Pennsylvania’s past redistricting processes led to some of the most severe gerrymandering in the country. Could this time be different?
Victor Martinez testifies at a Pennsylvania Legislative Reapportionment Commission hearing on October 13. Source: The Legislative Guide to Redistricting in Pennsylvania
“In the 2017 municipal elections, the top surnames that came out to vote [in the city of Allentown] were Miller, followed by Rodriguez, Smith, Rivera, Martinez, and Johnson,” said Victor Martinez. He counted the names on his fingers, glancing back and forth between his notes and the Committee. “About twelve percent of the voters in 2017 were Hispanics in the city of Allentown.”
In 2019, he continued, the top surnames were Rodriguez, Miller, Smith, Rivera, Gonzales, and Perez. 15.4% of voters were Hispanic, he said.
“In the 2021 municipal elections, the top surnames were Rodriguez, Rivera, Gonzales, Martinez, Torres, and Ortiz,” Martinez said, counting off the names on his fingers, then closing them into a fist. He suppressed a smile. “Notice I didn’t mention Miller. Notice I didn’t mention Johnson.”
In the 2020 general election the previous year, the top surnames were the same as in 2021. According to Martinez, twenty-six percent of the voters were Hispanic or Latino.
“The Hispanic community is not only growing in population, but it’s also growing in their interests to be involved in their communities, and their interests to want to have a voice in their communities,” Martinez said. “That’s why I’m here today, to say well, when you make these decisions where our lines should be, please keep in mind that there’s a community that is growing, that there’s a community who wants to be heard but has nobody here speaking for them.”
Martinez was testifying in a public hearing in Harrisburg on October 13 held by the Legislative Reapportionment Commission, the group in charge of Pennsylvania’s 2021 legislative redistricting. Following the 2020 Census, this commission, alongside the legislature determining the congressional map, is currently drawing the districts that will dictate how Pennsylvanians are represented in the state legislature and the U.S. House of Representatives for the next decade.
Past redistricting efforts in the state have resulted in gerrymandering, the practice of manipulating district boundaries for partisan gain. After the 2011 congressional map was enjoined by the state Supreme Court and advocacy groups’ efforts to reform the legislative redistricting process ran out of time, Pennsylvanians like Martinez have few assurances their voices will be heard this time around.
“Out of the two hundred and three representatives, we only have four Hispanics, and out of the fifty senators we got none,” Martinez said, speaking about the state House and Senate. “And for us, with all due respect, that’s not representation. Those are not enough voices to come to the table and present our needs as a community.”
“Goofy Kicking Donald Duck”
The process for the congressional map is a bill that must pass the legislature with a simple majority and be signed by the governor.
In 2011, Republicans controlled all three branches of government at the state level. They introduced a redistricting bill to which they only added descriptions of the congressional districts on the morning of the vote. The bill passed.
The 2011 congressional districts. Source: Ballotpedia
In 2017, the League of Women Voters and individual voters filed a lawsuit alleging that the 2011 congressional districts map was an unconstitutional partisan gerrymander.
“The 2011 Plan was the product of a national movement by the Republican Party to entrench its own representatives in power by utilizing the latest advances in mapmaking technologies and big data to gerrymander districts more effectively than ever before,” the plaintiffs claimed.
It described techniques known as “cracking” and “packing,” where mapmakers splinter communities across multiple districts (in the first case) or consolidate all of a geographically disparate community into one district. In the case of “cracking,” members of the “cracked” community have less power in elections because their influence is diluted across multiple districts. With “packing,” the community then can only exert their influence over one district.
The plaintiffs claimed that, in the case of the 2011 plan, mapmakers “packed” Democratic voters into five districts that were overwhelmingly Democratic and “cracked” the remaining Democratic voters by spreading them across the other 13 districts so that Republicans would have a majority of voters in those districts.
One example is the notorious 7th district. The plaintiffs alleged that Democratic voters in Chester were carved out of the 7th district and packed into the 1st district instead, which was reliably Democratic. The winner of the Washington Post’s “Name that District” contest called it “Goofy Kicking Donald Duck.”
The 7th Congressional District, 2011. Source: The Washington Post
“Under the Constitution, the districts are supposed to be compact and contiguous, and they weren’t. I mean, Goofy kicking Donald? Obviously that’s not compact and it’s not contiguous,” said Marian K. Schneider, an elections lawyer for the ACLU of Pennsylvania.
One part of the 7th district was so narrow that the district was held together by the parking lot of a Creed’s Seafood and Steaks in King of Prussia.
Source: The Public Interest Law Center
The state Supreme Court ruled in 2018 that the 2011 congressional map violated the Pennsylvania Constitution and enjoined its use. The Court asked the General Assembly to submit a new map, but when they failed to do so, the Court adopted a new map.
The 2018 remedial congressional map. Source: Ballotpedia
“One person’s integrity...for the next ten years of Pennsylvania politics”
While the congressional districts are approved in a simple majority in the legislature and sent to the governor for approval, the legislative districts for the Pennsylvania state House and Senate are drawn by a commission consisting of four legislators and a fifth impartial member.
This process has produced controversial outcomes in the past. In 2011, the state Supreme Court rejected the first maps the commission drew, stating that the districts cut through too many municipalities. The commission drew new maps, and the Supreme Court approved them in 2013.
One way to measure the extent of cracking and packing is the “efficiency gap.” This calculates the number of “wasted” votes in each district. Any vote for the winning candidate above the number the candidate needs to win and any vote for the candidate who ends up losing are considered wasted. In the 2012 House and Senate districts, the difference in wasted votes between Democrats and Republicans was between 1.1 and 1.2 million.
Fair Districts PA, a coalition working for redistricting reform, advocated in recent years for an amendment to the state constitution that would create an independent redistricting commission. The idea was to create a citizens’ commission that would employ substantive criteria for mapmaking and take the legislative redistricting process out of politicians’ hands.
“We need a better process,” said Carol Kuniholm, Chair of Fair Districts PA, at a coalition meeting on October 19. “We need an independent commission or we need far, far better rules for transparency over the whole process. It’s something really important to watch, and it will shape Pennsylvania politics for the next decade.”
Bills in the House and Senate for an independent commission did not pass in time for the 2021 redistricting.
Independent redistricting commissions are gaining traction nationwide. In 2010, California and Arizona were the only states with independent commissions drawing legislative and congressional maps. Now, Colorado and Michigan have independent commissions for both processes as well.
“As long as you have some partisan influence on how the lines are drawn, they are never going to be drawn right. That’s why you need an independent commission,” said Schneider.
When time ran out for proposals for an independent commission in mid-2020, the Legislative and Congressional Redistricting Act (LACRA) was introduced in the House and Senate. LACRA introduced stricter constraints for how lawmakers draw congressional and legislative districts, including clear and measurable redistricting criteria, and added requirements for increased transparency throughout the redistricting process.
In June of 2021, the General Assembly recessed without adopting LACRA.
As in previous years, the Legislative Reapportionment Commission (LRC) in charge of the effort consists of House and Senate minority and majority leaders and a nonpartisan member selected by the state Supreme Court after the other members of the commission failed to agree on who that should be. The state Supreme Court selected Mark Nordenberg, a law professor at the University of Pittsburgh.
“So basically we’re counting on that one person’s integrity, honor, and courage for the next ten years of Pennsylvania politics, which is not the way that it should work,” Kuniholm said.
What is different this time?
On the congressional redistricting side, things look a lot different than they did in 2011. Control of the three branches of government at the state level is now divided. Republicans control the House and Senate while Democrats hold the majority in the Supreme Court, and Governor Tom Wolf is a Democrat.
The case where the state Supreme Court ruled the 2011 congressional map unconstitutional set a legal precedent. Furthermore, 2020 Census data resulted in Pennsylvania losing a seat in the U.S. House of Representatives. This deters the legislature from stalling while drawing the new map. In the event the legislature does not pass a bill for a new map in time, the state Supreme Court would step in and draw the map.
Citing that the legislature is deterred from stalling and that the governor has veto power, Kuniholm predicted that the congressional map will be “fairly fair,” with eight “safe” Republican seats, eight safe Democratic seats, and one “competitive” seat.
Despite the fact that LACRA did not pass, the LRC has demonstrated some commitment to transparency through holding eight public hearings to date. Some cheered the choice of Mark Nordenberg as the fifth member of the commission.
The LRC voted 3-2 in August to count people incarcerated in Pennsylvania at the address where they lived prior to being imprisoned. Nordenberg was the tie-breaking vote. Though the decision was later scaled back to exclude those who are serving sentences that will end after April 1, 2030, some saw this as an indicator for how Nordenberg may act in the redistricting going forward.
“He seems to be signaling that he’s a person of integrity and wants to do it fairly,” Kuniholm said.
“I know that it’s going to be a lot of work, and there may be contentious moments along the way,” Nordenberg said, as reported by Spotlight PA. “But it is an extraordinarily important process for Pennsylvania’s democracy.”
What's at stake?
Maps with bizarre shapes can be compelling, but the maps alone do not convey the impact gerrymandering from previous redistricting processes has had on voters. Victor Martinez, who testified in Harrisburg on October 13, said that the current districts in the Lehigh Valley discourage Latinos from running for public office.
“I talked to them,” he said. “I go to the chamber events, I approach them and I said, ‘Listen, why you don’t run? Run for school board or run for city council. Or run for something, you’re well prepared. You got a great story. You’re an accomplished business owner.’ And they say, ‘Well, I don’t have a shot. There’s not enough Latinos that will come out in that district and vote.’”
Martinez is the CEO of VP Broadcasting and host of the radio show El Relajo de la Mañana. He has a reputation for influencing Latino voters in the Allentown area. In a recent scandal, he was accused of making racist remarks on air about Black women in Puerto Rico.
An important consideration in redistricting is the Voting Rights Act. “We have ‘one person, one vote’ and if the districts are drawn in such a way that it dilutes the votes of racial minorities, then that can violate the Voting Rights Act,” Schneider said. Several LRC hearings so far have focused specifically on it.
When asked about the impact of gerrymandering, Kuniholm cited inequity in school district funding. She said that legislators in “safe” districts (meaning districts where the incumbent’s party holds a clear advantage) ensure their schools are well funded, while districts in urban areas that are cracked in multiple pieces get little funding.
She also stated that it is difficult to hold candidate forums when districts are splintered across multiple counties. “The more splintered the districts are, the less it’s possible for people to know who [their representatives] are, understand the issues, hold them accountable, and they kind of just coast along.”
Kuniholm also mentioned the minority party’s lack of power in the state legislature. There are no rules in the Pennsylvania legislature that allow minority members a say in which bills get a vote.
“There are many, many, many issues that affect all of us every day that are decided in Harrisburg that have no chance of improvement until we have a legislature that actually is held accountable by voters,” Kuniholm said. “The first step to that is redistricting and the second step is for voters to really pay attention and insist on legislators who will listen and who will serve us well.”
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