“While Gov. Wolf continues to evaluate his approach to these lawsuits pertaining to districts drawn and adopted under the previous administration, (he) believes that opponents of gerrymandering deserve to be heard,” Abbott said.

Wolf has stepped carefully through the litigation. For instance, he did not oppose an application for extraordinary relief by petitioners in the case.

Is it possible we would see Wolf fold in the Commonwealth Court case?

One expert is not so sure. “You can settle it. You can concede,” said Antkowiak. “But if the case is going forward, do you want to be on the sidelines and let others decide it?”

National perspective

Pennsylvania’s congressional districts have long been among the most controversial in the country.

After the 2000 census, national GOP leaders urged state Republicans to use their control of the process to give their party an advantage in congressional races as payback for Democratic gerrymandering in Georgia.

A challenge to those Pennsylvania maps made it to the U.S. Supreme Court, where Justice Anthony Kennedy laid the legal groundwork for the most recent round of redistricting challenges.

Kennedy, in a concurring opinion that upheld the Pennsylvania GOP’s map, said he believed it was possible that partisan gerrymandering could deprive people of their rights as voters, but that there was no standard way to determine how far was too far.

Something called the “efficiency gap” might be the tool Kennedy was looking for. The efficiency gap is a way of quantifying the advantage one party gives itself over the other when it draws district maps. The equation was explained in a 2014 research paper written by University of Chicago Law School professor Nicholas Stephanopolous and Public Policy of California research fellow Eric McGhee.

If one party tilts the field too far in its favor, the gap will be so large that the other party could win the most votes but still end up with a permanent minority of seats.

After Pennsylvania’s last round of redistricting, in 2011, Democratic congressional candidates won 83,000 more votes than Republicans but Republicans won 13 of the state’s 18 seats.

Around the same time, Wisconsin Republicans drew a state legislative map that enabled them to win 60 of 99 Assembly seats while losing the majority vote. The U.S. Supreme Court is considering whether the efficiency gap can be used to invalidate those maps, which other courts consider similar challenges to maps in Pennsylvania and elsewhere.

The maps’ defenders say the U.S. Supreme Court should decide the Wisconsin case before judges rule on the other challenges, but the Pennsylvania Supreme Court recently indicated it might not be willing to wait. In early November, the state’s high court ordered Commonwealth Court to present is findings in the state case by the end of the year.

If the court sides with the plaintiffs, state lawmakers might have to redraw congressional districts before the 2018 midterm elections, when control of Congress will be decided.

Almeida, of the Pennsylvania League of Women Voters, told The Caucus if plaintiffs prevail they’ll ask the court to move “as quickly as possible to correct the problem and correct the system.”