Nos. 17A795, 17A802
_____________________________________________________________________________
IN THE

Supreme Court of the United States
MICHAEL C. TURZAI, ET AL.,

Applicants,
V.

LEAGUE OF WOMEN VOTERS OF PENNSYLVANIA, ET AL.,

Respondents.
BRIAN MCCANN, ET AL.,

Applicants,
V.

LEAGUE OF WOMEN VOTERS OF PENNSYLVANIA, ET AL.,

Respondents.

PLAINTIFFS-RESPONDENTS’ RESPONSE IN OPPOSITION
TO APPLICATIONS FOR STAY PENDING THE DISPOSITION
OF PETITIONS FOR A WRIT OF CERTIORARI
__________
MARY M. MCKENZIE
MICHAEL CHURCHILL
BENJAMIN D. GEFFEN
PUBLIC INTEREST LAW CENTER
1709 Benjamin Franklin Parkway
2nd Floor
Philadelphia, PA 19103
(215) 627-7100

DAVID P. GERSCH
JOHN A. FREEDMAN
R. STANTON JONES
ELISABETH S. THEODORE

Counsel of Record
DANIEL F. JACOBSON
ARNOLD & PORTER
KAYE SCHOLER LLP
601 Massachusetts Ave. NW
Washington, DC 20001
(202) 942-5000
elisabeth.theodore@arnoldporter.com

Counsel for Respondents League of Women Voters of Pennsylvania et al.

 RULE 29.6 STATEMENT
The League of Women Voters of Pennsylvania is a non-profit corporation that
has no parent corporation and issues no stock.

i

 TABLE OF CONTENTS
Page
RULE 29.6 STATEMENT .............................................................................................. i
TABLE OF AUTHORITIES ......................................................................................... iii
INTRODUCTION .......................................................................................................... 1
BACKGROUND ............................................................................................................. 3
A.

Pennsylvania’s 2011 Congressional Districting Map ........................................ 3

B.

The Pennsylvania State Court Proceedings Below ........................................... 5

REASONS TO DENY THE STAY APPLICATIONS.................................................. 10
I.

II.

The Court Is Exceedingly Unlikely to Grant Certiorari and Applicants
Have No Chance of Success on the Merits ....................................................... 11
A.

The State Court’s Ruling that the Map Violates the State
Constitution Is Unreviewable and Cannot Be Stayed .......................... 11

B.

There Is No Possibility That This Court Will Review or Reverse
the State Court’s Remedy Under the Federal Elections Clause .......... 14

C.

The Remedy the Pennsylvania Supreme Court Ordered Is
Consistent With Precedent in Pennsylvania and Other States ........... 21

D.

Legislative Applicants Are Estopped From Asserting an
Elections Clause Challenge and Intervenor Applicants Waived
Any Such Challenge ............................................................................... 25

There Is No Likelihood of Irreparable Harm and the Balance of
Equities Weighs Against a Stay ....................................................................... 29

CONCLUSION............................................................................................................. 36

ii

 TABLE OF AUTHORITIES
Cases
In re 1991 Pennsylvania Legislative Reapportionment Comm’n,
609 A.2d 132 (Pa. 1992).......................................................................................... 13
In re 2003 Apportionment of the State Senate and U.S. Congressional
Dist.,
827 A.2d 844 (Maine 2003) .................................................................................... 23
In re Adoption of S.A.J.,
838 A.2d 616 (Pa. 2003).......................................................................................... 29
Alexander v. Taylor,
51 P.3d 1204 (Okla. June 25, 2002) ....................................................................... 23
In re Apportionment Comm’n,
36 A.3d 661 (Conn. 2012) ....................................................................................... 23
Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n,
135 S. Ct. 2652 (2015) .................................................................... 11, 18, 20, 34, 35
Arizona v. Evans,
541 U.S. 1 (1995) ...................................................................................................... 1
Beauprez v. Avalos,
42 P.3d 642 (Colo. 2002) ......................................................................................... 23
Branch v. Smith,
538 U.S. 254 (2003) ........................................................................ 18, 19, 20, 34, 35
Bush v. Gore,
531 U.S. 98 (2000) .................................................................................................. 21
Carroll v. Becker,
285 U.S. 380 (1932) .......................................................................................... 15, 20
Colgrove v. Green,
328 U.S. 549 (1946) ................................................................................................ 20
Colorado General Assembly v. Salazar,
541 U.S. 1093 (2004) .............................................................................................. 21
Cotlow v. Growe,
C8-91-985 (Minn. Spec. Redis. Panel Apr. 15, 1992) ...................................... 15, 16

iii

 Ohio ex rel. Davis v. Hildebrant,
241 U.S. 565 (1916) ................................................................................................ 21
DePaul v. Commonwealth,
969 A.2d 536 (Pa. 2009)...................................................................................... 5, 13
Emerick v. Harris,
1 Binn. 416, 1808 WL 1521 (Pa. 1808) .................................................................. 12
Erfer v. Commonwealth,
794 A.2d 325 (Pa. 2002).......................................................................................... 13
Favors v. Cuomo,
2012 WL 928223 (E.D.N.Y. Mar. 19, 2012) ........................................................... 35
Fillman v. Rendell,
986 A.2d 63 (Pa. 2009)............................................................................................ 12
FTC v. Phoebe Putney Health Sys., Inc.,
568 U.S. 216 (2013) ................................................................................................ 29
Growe v. Emison,
507 U.S. 25 (1993) ...........................................................................................passim
Hall v. Moreno,
270 P.3d 961 (Colo. 2012) ....................................................................................... 23
Hippert v. Ritchie,
813 N.W.2d 391 (Minn. Spec. Redis. Panel 2012) ................................................. 23
Holt v. 2011 Legislative Reapportionment Comm’n,
38 A.3d 711 (Pa. 2012)............................................................................................ 22
Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ. Ass’n,
426 U.S. 482 (1976) ................................................................................................ 12
Jepsen v. Vigil-Giron,
2002 WL 35459962 (N.M. Dist. Jan. 8, 2002) ....................................................... 23
Koenig v. Flynn,
285 U.S. 375 (1932) .......................................................................................... 15, 20
League of Women Voters v. Detzner,
179 So.3d 258 (Fla. 2015) ....................................................................................... 23
Legislature v. Reinecke,
516 P.2d 6 (Cal. 1973) ............................................................................................ 23
iv

 Maryland v. King,
133 S. Ct. 1 (2012) .................................................................................................. 10
Mellow v. Mitchell,
607 A.2d 204 (Pa. 1992).............................................................................. 13, 22, 31
In re Michael C. Turzai,
No. 17-631 (2017)...................................................................................................... 1
Minnesota v. Nat’l Tea Co.,
309 U.S. 551 (1940) .................................................................................................. 1
New Hampshire v. Maine,
532 U.S. 742 (2001) .................................................................................... 25, 28, 29
Pap’s A.M. v. City of Erie,
812 A.2d 591 (Pa. 2009).......................................................................................... 13
Philip Morris USA Inc. v. Scott,
131 S. Ct. 1 (2010) .................................................................................................. 10
Purcell v. Gonzalez,
549 U.S. 1 (2006) .............................................................................................. 32, 34
Reynolds v. Sims,
377 U.S. 533 (1964) .......................................................................................... 23, 36
Scott v. Germano,
381 U.S. 407 (1965) .................................................................................... 17, 27, 28
Shaw v. Reno,
509 U.S. 630 (1993) ................................................................................................ 23
Smiley v. Holm,
285 U.S. 355 (1932) .................................................................................... 11, 15, 20
Smith v. Texas,
550 U.S. 297 (2007) ................................................................................................ 29
Sprietsma v. Mercury Marine,
537 U.S. 51 (2002) .................................................................................................. 29
Vieth v. Jubelirer,
541 U.S. 267 (2004) ................................................................................................ 14
Wesberry v. Sanders,
376 U.S. 1 (1964) .................................................................................................... 20
v

 Wilson v. Eu,
823 P.2d 545 (Cal. 1992) ........................................................................................ 23
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) .................................................................................................... 30
Zachman v. Kiffmeyer,
2002 Minn. LEXIS 884 (Minn. Spec. Redis. Panel Mar. 19, 2002) ...................... 23
Statutes and Constitutional Provisions
Pa. Const. Art. I, § 1 ...................................................................................................... 6
Pa. Const. Art. I, § 5 ................................................................................................ 6, 13
Pa. Const. Art. I, § 7 ...................................................................................................... 5
Pa. Const. Art. I, § 20 .................................................................................................... 5
Pa. Const. Art. I, § 26 .................................................................................................... 6
U.S. Const. Art. I, § 4....................................................................................... 11, 14, 18
42 Pa. C.S. § 726 ...................................................................................................... 6, 13
2 U.S.C. § 2a(c)................................................................................................. 11, 19, 20
2 U.S.C. § 2a(c)(5) .................................................................................................. 34, 35
2 U.S.C. § 2c ........................................................................................................... 19, 35
28 U.S.C. § 1257(a) ...................................................................................................... 12
28 U.S.C. § 2101(f) ....................................................................................................... 12

vi

 INTRODUCTION
On January 22, 2018, the Pennsylvania Supreme Court struck down
Pennsylvania’s 2011 congressional map on the “sole basis” that the map violates the
Pennsylvania Constitution, and ordered a remedial map for the 2018 elections. It is
hornbook law that this Court cannot review decisions of state courts construing
state law. State courts are “free to serve as experimental laboratories,” Arizona v.
Evans, 541 U.S. 1, 8 (1995), and “[i]t is fundamental that state courts be left free
and unfettered by [this Court] in interpreting their state constitutions,” Minnesota
v. Nat’l Tea Co., 309 U.S. 551, 557 (1940). Applicants urge this Court to cast aside
these bedrock principles and intervene in this state court, state law case. The Court
should not do so. There is no partisan gerrymandering exception to federalism.
Applicants’ ostensible hook for federal intervention is an Elections Clause
theory that this Court has squarely rejected in decisions dating back nearly a
century. To accept Applicants’ theory, this Court would need to overrule no fewer
than six of its precedents, all upholding the power of state courts to review and
remedy unconstitutional congressional districting plans. In these circumstances,
Applicants cannot seriously maintain that this Court will grant certiorari or
reverse. Their stay applications are just a ploy to preserve a congressional map
that violates Pennsylvania’s Constitution for one more election cycle.
This Court need not take our word for it. For months, Applicants in No.
17A795 (“Legislative Applicants”) have been telling federal courts in separate suits
challenging Pennsylvania’s 2011 map that, under settled precedent, they must defer

1

 to Pennsylvania state courts. They told this Court that federal courts would be
“usurp[ing] the power of the Pennsylvania state courts” to review and remedy the
map, and just last week they persuaded a federal court to grant a stay in deference
to this state court action. Legislative Applicants cannot now obtain a stay of the
state court’s judgment on the theory that state courts have no power in this realm.
Legislative Applicants’ warnings of “voter confusion” and “chaos” have no
grounding in evidence, history, or context. In 1992, Pennsylvania implemented a
court-ordered congressional map less than two months before the primary elections.
And in Growe v. Emison, 507 U.S. 25 (1993), this Court held that state courts may
properly adopt a new congressional map only two months before the primaries.
There is even more time here. Under the Pennsylvania Supreme Court’s order, the
new map will be in place three months before the primaries and nine months before
the general elections. And Pennsylvania’s chief election officials have made clear
that they can administer perfectly orderly elections on this schedule.
Pennsylvania’s Supreme Court has held that the 2011 map “clearly, plainly
and palpably” violates Pennsylvania’s Constitution. It would be unprecedented for
this Court to interfere with the state court’s determination about its own state’s
law. If federalism means anything, it means that this Court should deny the stay
applications.

2

 BACKGROUND
A.

Pennsylvania’s 2011 Congressional Districting Map

1.

In the 2010 elections, Republicans picked up 11 seats to take control of

the Pennsylvania House, retained control of the Senate, and won the governorship.
Leg. App’x B ¶¶ 89-92. This gave Republicans exclusive control over Pennsylvania’s
congressional redistricting following the 2010 census. Working in secret,
Republican mapmakers in Pennsylvania’s legislature used past election results to
calculate partisanship scores for each precinct, municipality, and county in
Pennsylvania—with higher scores for Republican-leaning areas and lower scores for
Democratic-leaning areas. Pls.’ Exhibit (“PX”) 1 at 38-41; Trial Tr. (“Tr.”) 299:10309:21. This enabled the mapmakers to predict the partisan voting preferences of
voters in potential new congressional districts. PX1 at 39-41.
Senate Bill 1249, which Republican leaders introduced on September 14,
2011, started as an empty shell—it contained no map or details. Leg. App’x B
¶¶ 98-101. On December 14, 2011, Republicans amended the bill to add, for the
first time, actual descriptions of the new districts. Id. at ¶¶ 104, 126(b).
Republican Senators suspended the ordinary rules of procedure to rush the bill
through the Senate that same day. Id. at ¶¶ 109, 126. Less than a week later, on
December 20, 2011, the House passed SB 1249, and Governor Corbett signed the
bill into law two days later, as Act 131 of 2011. Id. at ¶¶ 117, 121-23.
2.

The 2011 map “packed” Democratic voters into five districts that

Democrats would win by wide margins, and “cracked” the remaining Democratic

3

 voters by spreading them across 13 districts that would be reliably Republican.
This resulted in bizarre districts that rip apart Pennsylvania’s communities to an
unprecedented degree. Id. at ¶¶ 313-39; PX53; Tr. 579:18-644:15.
By way of example, the 7th District’s tortured shape has earned the moniker
“Goofy Kicking Donald Duck.” Leg. App’x B ¶ 323; Tr. 598:25-599:22. This district
alone splits five counties and 26 municipalities. It is barely contiguous; at one
point, it is the width of a medical facility, and elsewhere its only point of contiguity
is the restaurant Creed’s Seafood & Steaks. Leg. App’x B ¶ 323; PX53 at 32; PX81.
The 6th District is nearly as absurd as the 7th. It cobbles together pieces of
multiple communities, resembling Florida “with a more jagged and elongated
panhandle.” Leg. App’x B ¶ 324; Tr. 616:2-617:17; PX53 at 28-29. A surgical
incision carves out the Democratic stronghold of Reading, splitting it from the rest
of Berks County and grouping it with far-flung communities in the Republican 16th
District via a narrow isthmus that at one point is the width of a mulch store and a
service center. Leg. App’x B ¶ 325; PX53 at 50-52; Tr. 618:12-620:6.
More anomalies abound. Erie County was undivided throughout modern
history until the 2011 map split it, cracking its Democratic voters between the
Republican 3rd and 5th Districts. Leg. App’x B ¶ 320; PX53 at 23, 27; Tr. 591:1598:5. The map carves up the distinctive community of the Lehigh Valley for the
first time in modern history to dilute its Democratic voters. Leg. App’x B ¶¶ 326-28;
Tr. 623:15-625:9; PX53 at 47-48, 54. The map splits Harrisburg, cracking its

4

 Democratic voters between the Republican 4th and 11th Districts. Leg. App’x B
¶ 330; PX53 at 25; Tr. 631:1-632:8. The record contains many more examples.
Legislative Applicants have not disputed that the anomalous districts reflect
an intentional effort to disadvantage Democratic voters.
3.

In each of the three election cycles under the 2011 map, Republican

candidates have won 13 of Pennsylvania’s 18 congressional seats—the same 13
seats each time. Leg. App’x B ¶¶ 185, 192, 198. In 2012, Republicans won those
same 13 of 18 seats (72%) despite winning only a minority of the total statewide
vote (49%). Id. at ¶¶ 183-85. The distribution of votes across districts reveals how
the gerrymander worked. In 2012, 2014, and 2016, Democrats won lopsided
victories in the five “packed” districts, with average vote shares of 76.4%, 73.6%,
and 75.2%. Leg. App’x B ¶ 185. Republicans won their 13 “cracked” districts with
closer—but still comfortable—average vote shares of 59.5%, 63.4%, and 61.8%. Id.
B.

The Pennsylvania State Court Proceedings Below

1.

Respondents the League of Women Voters of Pennsylvania and 18

individual Pennsylvania voters (Petitioners below; hereinafter “Plaintiffs”) filed this
action against Legislative Applicants and others in Pennsylvania Commonwealth
Court on June 15, 2017. Plaintiffs challenged the 2011 map exclusively under the
Pennsylvania Constitution. Count I asserted that the map violates the
Pennsylvania Constitution’s Free Expression and Free Association Clauses, Pa.
Const. Art. I, §§ 7, 20, which provide “broader protections of expression than the
related First Amendment,” DePaul v. Commonwealth, 969 A.2d 536, 546 (Pa. 2009).

5

 Count II asserted that the map violates the Pennsylvania Constitution’s Free and
Equal Clause, Pa. Const. Art. I, § 5, which requires that “elections” be “free and
equal” and has no federal counterpart, as well as the Pennsylvania Constitution’s
equal protection guarantees, Pa. Const. Art. I, §§ 1, 26. Applicants in No. 17A802,
who are Pennsylvania Republican voters, volunteers, and prospective candidates
(“Intervenor Applicants”), intervened to defend the map.
2.

On November 9, 2017, the Pennsylvania Supreme Court exercised

“extraordinary jurisdiction” under 42 Pa. C.S. § 726 and ordered the Commonwealth
Court to conduct a trial and issue findings of fact and conclusions of law.
At the weeklong trial in December 2017, Petitioners’ experts demonstrated
the 2011 map’s extreme partisan bias. Dr. John J. Kennedy, an expert in
Pennsylvania’s political geography, demonstrated—without rebuttal—that partisan
intent was the only explanation for the map’s packing and cracking of Democratic
voters, its bizarre districts, and its unprecedented division of communities. Tr.
579:22-580:1, 621:15-636:14; PX53; Leg. App’x B ¶¶ 313-39.
Petitioners’ other three experts presented multiple statistical measures and
models that each independently supported the conclusion that the 2011 map
intentionally and effectively disadvantages Democratic voters. Using a computer
simulation methodology, Dr. Jowei Chen concluded with over 99.9% statistical
certainty that the 2011 plan’s 13-5 Republican advantage would never have
emerged from a districting process that adhered to traditional principles. Tr.
203:14-204:2; Leg. App’x B ¶¶ 238-47. Dr. Chen concluded that extreme partisan

6

 intent subordinated traditional districting principles in the 2011 plan. Leg. App’x B
¶ 268. As a result, Republicans have won 4 to 5 more seats than they would have
under a plan that followed only traditional principles. Id. ¶ 267; Tr. 204:16-205:6.
Dr. Wesley Pegden, a mathematician at Carnegie Mellon University,
demonstrated to a mathematical certainty that the 2011 map was intentionally
drawn to maximize partisan advantage. PX117 at 1-2; Tr. 1384:22-1386:12. Using
a computer algorithm that generated hundreds of billions of maps, he showed that
the 2011 map is so carefully engineered to advantage Republicans that its partisan
bias immediately evaporates when tiny random changes are made to the district
boundaries. Leg. App’x B ¶¶ 342-43, 358-59.
Dr. Christopher Warshaw, an expert in political representation, public
opinion, and elections, demonstrated that, under the “Efficiency Gap” measure, the
three congressional elections held under the 2011 map have produced historically
extreme levels of pro-Republican bias. PX35 at 5-15; Leg. App’x B ¶ 364.
3. On December 29, 2017, the Commonwealth Court issued recommended
findings of fact and conclusions of law. The court found that the evidence
“established intentional discrimination.” Leg. App’x B ¶ 51. As the court stated, “it
is clear that the 2011 Plan was drawn through a process in which a particular
partisan goal—the creation of 13 Republican districts—predominated.” Id. at ¶ 291.
The court nevertheless recommended upholding the 2011 map.
4.

At oral argument before the Pennsylvania Supreme Court, Legislative

Applicants’ counsel conceded that “[v]oters were classified and placed into districts

7

 based upon the manner in which they voted in prior elections.” Oral Argument
Video at 1:54:33-44. Counsel did not deny that this was done “to punish”
Democratic voters “by placing them into a district where their vote isn’t going to
carry equal weight.” Id. at 1:53:20-1:54:20. Legislative Applicants’ other counsel
stated that if the map were struck down, the legislature wanted “at least three
weeks” to enact a new map, id. at 1:45:53-1:46:13, and agreed that the traditional
districting criteria of compactness, contiguity, and avoiding splitting political
subdivisions were appropriate for congressional plans under the Pennsylvania
Constitution, id. at 1:29:41-1:30:21, 1:32:18-47.
5.

On January 22, 2018, the Pennsylvania Supreme Court issued an

order, with opinion to follow, holding that the 2011 map “clearly, plainly and
palpably violates the Constitution of the Commonwealth of Pennsylvania, and, on
that sole basis, we hereby strike it as unconstitutional.” Leg. App’x A2. The court
ordered that the map’s “further use in elections for Pennsylvania seats in the
United States House of Representatives, commencing with the upcoming May 15,
2018 primary, is hereby enjoined.” Id.
As a remedy, the Pennsylvania Supreme Court gave the General Assembly
three weeks—until February 9, 2018—to pass a new districting plan, and gave the
Governor until February 15 to sign or veto it. Id. If the General Assembly and
Governor are unable to enact a new plan, the court will “proceed expeditiously to
adopt a plan based on the evidentiary record developed in the Commonwealth
Court.” Id. The court accordingly invited all parties to submit “proposed remedial

8

 districting plans on or before February 15, 2018.” Id. at A2-A3. The court directed
that, “to comply with this Order, any congressional districting plan shall consist of:
congressional districts composed of compact and contiguous territory; as nearly
equal in population as practicable; and which do not divide any county, city,
incorporated town, borough, township, or ward, except where necessary to ensure
equality of population.” Id. at A3.
The court advised that “a congressional districting plan will be available by
February 19, 2018,” and directed the “Executive Branch Respondents”— the
Governor, the Secretary of the Commonwealth, and the Commissioner of the
Bureau of Elections—to “take all measures, including adjusting the election
calendar if necessary, to ensure that the May 15, 2018 primary election takes place
as scheduled.” Id.
Writing separately, Justice Baer concurred in the court’s holding that the
2011 map violates the Pennsylvania Constitution and the court’s “invitation to the
Legislature and Governor to craft constitutional maps” in the first instance. Leg.
App’x A5. He dissented solely with respect to ordering a remedial plan for the 2018
rather than 2020 elections. Id. at A5-A7. Chief Justice Saylor and Justice Mundy
separately dissented. They expressed “substantial concerns as to the constitutional
viability of Pennsylvania’s current congressional districts,” but objected to the
timing of the decision and the court’s remedy. Id. at A9-A13.
On January 25, 2018, the state high court denied Applicants’ requests for a
stay pending appeal to this Court. Id. at D2. Subsequently, the court appointed

9

 Nathaniel Persily to serve “as an advisor to assist the Court in adopting, if
necessary, a remedial congressional redistricting plan.” Order at 2 (Jan. 26, 2018).
6.

On January 26, 2018, Legislative Applicants and Intervenor

Applicants asked this Court to stay the Pennsylvania Supreme Court’s decision
pending resolution of forthcoming petitions for certiorari. Thereafter, one of the
Legislative Applicants, Senator Scarnati, advised the state court by letter that the
legislature has begun “advancing bills aimed at creating an alternative map” under
the timeline the court prescribed.1 In the same letter, he asserted that the state
court’s orders were unconstitutional and stated that he would not comply with the
court’s directive to turn over data relating to Pennsylvania’s geographic boundaries.
REASONS TO DENY THE STAY APPLICATIONS
To grant a stay pending the disposition of a petition for certiorari, there must
be “(1) a reasonable probability that this Court will grant certiorari, (2) a fair
prospect that the Court will then reverse the decision below, and (3) a likelihood
that irreparable harm will result from the denial of a stay.” Maryland v. King, 133
S. Ct. 1, 2 (2012) (Roberts, C.J., in chambers) (internal quotation marks and
alterations omitted). The Court may not grant a stay unless the balance of the
equities supports it. Philip Morris USA Inc. v. Scott, 131 S. Ct. 1, 4-5 (2010) (Scalia,
J., in chambers). There is no basis for a stay here.

1

Ltr. from Brian S. Paszamant to Justices of the Supreme Court of Pennsylvania,
Jan. 31, 2018, https://www.brennancenter.org/sites/default/files/legalwork/LWV_v_PA_Scarnati-Response-to-01.26.18-Order.pdf/
10

 I.

The Court Is Exceedingly Unlikely to Grant Certiorari and
Applicants Have No Chance of Success on the Merits
A.

The State Court’s Ruling that the Map Violates the State
Constitution Is Unreviewable and Cannot Be Stayed

The portion of the Pennsylvania Supreme Court’s order that strikes down the
2011 map as a matter of state law is not reviewable by this Court, and accordingly
this Court lacks jurisdiction to stay that portion of the order. The Pennsylvania
Supreme Court made clear that its decision to invalidate the map rested solely on
state constitutional grounds: “[T]he Court finds as a matter of law that the
Congressional Redistricting Act of 2011 clearly, plainly and palpably violates the
Constitution of the Commonwealth of Pennsylvania, and, on that sole basis, we
hereby strike it as unconstitutional.” Leg. App’x A2 (emphasis added).
Nothing in the Elections Clause, U.S. Const. Art. I, § 4, alters the state
court’s unreviewable authority to invalidate the 2011 map—a state law passed by
the state legislature—for violating the state constitution. Nearly a century ago, in
Smiley v. Holm, 285 U.S. 355 (1932), this Court explained that the Elections Clause
does not “render[] inapplicable the conditions which attach to the making of state
laws.” Id. at 365. The Clause does not “endow the Legislature of the state with
power to enact laws in any manner other than that in which the Constitution of the
state has provided that laws shall be enacted.” Id. at 368. Congress has codified
this requirement, providing that congressional districting plans are not valid unless
they are adopted “in the manner provided by [state] law.” 2 U.S.C. § 2a(c); see Ariz.
State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2670 (2015).

11

 In Pennsylvania, one of the conditions that attaches to the making of any
state law—including a law that establishes congressional districts—is compliance
with the Pennsylvania Constitution, as interpreted by the Pennsylvania Supreme
Court. Emerick v. Harris, 1 Binn. 416, 1808 WL 1521 (Pa. 1808); Fillman v.
Rendell, 986 A.2d 63, 75 (Pa. 2009). Here, the Pennsylvania Supreme Court has
held that Pennsylvania’s Act 131 of 2011, which enacted the 2011 map, does not
comply with the Pennsylvania Constitution. This Court is, “of course, bound to
accept the interpretation of [state] law by the highest court of the State.”
Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ. Ass’n, 426 U.S. 482, 488
(1976). This Court lacks jurisdiction to review or stay any aspect of a decision that
is based on state law. 28 U.S.C. §§ 1257(a), 2101(f).
Intervenor Applicants argue that the Pennsylvania Supreme Court made no
“plain statement” that its decision rests upon state-law grounds. Int. Appl. 11.
This argument is frivolous in light of the court’s plain statement that state
constitutional grounds were the “sole basis” for its ruling. Even Legislative
Applicants do not dispute that the court below made sufficiently clear that the map
was invalid exclusively as a matter of state law.
Legislative Applicants instead declare that the Pennsylvania Supreme Court
engaged in “judicial activism” and “not interpretation at all, but rank legislation.”
Leg. Appl. 2, 11. But inflammatory rhetoric does not transform a state court’s
interpretation of the state’s own constitution into a federal question. Nor do ad
hominem attacks against individual state supreme court justices. Id. at 5-6 n.1.

12

 In any event, Legislative Applicants’ intemperate portrayal of the decision
does not accord with reality. Pennsylvania’s Supreme Court has consistently and
repeatedly held that excessive partisan gerrymandering offends the Pennsylvania
Constitution and that such claims are justiciable under Pennsylvania law. In re
1991 Pennsylvania Legislative Reapportionment Comm’n, 609 A.2d 132, 141-42 (Pa.
1992); Erfer v. Commonwealth, 794 A.2d 325, 331 (Pa. 2002).2 The state high court
has consistently and repeatedly held that the Pennsylvania Constitution provides
“broader protections of expression than the related First Amendment,” including for
political speech. DePaul, 969 A.2d at 546; see Pap’s A.M. v. City of Erie, 812 A.2d
591 (Pa. 2009). Pennsylvania’s constitutional guarantee that “elections” must be
“free and equal,” Pa. Const. Art. I, § 5, has no federal counterpart. And the
Pennsylvania statute under which the state high court exercised jurisdiction
authorizes the court to assume “plenary jurisdiction” of any matter and “enter a
final order or otherwise cause right and justice to be done,” “[n]otwithstanding any
other provision of law.” 42 Pa. C.S. § 726. Pennsylvania’s Supreme Court has been
invoking this provision for decades in the congressional redistricting context. E.g.,
Erfer, 794 A.2d at 328; Mellow v. Mitchell, 607 A.2d 204, 206 (Pa. 1992). Judicial
review here was not some invention for this case only.
In light of the overwhelming evidence and Applicants’ admission at oral

2

Legislative Applicants’ citation to Erfer for the proposition that “no [Pennsylvania]
state constitutional requirements apply to congressional district maps,” Leg. Appl.
12, is puzzling. Erfer “reject[ed]” the “radical conclusion that our Commonwealth’s
Constitution is nullified in challenges to congressional reapportionment plans,” 794
A.2d at 331, and evaluated the 2002 map under state constitutional provisions.
13

 argument that the map was drawn to discriminate on the basis of prior political
expression, it is no surprise that the Pennsylvania Supreme Court concluded that
this map, unlike prior Pennsylvania maps, crossed the line. Applicants say it is
“untenable” that Pennsylvania’s Free Expression and Association Clauses prohibit
partisan gerrymandering, as if such a holding were somehow outside the
mainstream. Leg. Appl. 12. But a Justice of this Court has explained that partisan
gerrymandering may violate the First Amendment, which provides less expansive
protections than Pennsylvania’s free expression guarantee. Vieth v. Jubelirer, 541
U.S. 267, 315 (2004) (Kennedy, J. concurring). And the fact that federal law is
unsettled, Int. Appl. 13-14, does not counsel in favor of federal intervention. Quite
the opposite. Federalism encourages state supreme courts to interpret their own
constitutions independent of federal law.
B.

There Is No Possibility That This Court Will Review or Reverse
the State Court’s Remedy Under the Federal Elections Clause

Legislative Applicants argue that the word “Legislature” in the Elections
Clause, U.S. Const. art. I, § 4, forbids state courts from taking steps to remedy a
state legislature’s violation of the state constitution. Leg. Appl. 9. That argument
has been rejected time and again by this Court and does not warrant review. There
is no likelihood of certiorari, and zero likelihood of reversal. This Court would have
to overturn at least six of its decisions spanning almost a century to hold, as
Legislative Applicants propose, that the Elections Clause precludes state courts
from setting criteria for, or adopting, remedial congressional maps.
In two companion cases decided the same day as Smiley, this Court expressly

14

 affirmed state courts’ implementation of remedial congressional districting plans
after those courts invalidated prior plans under the state constitution. Carroll v.
Becker, 285 U.S. 380, 381-82 (1932); Koenig v. Flynn, 285 U.S. 375, 379 (1932). In
Koenig, the New York Court of Appeals struck down the state’s congressional
districting law because it violated “the requirements of the Constitution of the state
in relation to the enactment of laws,” and the state court ordered the election to
proceed under a remedial plan. 285 U.S. at 379. Relying on Smiley’s holding that
the Elections Clause does not empower state legislatures to violate state
constitutions, this Court affirmed the decision and the state court’s authority to
impose a remedial plan. Id.; see also Carroll, 285 U.S. at 382 (same as to
congressional districting plan imposed by Missouri Supreme Court).
More recently, in Growe v. Emison, 507 U.S. 25 (1993), this Court held that
federal courts must defer to state courts in congressional redistricting—and upheld
a state court’s power to draw a remedial map using traditional districting criteria.
After invalidating Minnesota’s prior congressional map, a Minnesota state court
“adopted final criteria for congressional plans and provided a format for submission
of plans in the event the legislature failed to enact a constitutionally valid
congressional apportionment plan.” Cotlow v. Growe, C8-91-985 (Minn. Spec. Redis.
Panel Apr. 15, 1992).3 Two months later, a federal court enjoined the state court
from adopting any new plan and then adopted its own remedial plan. Growe, 507
U.S. at 30-31. The state court subsequently released a provisional remedial plan,

3

Available at https://www.senate.mn/departments/scr/REDIST/COTLO415.HTM.
15

 subject to the federal injunction, that used the criteria of “minimiz[ing] the number
of municipal and county splits” and promoting “compactness.” Cotlow, C8-91-985,
supra. Because of the federal court injunction, however, the 1992 congressional
elections proceeded under the federal court plan.4
This Court reversed the federal court’s injunction. Writing for a unanimous
Court, Justice Scalia explained that “[t]he District Court erred in not deferring to
the state court’s efforts to redraw Minnesota’s … federal congressional districts.”
Growe, 507 U.S. at 42. This Court stated over and over and over again that state
courts have the power to review and remedy congressional districting plans and
that federal courts must not interfere:
•

“In the reapportionment context, the Court has required federal judges to
defer consideration of disputes involving redistricting where the State,
through its legislative or judicial branch, has begun to address that highly
political task itself.” 507 U.S. at 33 (emphasis in original).

•

“The power of the judiciary of a State to require valid reapportionment or to
formulate a valid redistricting plan has not only been recognized by this
Court but appropriate action by the States in such cases has been specifically
encouraged.” Id. (internal quotation marks omitted).

•

“[T]he Constitution leaves with the States primary responsibility for
apportionment of their federal congressional and state legislative
districts. We say once again what has been said on many occasions:
reapportionment is primarily the duty and responsibility of the State through
its legislature or other body, rather than of a federal court. Absent evidence
that these state branches will fail timely to perform that duty, a federal court
must neither affirmatively obstruct state reapportionment nor permit federal
litigation to be used to impede it.” Id. at 34 (quotations omitted).

4

Minnesota Redistricting Cases: the 1990s,
https://www.senate.mn/departments/scr/REDIST/Redsum/mnsum.htm.
16

 •

“[T]he District Court’s December injunction of state-court proceedings … was
clear error. It seems to have been based upon the mistaken view that federal
judges need defer only to the Minnesota Legislature and not at all to the
State’s courts. Thus, the January 20 deadline the District Court established
was described as a deadline for the legislature, ignoring the possibility and
legitimacy of state judicial redistricting. And the injunction itself treated the
state court’s provisional legislative redistricting plan as ‘interfering’ in the
reapportionment process. But the doctrine of Germano prefers both state
branches to federal courts as agents of apportionment.” Id. at 34.

•

“The Minnesota [court’s] issuance of its plan (conditioned on the legislature’s
failure to enact a constitutionally acceptable plan in January), far from being
a federally enjoinable ‘interference,’ was precisely the sort of state judicial
supervision of redistricting we have encouraged.” Id. at 34.

•

“The District Court erred in not deferring to the state court’s timely
consideration of congressional reapportionment.” Id. at 37.
Following this Court’s decision in Growe, the state court’s remedial plan—

which was drawn using the traditional criteria of compactness and minimizing
political subdivision splits—governed the 1994 congressional elections.5
The Pennsylvania Supreme Court proceeded here in precisely the way Growe
“encouraged”: it gave the state legislature a chance to enact a new plan and
“conditioned” the adoption of a state court plan on the “legislature’s failure to enact
a constitutionally acceptable plan.” Growe, 507 U.S. at 34. Yet without even citing
Growe, Legislative Applicants effectively urge this Court to overturn it. Under their
view, state courts would not only lose their primacy in addressing congressional
districting challenges, but would be rendered powerless in this area. Stays are for
cases where there is a probability of certiorari and a prospect of reversal, not for
theories that are squarely foreclosed by this Court’s longstanding precedent.

5

Minnesota Redistricting Cases: the 1990s, supra note 4.
17

 Nothing in Arizona State Legislature suggests that state courts lack power to
review and remedy state congressional maps. Cf. Leg. Appl. 9, 14-15. To the
contrary, this Court upheld against an Elections Clause challenge the power of
states to assign congressional redistricting to an independent commission. In so
holding, the Court reaffirmed that redistricting must be “performed in accordance
with the State’s prescriptions for lawmaking.” Ariz. State Legislature, 135 S. Ct. at
2668. The Court rejected the notion that the “Elections Clause renders the State’s
representative body the sole component of state government authorized to prescribe
regulations for congressional redistricting.” Id. at 2673 (quotations and alterations
omitted). “Nothing in that Clause instructs, nor has this Court ever held, that a
state legislature may prescribe regulations on the time, place, and manner of
holding federal elections in defiance of provisions of the State’s constitution.” Id.
Legislative Applicants make no effort to reconcile their radical interpretation of the
Elections Clause with that decision from just three years ago.
It is not only that this Court has repeatedly rejected the notion that the
reference to “Legislature” in the first part of the Elections Clause precludes state
courts from enforcing state constitutions. The second part of the Elections Clause
allows Congress “at any time” to alter state laws related to congressional
redistricting, U.S. Const. Art. I, § 4, and this Court held in Branch v. Smith, 538
U.S. 254 (2003), that Congress has validly done so by conferring remedial authority
on state courts. Branch held that 2 U.S.C. § 2c authorizes both state and federal
courts to “remedy[] a failure” by the state legislature “to redistrict constitutionally,”

18

 and “embraces action by state and federal courts when the prescribed legislative
action has not been forthcoming.” Id. at 270, 272 (emphasis added). “[Section] 2c is
as readily enforced by courts as it is by state legislatures, and is just as binding on
courts—federal or state—as it is on legislatures.” Id. at 272. Legislative Applicants
apparently would have this Court overturn Branch, but they do not even cite it.
The plurality portion of Branch explained that another federal statute, 2
U.S.C. § 2a(c), also recognizes state courts’ power to adopt congressional
redistricting plans pursuant to state law. Section 2a(c) prescribes procedures that
apply “[u]ntil a State is redistricted in the manner provided by [state] law.” The
plurality explained that the “[u]ntil a State is redistricted” language in this
provision “can certainly refer to redistricting by courts as well as by legislatures,”
and that “when a court, state or federal, redistricts pursuant to § 2c, it necessarily
does so ‘in the manner provided by state law.’” Id. at 274 (emphasis added;
bracketing omitted). The dissent disagreed with the plurality not on the theory that
state courts lack authority to impose a redistricting plan, but because the dissent
thought that only state courts (and not federal courts) may undertake an initial
redistricting. Id. at 277. But every Justice agreed that, as compared to federal
courts, it is “preferable for the State’s legislature to complete its constitutionally
required redistricting … or for the state courts to do so if they can.” Id. at 278.
The majority in Arizona State Legislature upheld this interpretation. Under
§ 2a(c), “Congress expressly directed that when a State has been redistricted in the
manner provided by state law—whether by the legislature, court decree, or a

19

 commission established by the people’s exercise of the initiative—the resulting
districts are the ones that presumptively will be used to elect Representatives.” 135
S. Ct. at 2670 (emphasis added) (quotations and alterations omitted). Legislative
Applicants thus are wrong that, in Arizona State Legislature, “[n]o Justice
suggested that state courts might share in” the redistricting function. Leg. Appl. 9.
In short, while Legislative Applicants argue that the authority of state courts
to consider congressional reapportionment “present[s] an issue of federal law long
overdue for definitive resolution by this Court,” Leg. Appl. 8-9, they ignore at least
six decisions of this Court—Growe, Smiley, Koenig, Carroll, Branch, and Arizona
State Legislature—definitively resolving the question against them. In these
circumstances, Applicants cannot demonstrate a “reasonable probability” that this
Court will grant certiorari, and they certainly cannot demonstrate a “fair prospect”
that a majority of this Court would vote to reverse.6
It would be remarkable for this Court to intrude upon state sovereignty by
entering a stay under these circumstances, and the sprinkling of dissents and
concurrences Applicants cite hardly counsel otherwise. Applicants repeatedly cite a
dissent from denial of certiorari in Colorado General Assembly v. Salazar, 541 U.S.
6

Legislative Applicants’ view that the Elections Clause “vests [redistricting]
authority” exclusively in state legislatures and Congress, Leg. Appl. 9, would
seemingly require this Court to overrule Wesberry v. Sanders, 376 U.S. 1 (1964).
There, the Court rejected the plurality opinion in Colgrove v. Green, 328 U.S. 549
(1946)—which had concluded that the Elections Clause’s reference to “Congress”
deprives federal courts of power to review congressional maps. Wesberry, a
foundational redistricting decision, explained: “[N]othing in the language of [the
Elections Clause] gives support to a construction that would immunize state
congressional apportionment laws … from the power of courts to protect the
constitutional rights of individuals from legislative destruction.” 376 U.S. at 6-7.
20

 1093 (2004), but that concerned the very different question whether a state court
could prohibit the legislature from redistricting. The petitioners there did “not
disput[e] state courts’ remedial authority to impose temporary redistricting plans
‘so long as the legislature does not fulfill its duty to redistrict’” in a lawful manner.
Id. at 1094. Here, the state high court has given the legislature the opportunity to
redistrict in a constitutional manner and will step in only if the legislature fails to
do so—again, precisely the procedure this Court unanimously blessed in Growe.
Similarly, no part of the three-Justice concurrence in Bush v. Gore, 531 U.S.
98 (2000), which concerned presidential elections, suggests that the Court should
overrule decades of precedent confirming that state courts have power to remedy
unconstitutional congressional districting statutes. Cf. Leg. Appl. 14. And in Ohio
ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916) (cited at Leg. Appl. 15), the Court
rejected any notion that a congressional districting plan that was contrary to “the
Constitution and laws of the state was yet valid and operative.” Id. at 568.
C.

The Remedy the Pennsylvania Supreme Court Ordered Is
Consistent With Precedent in Pennsylvania and Other States

Nothing about the particular criteria the Pennsylvania Supreme Court
adopted in fashioning a remedy in this case warrants this Court’s intervention, and
Legislative Applicants have waived any contrary argument. The court instructed
the legislature, in drawing a remedial map, to follow traditional districting criteria,
namely, equalizing population, maximizing compactness, ensuring contiguity, and
minimizing political subdivision splits. Leg. App’x A3. Applicants claim that the
Pennsylvania Supreme Court “wove” these criteria “from whole cloth,” Leg. Appl.

21

 10-11, but that is not true.
More than 25 years ago, in Mellow v. Mitchell, 607 A.2d 204 (Pa. 1992), the
Pennsylvania Supreme Court adopted a remedial congressional map using these
very criteria. The Pennsylvania Supreme Court picked among competing plans
proposed by the parties based on criteria including “avoid[ing] splitting of political
subdivisions and precincts,” “preserv[ing] communities of interest,” and
“compactness.” Id. at 208, 215-25. Two decades later, the court reaffirmed that
“compactness, contiguity, and respect for the integrity of political subdivisions not
only have deep roots in Pennsylvania constitutional law,” but also “represent
important principles of representative government.” Holt v. 2011 Legislative
Reapportionment Comm’n, 38 A.3d 711, 745 (Pa. 2012).
At oral argument before the Pennsylvania Supreme Court, Legislative
Applicants’ counsel acknowledged that “compactness[] and avoiding splitting
political subdivisions were things that this court identified in Mellow when this
court identified what criteria it was going to use when adopting a map.” Oral
Argument Video at 1:29:49-1:30:21. Subsequently, counsel confirmed that the
criteria were valid criteria for evaluating the constitutionality of congressional
districts in Pennsylvania. Id. at 1:32:18-47.
In short, these criteria are well-established in Pennsylvania, and Legislative
Applicants have waived any challenge to their use in this case. That waiver
precludes the Court from granting a stay on the basis of an objection to the
Pennsylvania Supreme Court’s remedial choices.

22

 What is more, disagreement with the criteria the Pennsylvania Supreme
Court imposed would not present a basis for a stay even absent the waiver.
Legislative Applicants make no serious argument that it offends the federal
constitution for a state to require congressional districts to be compact and to avoid
splitting political subdivisions, much less as part of a remedial measure. This Court
has repeatedly recognized these criteria as valid. E.g., Reynolds v. Sims, 377 U.S.
533, 578 (1964); Shaw v. Reno, 509 U.S. 630, 646 (1993).
In Growe, the state court used compactness and avoiding subdivision splits as
criteria in drawing its own plan, and this Court forbade federal courts from
interfering. Supra § I.B. And state courts around the country routinely use these
very criteria in ordering or generating remedial congressional districting plans
where an existing plan violates the state or federal constitution.7 Like the
Pennsylvania Supreme Court, none of these courts were engaging in “judicial
activism” or “rank legislation.” Leg. Appl. 2, 11, 14. They were doing what courts
do: fashioning an appropriate equitable remedy to redress a constitutional
violation. Nothing about the Pennsylvania Supreme Court’s order warrants a stay
any more than it did in these cases dating back decades.

7

See, e.g., League of Women Voters v. Detzner, 179 So.3d 258, 288-89 (Fla. 2015);
Beauprez v. Avalos, 42 P.3d 642, 652 (Colo. 2002); Hall v. Moreno, 270 P.3d 961, 966
(Colo. 2012); In re Apportionment Comm’n, 36 A.3d 661 (Conn. 2012); Zachman v.
Kiffmeyer, at *15, 2002 Minn. LEXIS 884 (Minn. Spec. Redis. Panel Mar. 19, 2002);
Hippert v. Ritchie, 813 N.W.2d 391, 395 (Minn. Spec. Redis. Panel 2012); In re 2003
Apportionment of the State Senate and U.S. Congressional Districts, 827 A.2d 844,
847 (Maine 2003); Jepsen v. Vigil-Giron, 2002 WL 35459962 (N.M. Dist. Jan. 8,
2002); Alexander v. Taylor, 51 P.3d 1204, 1211 (Okla. 2002); Wilson v. Eu, 823 P.2d
545, 549-50 (Cal. 1992); Legislature v. Reinecke, 516 P.2d 6, 10, 13 (Cal. 1973).
23

 Applicants argue that allowing state courts to enforce state constitutions
means that “no reins would exist” to restrain state courts, that “any state-court
created criteria are possible,” and that state courts could require the legislature to
“favor one political party or interest group” or require “at large” elections or
“proportional representation.” Leg. Appl. 16-17. Not so. As just noted, state courts
have been enforcing state constitutions in the context of congressional redistricting
for a century without any calamitous result or violation of federal law.
Applicants attempt to distinguish the decision below from some other state
court cases reviewing congressional districting maps under state constitutions,
arguing that in other cases a state “statutory or constitutional provision plainly
empowered such review.” Leg. Appl. 10 n.6. Such a distinction appears nowhere in
the Elections Clause and is not enforceable by this Court. A holding that this Court
must decide in every congressional apportionment case whether a state
constitutional provision “plainly empowers” state court review would effect an
unprecedented intrusion upon state sovereignty and a radical rewriting of centuries
worth of precedent establishing that this Court lacks the power to review decisions
of a state high court interpreting state constitutional law. In any event,
Pennsylvania’s Constitution “plainly empowers” judicial review, including the
Pennsylvania Supreme Court’s authoritative interpretation of the state
constitutional provisions at issue here.

24

 D.

Legislative Applicants Are Estopped From Asserting an
Elections Clause Challenge and Intervenor Applicants Waived
Any Such Challenge

There is a further, dispositive vehicle problem that will prevent this Court
from granting certiorari: Legislative Applicants are judicially estopped from
asserting their Elections Clause argument in this Court. That alone provides
sufficient basis to deny their request for a stay.
To determine if a party is judicially estopped under federal law, courts
consider whether (1) the party’s position is “clearly inconsistent with its earlier
position”; (2) “the party has succeeded in persuading a court to accept that party’s
earlier position”; and (3) “the party seeking to assert an inconsistent position would
derive an unfair advantage ... if not estopped.” New Hampshire v. Maine, 532 U.S.
742, 750-51 (2001) (internal quotation marks omitted). All three factors are met
here. Indeed, it is difficult to imagine a clearer case where estoppel is warranted “to
prevent improper use of judicial machinery.” Id.
1.

Legislative Applicants advanced the opposite of their current position

in separate federal litigation. On October 16, 2017, in a federal lawsuit challenging
the 2011 map, Legislative Applicants asked the federal court to stay or abstain
based on this state court action. Agre v. Wolf, No. 17-4392, ECF No. 45-2 (E.D. Pa.
Oct. 2, 2017). Citing Growe, they argued that under “long-accepted and well-settled
principles of abstention,” the federal court was “required” to defer to the state court.
Id. at 24-25 (capitalization omitted). Under Growe, they argued, a state’s “judicial

25

 branch” is a valid and preferable “agent[] of apportionment” with respect to
congressional redistricting. Id. at 25.
When the district court denied the motion, Legislative Applicants sought
emergency mandamus relief in this Court. They explained that, under this Court’s
precedent and “principles of federalism,” “federal judges are ‘required … to defer
consideration of disputes involving redistricting where the State, through its
legislative or judicial branch, has begun to address that highly political task itself.’”
Emergency Mandamus Pet’n 13-14, In re Michael C. Turzai, No. 17-631 (2017)
(quoting Growe, 507 U.S. at 33) (emphasis by Legislative Applicants). In a section
titled “The District Court Usurped the Power of the Pennsylvania State Courts,”
Legislative Applicants wrote:
[T]here can be no question that the Pennsylvania state courts have
already begun the “highly political task” of addressing the challenges
to the 2011 Plan. Because federal courts are required to defer
adjudication of a redistricting matter that a state legislative or judicial
branch is already considering, the District Court usurped the power of
the Pennsylvania appellate courts[.]
Id. at 18-19.
While this Court denied mandamus, Legislative Applicants have now
succeeded in persuading a lower federal court to enter a stay on the basis of this
exact same argument. On November 20, 2017, in a second federal lawsuit
challenging Pennsylvania’s 2011 map, Legislative Applicants again argued that the
federal court was “required” to defer to the Pennsylvania state courts, because state
courts are valid and preferable “agents of apportionment.” Diamond v. Torres, No.
5:17-cv-5054, ECF No. 26-4 at 23-26 (E.D. Pa.). The federal court granted an initial
26

 stay on November 22, and subsequently extended the stay through January 8, 2018
on the basis of this state court action. Diamond, ECF Nos. 40, 48.
After the stay expired, Legislative Applicants filed a new stay motion, again
asserting that the “legislative or judicial branch” of a state has authority to review
and remedy congressional districting plans. Diamond, ECF No. 69-2 at 16
(emphasis in original). Legislative Applicants also noted that, in Scott v. Germano,
381 U.S. 407, 409 (1965), this Court expressed “the preference to have state
legislatures and state courts, rather than federal courts, address reapportionment.”
Diamond, ECF No. 69-2 at 16.
On January 22, 2018—just days before filing their stay application in this
Court—Legislative Applicants filed a reply brief in Diamond again asserting that
the federal court had to defer to the Pennsylvania Supreme Court. Diamond, ECF
No. 81. They argued that the Diamond court was “required to defer to
Pennsylvania’s legislative, executive and judicial branches” under the “plain
language of Growe.” Id. at 2, 5. On January 23, the Diamond court stayed the case
indefinitely “upon consideration of Legislative Defendants’ motion to stay (Doc. No.
69), as well as the per curiam order entered by the Supreme Court of Pennsylvania
on January 22, 2018 in League of Women Voters of Penn. v. Commw. of Penn.”
Diamond, ECF No. 84.
Under these circumstances, there can be no dispute that Legislative
Applicants have taken inconsistent positions across these cases. In their stay
application to this Court, Legislative Applicants argue that the federal Elections

27

 Clause “vests authority” over congressional redistricting only in state legislatures
and Congress, and “[s]tate courts enjoy none of this delegated authority.” Leg.
Appl. 9. But Legislative Applicants said the opposite to the Diamond court, not to
mention to this Court in requesting the extraordinary relief of a writ of mandamus.
They asserted in the federal lawsuits that state courts are “agents of
apportionment” whose authority to review congressional plans is so unquestioned
that federal courts are “required” to defer. Diamond, ECF No. 69-2 at 16, No. 81 at
2.
2.

Legislative Applicants “succeeded” in making this argument to the

federal Diamond court. New Hampshire, 532 U.S. at 750-51. The Diamond court
has now granted a full and indefinite stay based on Legislative Applicants’
argument that state courts have authority and primacy in addressing congressional
redistricting challenges. Diamond, ECF No. 84. Legislative Applicants have
accrued and will continue to accrue significant benefits from this stay: it will allow
them to avoid discovery and trial in federal court and preclude the Diamond
plaintiffs from obtaining relief from the federal court in time for the 2018 elections.
3.

Judicial estoppel is necessary to prevent Legislative Applicants from

“deriv[ing] an unfair advantage” and abusing the “judicial machinery.” New
Hampshire, 532 U.S. at 750-51. If this Court were to grant a stay, Legislative
Applicants will have obtained two simultaneous stays in two different courts based
on diametrically opposed positions: (1) a stay in Diamond based on the argument
that state courts have primary authority to review and remedy congressional

28

 districting challenges; and (2) a stay in this Court based on the argument that state
courts have no authority to review and remedy congressional districting plans. The
judicial estoppel doctrine exists precisely to prevent such results.
The separate application for a stay by the Intervenor Applicants does not
avoid this vehicle problem. Intervenor Applicants did not raise an Elections Clause
(or any federal law argument) during the state court proceedings below, and they
have therefore waived the argument. Sprietsma v. Mercury Marine, 537 U.S. 51, 56
n.4 (2002). Because Legislative Applicants are judicially estopped from pursuing
the argument and Intervenor Applicants did not raise it below, there is no proper
party to raise the argument before this Court. See FTC v. Phoebe Putney Health
Sys., Inc., 568 U.S. 216, 226 n.4 (2013).8
II.

There Is No Likelihood of Irreparable Harm and the Balance of
Equities Weighs Against a Stay
It is in no party’s interest to stay the order in this case. Applicants’

objections to the court-ordered remedial process are insubstantial and ignore the
facts and the law. Pennsylvania and other states around the country have
implemented remedial congressional maps in less time than is available here. The
new map will be in place well before the primary and general elections, and the

8

Legislative Applicants’ Elections Clause argument is also judicially estopped
under Pennsylvania law. In re Adoption of S.A.J., 838 A.2d 616, 620 (Pa. 2003).
The possibility that the Pennsylvania Supreme Court will so hold could create an
adequate and independent state ground that precludes this Court’s review. See
Smith v. Texas, 550 U.S. 297, 325 (2007) (Alito, J., dissenting) (“[I]n cases in which
this Court has reversed a state-court decision based on a possible federal
constitutional violation, it is not uncommon for the state court on remand to
reinstate the same judgment on state-law [procedural] grounds” such as waiver.).
29

 Pennsylvania Supreme Court gave Legislative Applicants what they asked for—
three weeks—to draw a new map. And even if Applicants were right that there is
insufficient time to implement a new map, federal law would dictate at-large
elections, not the reinstatement of Pennsylvania’s unconstitutional 2011 map.
Finally, the balance of equities is not even close given the extreme and irreparable
harm of forcing millions of Pennsylvania voters to choose their members of
Congress based on a map that the state’s highest court has declared invalid under
the state’s own constitution.
1.

Legislative Respondents assert that “irreparable injury is certain”

because the Pennsylvania Supreme Court has enjoined a state statute “‘enacted by
representatives of [Pennsylvania’s] people.’” Leg. Appl. 18 (quoting Maryland v.
King, 133 S. Ct. 1, 3 (2012)). But, as the Pennsylvania Supreme Court held in an
unreviewable ruling, this particular state statute violates the state constitution. An
inability to enforce an unconstitutional law is not a cognizable injury.
Legislative Respondents assert that adopting a new map for 2018 will cause
irreparable harm because it will cause “voter confusion” and “depress turnout.”
Leg. Appl. 19. They put on no evidence of this below, and bare speculation cannot
support a stay. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).
There will be three months between the adoption of the new map in mid-February
and the May 15 primaries, and nine months until the general elections in
November. Unlike the Secretaries of State amici from other jurisdictions, the
officials actually charged with administering elections in Pennsylvania—the

30

 Executive Branch Defendants—have made clear that there will be no difficulty
educating voters and administering orderly elections in this timeframe.
In fact, Pennsylvania voters will have almost as much time to become
“familiar” with the new district boundaries and candidates as they did following
enactment of the 2011 map itself. Leg. Appl. 18-19. The 2011 map was signed into
law on December 22, 2011 and used in the primaries four months later, on April 24,
2012. Here, a new map will be in place by February 19, 2018, three months before
the May 15, 2018 primaries. There is zero indication that Pennsylvanians had any
difficulty learning the “facts, issues, and players” in the four months from December
2011 to April 2012. Leg. Appl. 19. Applicants offer no reason to believe that the
three months from February to May 2018 will be any different.
What is more, the Commonwealth of Pennsylvania has successfully
implemented court-ordered congressional plans in less time than it has here. In
Mellow, the Pennsylvania Supreme Court adopted a new map on March 10, 1992,
and that map was used at the April 28, 1992 primary elections, just a month and a
half later. 607 A.2d at 206, 225. That is half the time available here. The Mellow
court also gave candidates nine days to circulate and file nominating petitions, id.
at 244, also less time than the 15 days they will have here. This Court denied
review in Mellow. See 506 U.S. 828 (1992). Thus, the Commonwealth of
Pennsylvania has implemented new congressional district boundaries for an
upcoming election before without incident, and it will do it again here.

31

 This Court similarly has held that state courts may properly adopt a new
congressional districting map less than two months before the elections. In Growe,
the Minnesota state court planned to adopt a new congressional map in early March
1992, less than two months before primary elections in late April and early May
1992. 507 U.S. at 31, 37 n.2. In holding that the federal court had improperly
enjoined the state court’s adoption of a new plan on this schedule, this Court
rejected the view that “the state court was … unable to adopt a congressional plan
in time for the elections.” Id. at 37. With almost two months to go, there was no
need for a “last-minute federal-court rescue of the Minnesota electoral process.” Id.
Courts typically have stayed orders affecting elections only when those orders
were entered much closer to the election at issue. In Purcell v. Gonzalez, 549 U.S. 1
(2006) (cited at Leg. Appl. 3, 18-19; Int. Appl. 2, 15, 20), this Court blocked a lower
court’s order enjoining enforcement of Arizona’s voter-identification law barely four
weeks before the 2006 general elections. By contrast, here, the May 2018 primaries
are still almost four months away. The state agencies charged with implementing
the new plan have concluded that adopting a new plan by February 19 will not
“compromis[e] the election process in any way.” Leg. App’x B ¶¶ 35, 448-51.
Nor does this Court’s order deny the political branches a “genuine
opportunity” to enact legislation creating a new map, as Legislative Applicants
claim. Leg. Appl. 20. Legislative Applicants waived any such argument when they
told the Pennsylvania Supreme Court at oral argument that they “would like at
least three weeks.” Oral Argument Video at 1:46:05-1:46:13. The state high court’s

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 order gives them what they asked for—19 days for the General Assembly to pass a
bill (including 15 business days) and six days after that for the Governor to sign or
veto it. This is at least as much time as it took to enact the 2011 map. Republicans
in the General Assembly first revealed the 2011 map on December 14, 2011, and
within eight days the bill had been passed and signed into law.
Legislative Applicants’ contention that the General Assembly has “no
guidance” on how to draw a valid map is simply wrong. Leg. Appl. 13; accord id. at
20. The Pennsylvania Supreme Court’s order is clear as day: the remedial map
must have “congressional districts composed of compact and contiguous territory; as
nearly equal in population as practicable; and which do not divide any county, city,
incorporated town, borough, township, or ward, except where necessary to ensure
equality of population.” Leg. App’x A3. With this guidance, Legislative Applicants’
position that they cannot figure out how to draw a map that passes constitutional
muster is hardly credible.9
Intervenor Applicants contend that adopting a new map for 2018 will cause
them irreparable harm because it will harm the “exercise of their constitutional
rights to participate in the political process” by forcing them to “start anew” in their
campaigning activities. Int. Appl. 16. But they have never relied on any federal
9

The Pennsylvania Supreme Court required districts to be drawn as nearly equal in
population as is practicable (Leg. Appl. 20) because that is the language from this
Court’s precedent and because Pennsylvania’s 2010 census population is not evenly
divisible by 18, not because the state court was sanctioning unconstitutional
population inequality. As for the Voting Rights Act, of course federal law is a
backstop and nothing in the state high court’s order suggests otherwise. And the
court’s decision to retain authority to review the legislature’s remedial map (Leg.
Appl. 20) for constitutionality is standard practice.
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 constitutional provision in this case, nor have they identified a cognizable
constitutional “right” to perpetuate unconstitutional congressional districts.
2.

Applicants’ Purcell argument also rests on the false premise that if

there is insufficient time to implement a remedial map, the 2018 elections will go
forward under the 2011 map. In fact, if there were not enough time to implement a
new map, then a federal statute would provide the remedy. As this Court has
explained, 2 U.S.C. § 2a(c)(5) prescribes mandatory procedures where (i) a state lost
a congressional seat from the prior decade’s reapportionment (as occurred in
Pennsylvania); (ii) the state does not have a congressional plan enacted “in the
manner provided by the law thereof”; and (iii) “there is no time for either the State’s
legislature or the courts to develop one.” Branch, 538 U.S. at 275 (plurality
opinion); see Ariz. State Legislature, 135 S. Ct. at 2670. In those circumstances,
§ 2a(c)(5) requires at-large elections for a state’s entire congressional delegation.
Applicants’ supposition that the 2018 elections should proceed under the
2011 map if there is not time to implement a new map is therefore wrong.
Section 2a(c)(5) bars the use of a congressional plan that was not enacted “in the
manner provided by state law,” and the Pennsylvania Supreme Court has held that
the 2011 map was not enacted in the manner provided by Pennsylvania law. See
Arizona State Legislature, 135 S. Ct. at 2670 (“Section 2a(c) sets forth congressionalredistricting procedures ... if the State, ‘after any apportionment,’ ha[s] not
redistricted ‘in the manner provided by state law.’” (bracketing omitted)); Branch,
538 U.S. at 274 (plurality opinion) (same). Thus, if this Court were to grant a stay

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 on Applicants’ theory that there is not enough time, then § 2a(c)(5) would require 18
at-large elections in 2018.
But there is no reason to resort to § 2a(c)(5)’s procedures. The Pennsylvania
Supreme Court set forth an orderly process to develop a remedial plan—exactly in
the way the majority portion of Branch held that 2 U.S.C. § 2c directs. This
remedial process is consistent with the congressionally-prescribed scheme, with
longstanding Pennsylvania precedent, and with remedial plans that state courts
have implemented across the country. See, e.g., Favors v. Cuomo, 2012 WL 928223,
at *1 n.4, 3 (E.D.N.Y. Mar. 19, 2012) (adopting remedial congressional plan drawn
by special master Nathaniel Persily to avoid at-large elections under § 2a(c)(5)).
3.

Legislative and Intervenor Applicants note that this Court granted

stays in Whitford v. Gill, No. 16-1161, and Rucho v. Common Cause, No. 17A745.
But those cases involve federal constitutional claims brought in federal courts that
were subject to direct review in this Court. This case involves exclusively state
constitutional claims decided by the state’s highest court. The Pennsylvania
Supreme Court has already held that the 2011 map violates the Pennsylvania
Constitution regardless of what this Court says in the pending federal cases.
4.

On the balance of equities, Legislative Applicants stunningly suggest

that this case involves only the “paltriest” of rights to which Plaintiffs do not attach
any real “significance.” Leg. Appl. 20-21. Voting is a “fundamental political right”
because it is “preservative of all rights.” Reynolds, 377 U.S. at 562. “[O]nce a
State’s legislative apportionment scheme has been found to be unconstitutional, it

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 would be the unusual case in which a court would be justified in not taking
appropriate action to insure that no further elections are conducted under the
invalid plan.” Id. at 585. Plaintiffs and millions of other Pennsylvanians have an
overwhelming interest in participating in fair elections under a valid map.
Legislative Applicants argue that their constitutional violation was “not
severe.” Leg. Appl. 21. The 2011 map is the worst partisan gerrymander in
Pennsylvania’s history and among the worst in American history. In each of the
three election cycles under the 2011 map, Republicans won up to five seats more
than they would have under a non-partisan plan, including in 2012 when they won
13 of 18 seats with only a minority of the statewide vote.
Legislative Applicants argue that adopting a new map for 2018 will
undermine the “integrity” of the elections. Leg. Appl. 3, 18. But nothing has done
more damage to the integrity of Pennsylvania’s elections than Legislative
Applicants’ historically extreme gerrymander. Gerrymandering undermines
citizens’ trust in government and strikes at the foundation of representative
democracy. Forcing Pennsylvanians to vote in districts that their state’s highest
court has declared invalid under the state constitution would cause lasting damage.
Federal and the integrity of Pennsylvania’s elections will be best served by
denying a stay and allowing the Commonwealth of Pennsylvania to adopt a new
map that comports with the Pennsylvania Constitution.
CONCLUSION
The applications for a stay should be denied.

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 Dated: February 2, 2018 Respectfully submitted,

 

4k

MARY M. MCKENZIE DAVID P. GERSCH
MICHAEL CHURCHILL JOHN A. FREEDMAN
BENJAMIN D. GEFFEN R. STANTON JONES
PUBLIC INTEREST LAW CENTER ELISABETH S. THEODORE
1709 Benjamin Franklin Parkway Counsel of Record

2nd Floor DANIEL F. ACOBSON
Philadelphia, PA 19103 ARNOLD PORTER

(215) 627-7100 KAYE SCHOLER LLP

601 Massachusetts Ave. NW
Washington, DC 20001

(202) 942-5000


Counsel for Respondents League of Women Voters of et al.

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