The Washington PostDemocracy Dies in Darkness

Pennsylvania Republicans lost the redistricting battle. Now, they’re declaring war on the courts.

Sen. Patrick J. Toomey (R-Pa.) is one of a number of Pennsylvania Republicans exploring whether the state's Supreme Court justices should be impeached. (AP Photo/Matt Rourke, File)
Placeholder while article actions load

Republican lawmakers from Pennsylvania who lost a gerrymandering case before the state’s Supreme Court are now calling for justices who issued the ruling to be impeached.

The court ruled this year that the congressional map drawn by Republican legislators in 2011 was a partisan gerrymander that “clearly, plainly, and palpably” violated the state constitution, and the justices ordered the state’s legislature and governor to draw a new map. Shortly thereafter, Republican state Rep. Cris Dush circulated a letter to his colleagues saying that the court’s majority “engaged in misbehavior in office” because the ruling “overrides the express legislative and executive authority” to create laws.

“Wherefore,” Dush concluded, “each is guilty of an impeachable offense warranting removal from office and disqualification to hold any office or trust or profit under this Commonwealth.”

For several weeks, Dush was the only lawmaker openly advocating this idea. Then, after Pennsylvania's Republican legislative leaders and Democratic governor were unable to agree on a new map, the court stepped in and drew one of its own with the help of an independent redistricting expert from Stanford University.

The court’s new map largely undid the Republican gerrymander, creating 10 Republican-leaning and eight Democratic-leaning House seats, as estimated using 2016 presidential election returns. Outside redistricting experts who were not involved with the case praised the new map, calling it “fairer” and “much more competitive” than the old one.

The new map is a better reflection both of the composition of the state’s electorate, which tends to be divided evenly between Democrats and Republicans, and of the traditional redistricting criteria used to draw maps in Pennsylvania and elsewhere.

But because the 2011 Republican-drawn map was skewed so strongly toward the GOP, the net result is that Republicans are likely to lose three or more seats in the state’s House delegation. And now, the calls for judicial impeachment are growing louder.

Republican congressman Ryan Costello, who is facing a very real possibility of losing his seat as a result of the redistricting, called the court’s independent redistricting plan “politically corrupt.” He said, “I think the court did enough in the way of judicial activism to be impeached.”

Republican U.S. Sen. Patrick J. Toomey weighed in this week as well, saying that the court’s ruling was a “blatant, unconstitutional, partisan power grab that undermines our electoral process” and that the question of whether it rises to the level of impeachment is “a conversation that needs to happen.”

Judicial impeachment in Pennsylvania requires the support of a majority of House members and two-thirds of the Senate. Republicans currently hold enough seats in both chambers to carry out an impeachment without any Democratic support.

Pennsylvania House Speaker Mike Turzai and Senate President Pro Tempore Joe Scarnati have been sharply critical of the court, saying that it “conspicuously seized the redistricting process.” But they have not weighed in on the question of impeachment.

Legal experts say the comments from other Republican lawmakers are alarming.

“Using impeachment — even talking about impeachment in a serious fashion — as a means to express disagreement with one particular substantive decision is a very dangerous approach to both the structure of government and the rule of law, and a serious threat to the independence of the judiciary,” said Justin Levitt of Loyola Law School in Los Angeles.

Levitt said there are a number of reasonable objections to make to the court’s ruling, including its definition of gerrymandering and the time frame in which it required new maps to be drawn. But, he said, “that’s a standard-issue fight over substance and procedure, not about whether the Justices were defaulting on their obligations to act as Justices.”

Rick Hasen, a professor of law and political science at the University of California at Irvine, similarly said that “it undermines rule of law to impeach judges because you disagree with their decisions.” He suggested that lawmakers concerned about partisanship on the court should consider a “more worthy reform,” such as allowing the state’s Supreme Court justices to be appointed by lawmakers. Right now, they’re elected by voters in “partisan elections.”

And Michael Li, redistricting and voting counsel at New York University’s Brennan Center, said that Pennsylvania Republicans could take partisanship out of redistricting completely by putting the process in the hands of an independent commission. “If Rs really believe this is a bad state supreme court,” he wrote on Twitter, “they should pass the great bipartisan redistricting reform amendment currently before them.”

So far, however, Republican leadership has refused to take the first step of scheduling a hearing on that bill. This week, the leaders filed an application to the U.S. Supreme Court for an emergency stay of the redistricting decision. But the Supreme Court has already turned down one request to intervene in the case, and experts say this request is likely to be denied as well.

“In our system, judges aren’t supposed to always act in a way that legislators like,” Levitt said.

Correction: A previous version of this story misstated a congressman's name. It is Ryan Costello, not Chris Costello.