Opposition Brief — Ryan Costello, Petitioners v. Carol Ann Carter, et al.
Supreme Court briefAug 16, 2022
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No. 21-1509
In the Supreme Court of the United States
RYAN COSTELLO, PETITIONER,
v.
CAROL ANN CARTER, ET AL., RESPONDENTS.
ON PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF PENNSYLVANIA
BRIEF FOR CARTER RESPONDENTS
IN OPPOSITION
ABHA KHANNA
Counsel of Record
ELIAS LAW GROUP LLP
1700 Seventh Ave.
Suite 2100
Seattle, WA 98101
(206) 656-0177
AKhanna@elias.law
LALITHA D. MADDURI
CHRISTINA A. FORD
JYOTI JASRASARIA
ELIAS LAW GROUP LLP
10 G St. N.E.
Suite 600
Washington, DC 20002
(202) 968-4490
Counsel for Carter Respondents
i
QUESTIONS PRESENTED
1. Was the Pennsylvania Supreme Court
obligated to order at-large congressional elections
under 2 U.S.C. § 2a(c)(5) after the political process
failed to produce a map, even though it was able to
remedy the impasse without moving the primary
election date?
2. If the Pennsylvania Supreme Court was not
obligated to order at-large congressional elections,
was it required to defer to a redistricting plan that had
been vetoed by the Governor?
ii
TABLE OF CONTENTS
Page
Introduction .................................................................1
Statement ....................................................................3
A. Commonwealth Court Proceedings ......................3
B. Pennsylvania Supreme Court Proceedings .........6
Reasons to Deny the Petition ......................................9
A. This Court lacks jurisdiction to hear the
petition. ............................................................... 10
1. Petitioner lacks standing to press this
appeal. ............................................................ 10
2. The petition does not present issues this
Court can adjudicate. .................................... 14
a. The petition’s first issue is moot, and
deciding it would require this Court to
enter an advisory opinion. ...................... 14
b. There is no live federal issue for this
Court to decide. ....................................... 16
B. Petitioner has not demonstrated a
compelling reason to grant certiorari. ............... 18
1. Petitioner fundamentally seeks error
correction in the absence of any error. ......... 19
2. Rather than presenting important federal
questions that this Court should decide, the
petition asks questions that rarely arise. ..... 20
3. There is no division of authority over
Petitioner’s questions. ................................... 21
iii
C. This petition is a poor vehicle to decide the
issues presented. ................................................. 21
1. Petitioner should be estopped from
claiming error over rulings he invited the
Pennsylvania Supreme Court to make. ........ 22
2. The Pennsylvania Supreme Court did not
have an adequate opportunity to consider
or rule upon the issues Petitioner now
raises. ............................................................. 24
D. The decision below was correct. ......................... 25
1. The Pennsylvania Supreme Court was
correct to order a single-member
congressional plan. ........................................ 25
2. The Pennsylvania Supreme Court was not
obligated to adopt the General Assembly’s
proposed map. ................................................ 30
Conclusion ................................................................. 34
Appendix
Appendix A Commonwealth Court Brief of Guy
Reschenthaler, Jeffrey Varner, Tom
Marino, Ryan Costello, and Bud
Shuster
(Filed Jan. 24, 2022) ................. App. 1a
Appendix B Brief in Support of Special Master’s
Report and Exceptions to Special
Master’s Report by Guy Reschenthaler,
Jeffrey Varner, Tom Marino, Ryan
Costello, and Bud Shuster
(Filed Feb. 14, 2022) ................. App. 41a
iv
TABLE OF AUTHORITIES
Page(s)
Cases
Alexander v. Taylor,
51 P.3d 1204 (Okla. 2002)................................. 29
Allen v. Wright,
468 U.S. 737 (1984) ........................................... 11
Alvarez v. Smith,
558 U.S. 87 (2009) ............................................. 15
Arizonans for Off. Eng. v. Arizona,
520 U.S. 43 (1997) ............................................. 10
Balderas v. Texas,
No. 6:01CV158, 2001 WL 36403750
(E.D. Tex. Nov 14, 2001) ................................... 33
Branch v. Smith,
538 U.S. 254 (2003) ....................................passim
Carstens v. Lamm,
543 F. Supp. 68 (D. Co. 1982) ..................... 31, 32
City of Springfield, Mass. v. Kibbe,
480 U.S. 257 (1987) ..................................... 23, 24
DaimlerChrysler Corp. v. Cuno,
547 U.S. 332 (2006) ........................................... 12
Davis v. Fed. Election Comm’n,
554 U.S. 724 (2008) ..................................... 15, 16
v
Duignan v. United States,
274 U.S. 195 (1927) ........................................... 24
Favors v. Cuomo,
No. 1:11-CV-05632
(RR)(GEL)(DLI)(RLM), 2012 WL 928223
(E.D.N.Y. Mar. 19, 2012) .................................. 29
Fed. Election Comm'n v. Wis. Right to Life,
Inc.,
551 U.S. 449 (2007) ........................................... 15
Florida v. Powell,
559 U.S. 50 (2010) ............................................. 17
Gill v. Whitford,
138 S. Ct. 1916 (2018) ................................. 11, 13
Growe v. Emison,
507 U.S. 25 (1993) ....................................... 27, 32
Hall v. Beals,
396 U.S. 45 (1969) ............................................. 15
Hammerstein v. Super. Ct. of Cal.,
341 U.S. 491 (1951) ........................................... 18
Harper v. Hall,
No. 413P21 (N.C. Dec. 8, 2021) ........................ 28
Hartung v. Bradbury,
33 P.3d 972 (Or. 2001) ...................................... 33
Hippert v. Ritchie,
813 N.W.2d (Minn. 2012) .................................. 33
vi
Hollingsworth v. Perry,
570 U.S. 693 (2013) ..................................... 10, 11
Hortonville Joint Sch. Dist. No. 1 v.
Hortonville Educ. Ass’n,
426 U.S. 482 (1976) ........................................... 17
In the Matter of 2022 Legis. Districting of
the State, Misc. Nos. 21, 24, 25, 26, 27
(Md. Feb. 11, 2022) ........................................... 28
Johnson v. United States,
318 U.S. 189 (1943) ........................................... 22
Johnson v. Wis. Elections Comm’n,
967 N.W.2d 469 (Wis. 2021) ....................... 20, 33
Kowalski v. Tesmer,
543 U.S. 125 (2004) ........................................... 13
Lance v. Coffman,
549 U.S. 437 (2007) ........................................... 12
League of Women Voters v. Commonwealth,
178 A.3d 737 (Pa. 2018) .................................... 20
Los Angeles v. Lyons,
461 U.S. 95 (1983) ....................................... 15, 16
Mellow v. Mitchell,
607 A.2d 204 (Pa. 1992) .................................... 28
Mullaney v. Wilbur,
421 U.S. 684 (1975) ........................................... 17
New Hampshire v. Maine,
532 U.S. 742 (2001) ........................................... 22
vii
O’Sullivan v. Brier,
540 F. Supp. 1200 (D. Kan. 1982) .................... 33
Pennhurst State Sch. & Hosp. v.
Halderman,
465 U.S. 89 (1984) ............................................. 18
Perry v. Perez,
565 U.S. 388 (2012) ........................................... 33
Powell v. McCormack,
395 U.S. 486 (1969) ..................................... 14, 16
Sixty Seventh Minn. State Senate v. Beens,
406 U.S. 187 (1972) ........................................... 30
Smiley v. Holm,
285 U.S. 355 (1932) ........................................... 31
Toth v. Chapman,
142 S. Ct. 1355 (2022) ................................... 9, 15
TransUnion LLC v. Ramirez,
141 S. Ct. 2190 (2021) ................................. 11, 15
U.S. v. Woods,
571 U.S. 31 (2013) ............................................. 31
Upham v. Seamon,
456 U.S. 37 (1982) ....................................... 28, 33
Wattson v. Simon,
970 N.W.2d 42 (Minn. 2022) ............................. 21
White v. Weiser,
412 U.S. 783 (1973) ..................................... 32, 34
viii
Wilson v. Eu,
823 P.2d 545 (Cal. 1992) ................................... 33
Wood v. Raffensperger,
981 F.3d 1307 (11th Cir. 2020) ......................... 15
Statutes
25 P.S. § 2868 ........................................................... 8
2 U.S.C. § 2a(c) ................................................passim
2 U.S.C. § 2c.....................................................passim
28 U.S.C. § 1257(a) ................................................. 16
52 U.S.C. § 10301 ................................................... 20
Constitutional Provisions
U.S. Const. art. I, § 4 .............................................. 25
Other Authorities
14 Cyc. of Fed. Proc. § 67:12 (3d ed.) ..................... 22
Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts
174 (2012) .......................................................... 31
U.S. Sup. Ct. R. 10 ..................................... 18, 19, 20
1
INTRODUCTION
Petitioner asks this Court to resolve two questions
about Pennsylvania’s 2022 congressional redistricting
that were never addressed by the court below, run
contrary to Petitioner’s own positions in the state
court litigation, and are outside this Court’s
jurisdiction. What is more, Petitioner’s underlying
merits arguments conspicuously ignore the substance
and text of this Court’s precedent and state courts’
historical practice. The petition ultimately amounts to
an after-the-fact political grievance with the
congressional map that the Pennsylvania Supreme
Court adopted, which hardly warrants this Court’s
review.
Six months ago, the Pennsylvania Supreme Court
adopted the current congressional map after the
political process failed to produce a map. The players
in that process—the leaders of both caucuses in both
houses of the General Assembly and the Governor—
took no issue with the state court’s actions. Nor did
Petitioner himself. During their participation in the
state court litigation, all parties acknowledged—and,
in
Petitioner’s
case,
advocated—that
the
Pennsylvania Supreme Court could both adopt a
congressional map of its choosing and modify the
administrative election calendar to facilitate the
map’s implementation.
It is only now—and alone—that Petitioner,
former U.S. Representative Ryan Costello, introduces
the question of whether the Pennsylvania Supreme
Court should have ordered at-large elections in 2022
and, if not, whether it should have deferred to a
redistricting plan that had been vetoed by the
Governor. In doing so, he asserts an Elections Clause
theory that is incoherent at best. On one hand, he
2
admits that the Elections Clause and 2 U.S.C. § 2c
authorized the Pennsylvania Supreme Court to adopt
a congressional plan after the political process failed
to produce one. Pet. 30. On the other, he contends that
Branch v. Smith, 538 U.S. 254 (2003), required the
Pennsylvania Supreme Court to defer to a specific
map: the redistricting plan that had been vetoed by
the Governor, which was the very map that led to
impasse in the first place. Pet. 30. Petitioner’s
arguments have no basis in law and misread the text
of Branch itself.
In any event, this Court lacks jurisdiction to
consider Petitioner’s questions. Petitioner does not
have standing to bring this appeal. Additionally,
whether the Pennsylvania Supreme Court should
have ordered at-large elections for this election cycle
is both moot and hypothetical. And whether the
Pennsylvania Supreme Court correctly followed state
“policies and preferences” is “necessarily” a matter of
state law, Branch, 538 U.S. at 274 (plurality opinion),
which this Court cannot decide.
Even without these jurisdictional barriers,
prudential concerns militate against considering
questions that rarely arise and are fundamentally
about error correction. They especially disfavor cases
like this one, where this Court would be deciding the
issues in the first instance, where there is no division
among courts on the questions presented, and where
Petitioner previously advocated for much of the very
relief he now challenges.
Finally, this Court should deny review because
the decision below was correct. The Pennsylvania
Supreme Court acted in accordance with this Court’s
precedent, Pennsylvania law, and the longstanding
practice of state courts across the country. Petitioner’s
preferred outcome would invite this Court to mandate
3
at-large congressional elections despite Congress
having enacted a single-member congressional
district requirement in 1967, see 2 U.S.C. § 2c, and
would defy well-established precedent respecting a
governor’s role in the lawmaking process. This Court
should deny certiorari.
STATEMENT
A. Commonwealth Court Proceedings
In mid-December 2021, after months of
legislative inaction on congressional redistricting, a
group of Pennsylvania voters residing in
overpopulated districts filed suit in Pennsylvania’s
Commonwealth Court, alleging malapportionment
among the state’s congressional districts. Those
the
voters—the
Carter
Respondents 1—asked
Commonwealth Court to adopt a new, constitutional
congressional apportionment plan in the likely event
of an impasse between the state’s political branches.
Such a plan needed to account for Pennsylvania’s
population changes over the past decade, which
notably resulted in Pennsylvania’s loss of a
congressional district following the 2020 Census. The
Carter Respondents thus brought their lawsuit in
part under 2 U.S.C. § 2c, which provides that a state
should have “a number of [congressional] districts
equal to the number of Representatives to which such
State is so entitled.”
Days after the Carter Respondents filed suit,
the Commonwealth Court announced that it would
proceed to adopt a new congressional plan if the
General Assembly and the Governor failed to enact a
congressional reapportionment plan by January 30,
The Carter Respondents are 16 individual Pennsylvania
voters.
1
4
2022. Shortly thereafter, the Court permitted
interested individuals to intervene, including the
Republican and Democratic leadership of the
Pennsylvania General Assembly, Governor Wolf, and
current and former members of the state’s
congressional delegation. Among those intervenors
was Petitioner, Ryan Costello, who previously
represented Pennsylvania’s Sixth Congressional
District. 2 Toth Carter App. 79a. 3
In their initial briefing in the state court
proceedings, the majority leaders of the Pennsylvania
House and Senate (hereinafter the “Legislative
Leaders”) explained that they did not “contest” that
“[w]hen . . . the legislature is unable or chooses not to
act, it becomes the judiciary’s role to determine the
appropriate redistricting plan,” Toth Carter App. 52a
(citing League of Women Voters v. Commonwealth, 178
A.3d 737, 822 (Pa. 2018)); they interposed no objection
to “the commencement of a judicial redistricting
process,” Toth Carter App.54-55a; and they endorsed
the state courts’ power to modify the election
schedule, Toth Carter App. 6-7a. The Legislative
Leaders also explicitly agreed that the case raised no
Elections Clause issues because “it is settled law that
state courts have authority to declare and remedy
2 Petitioner intervened in the Pennsylvania state court action
as part of a group of former congressmen, but he alone filed this
Petition. Notably, although the Petition makes two passing
references to a “Mr. Grove,” Pet. iii, 8, no Mr. Grove is listed
among the parties to the proceeding, id. at ii, or was involved
in the Pennsylvania state court litigation.
References to the “Toth Carter App.” are to the Carter
Respondents’ Appendix, filed on March 3, 2022, in Toth v.
Chapman, No. 21A457, https://www.supremecourt.gov/DocketP
3
DF/21/21A457/217673/20220303170407861_Toth%20Appendix
.pdf.
5
violations of the U.S. Constitution, even with respect
to laws governing congressional elections.” Toth
Carter App. 52a n.2 (citing Growe v. Emison, 507 U.S.
25, 32–36 (1993)).
In total, the parties and amici, including
Petitioner, submitted 14 different proposed maps to
the Commonwealth Court for consideration. In his
submission supporting his proposed maps, Petitioner
acknowledged that, “in light of the continued
legislative impasse, it has fallen on this Court to select
an appropriate congressional redistricting plan.”
Carter App. 2a. Petitioner encouraged the
Commonwealth Court to select from two
congressional plans of his own making, then known as
the “Reschenthaler” Plans. Carter App. 3a. At no point
did Petitioner argue the court should adopt the
General Assembly’s proposed plan. Carter App. 3a,
8a. And no party suggested the court should order atlarge elections.
Petitioner also encouraged the Commonwealth
Court to “enjoin further use and enforcement of the
Election Code’s provisions relating to the timeline for
circulating, filing, and objecting to nomination
petitions and immediately adopt the timetable
proposed by [Petitioner] for the 2022 General
Primary.” Carter App. 3a. Petitioner noted that the
Pennsylvania Supreme Court had previously modified
administrative election deadlines just a few years ago
and argued Pennsylvania’s judiciary should do so
again. Carter App. 36-39a. Petitioner specifically
recommended that the Court not move the May 17
primary date but shift the dates for filing and
circulating nominating petitions from February 15,
the original date, to February 29. Carter App. 38-39a.
He also proposed corresponding shifts to the rest of
the election calendar. Carter App. 38a n.12. Petitioner
6
explained that briefly delaying the dates for filing and
circulating nominating petitions would “give the
Court additional time to carefully review, consider,
and select a new congressional redistricting plan.”
Carter App. 39a. Neither Petitioner nor any other
party raised Elections Clause concerns about
modifying pre-election deadlines.
After receiving all proposed congressional
plans, the Commonwealth Court held a two-day
evidentiary hearing on the proposed maps, restating
at the start that it would adopt a new congressional
plan if the General Assembly and Governor failed to
enact one by January 30. Costello App. 177a. At no
time in those hearings did any party raise Elections
Clause concerns or argue that the court should order
at-large elections.
B. Pennsylvania Supreme Court
Proceedings
Governor Wolf vetoed the General Assembly’s
proposed map on January 26, and the Commonwealth
Court’s January 30 deadline passed without a duly
enacted map in place. Costello App. 177a. A few days
later, the Pennsylvania Supreme Court exercised
extraordinary jurisdiction over the ongoing litigation,
designating the Commonwealth Court judge who had
been presiding over the proceedings in the lower court
as Special Master.
Shortly thereafter, the Special Master released
her report and recommendation to the Pennsylvania
Supreme Court. The Special Master recommended
that (1) the Pennsylvania Supreme Court adopt the
General Assembly’s proposed plan, HB 2146, which
had been vetoed by Governor Wolf, and (2) the
Pennsylvania Supreme Court adopt “[Petitioner’s]
proposed revisions to the 2022 General Primary
7
Election calendar,” which would give candidates 15
days to circulate petitions. Costello App. 389a, 394a.
The Pennsylvania Supreme Court invited all parties
to brief any exceptions to the Special Master’s
recommendations. 4
Thirteen parties submitted briefing and
presented oral argument to the Pennsylvania
Supreme Court. In his brief to the Pennsylvania
Supreme Court, Petitioner characterized the Special
Master’s recommendation to adopt the General
Assembly’s Plan as error, arguing that the
Pennsylvania Supreme Court should adopt one of his
plans instead. Carter App. 43a (Petitioner explaining
that “the Special Master also erred in her ultimate
recommendation that this Court should select HB
2146, rather than [the] Reschenthaler [Plans]”).
Petitioner did not argue that the Pennsylvania
Supreme Court should order at-large elections—no
party did. Nor did Petitioner take exception with the
Special
Master’s
recommendation
that
the
Pennsylvania Supreme Court modify the election
calendar
slightly,
just
as
Petitioner
had
recommended. For their part, the Legislative Leaders
recommended that the Pennsylvania Supreme Court
adopt the Special Master’s Report “in its entirety,”
which would have included its recommendation to
modify the election calendar. Toth Carter App. 109a.
On February 23, the Pennsylvania Supreme
Court ordered the adoption of the Carter Respondents’
One week before oral argument and six weeks after the
Commonwealth Court’s deadline for intervention, Lieutenant
Governor candidate Teddy Daniels filed an emergency
application to intervene, in which he raised some of the
arguments Petitioner makes here. The Pennsylvania Supreme
Court denied his application to intervene, and his claims were
not briefed or addressed by the court.
4
8
proposed plan (the “Carter Plan”) and announced that
an opinion would follow. Costello App. 148a. In its
February 23 order, the Pennsylvania Supreme Court
accepted the Special Master’s recommendation to
modify the dates for circulating petitions without
moving the primary date, which Petitioner had
proposed. Costello App. 149a. The Pennsylvania
Supreme Court provided candidates with more time
to circulate petitions than the Special Master had
recommended—and even more time than the statute
itself provided. Costello App. 149-150a; see 25 P.S. §
2868.
In its later opinion explaining its reasons for
selecting the Carter Plan, the Pennsylvania Supreme
Court explained that the Special Master’s deference to
the redistricting plan that had been vetoed by the
Governor was “offensive to the separation-of-powers”
in the Commonwealth, which envisioned a lawmaking
role for the Governor. Costello App. 25-27a. The
Pennsylvania Supreme Court thus declined to
automatically defer to HB 2146 without evaluating it,
alongside the other submitted plans, for compliance
with Pennsylvania’s traditional and historical
redistricting criteria. Costello App. 28a. After
evaluating all of the proposed plans against these
criteria, the Pennsylvania Supreme Court selected the
Carter Plan, which used Pennsylvania’s previous
congressional plan as its starting point. Costello App.
30-31a. The Pennsylvania Supreme Court found the
Carter Plan was “one of the best in terms of keeping
counties whole,” Costello App. 41a, “meets or exceeds
the other submitted plans in terms of its adherence to
the traditional core criteria,” Costello App. 42a, best
preserved the cores of prior districts, Costello App. 4344a, and was “superior or comparable to the other
9
maps in regard to partisan fairness.” Costello App.
47a. 5
Shortly after the Pennsylvania Supreme Court
released its order selecting the Carter Plan, six
Pennsylvania citizens, none of whom were parties
below, sought emergency relief from this Court,
raising Elections Clause claims and asking this Court
to order Pennsylvania to conduct its congressional
elections on an at-large basis. See Emergency Appl.
for Writ of Inj., Toth v. Chapman, No. 21A457 (Feb.
28, 2022). This Court denied the application without
dissent. See Toth v. Chapman, 142 S. Ct. 1355 (2022).
Petitioner now argues that the Pennsylvania
Supreme Court erred in several ways: (1) by
modifying the election calendar, just as Petitioner
requested, (2) by not ordering at-large elections,
which no party requested, and (3) by not selecting the
General Assembly’s Plan, which Petitioner himself
asked the Pennsylvania Supreme Court not to do.
REASONS TO DENY THE PETITION
Certiorari should be denied for numerous reasons.
First, this Court lacks jurisdiction to hear the petition.
Second, Petitioner does not provide compelling
reasons for this Court to exercise its discretionary
review. Third, this case is an exceedingly poor vehicle
to decide the questions presented given the record
below. Finally, the Pennsylvania Supreme Court
correctly followed this Court’s longstanding precedent
and applied its own state law in selecting the plan it
did.
The Carter Plan’s mapmaker, Dr. Jonathan Rodden, also
testified that he did not consider racial data or partisan
performance when drawing the map. Costello App. 32a. No
other party made their mapmaker available for examination
during the Special Master’s hearing.
5
10
A. This Court lacks jurisdiction to hear the
petition.
Petitioner neither has standing nor presents
issues this Court can adjudicate.
1. Petitioner lacks standing to press
this appeal.
This Court has held that Article III standing
“must be met by persons seeking appellate review,
just as it must be met by persons appearing in courts
of first instance.” Arizonans for Off. Eng. v. Arizona,
520 U.S. 43, 64 (1997). This rule applies to
intervenors, who “cannot step into the shoes of the
original party [to appeal] unless the intervenor
independently ‘fulfills the requirements of Article
III.’” Id. at 65 (citing Diamond v. Charles, 476 U.S. 54,
68 (1986)). “[I]t is not enough that the party invoking
the power of the court have a keen interest in the
issue.” Hollingsworth v. Perry, 570 U.S. 693, 700
(2013).
Petitioner plainly lacks standing to press this
appeal. In his intervention at the Commonwealth
Court, Petitioner identified himself as one of several
former U.S. Representatives who had “an interest in
advocating on behalf of the communities that they
formerly served” in the redistricting process,
explaining that he hoped to “provide the Court with
critical information regarding the communities and
boundaries in [his prior] district.” Toth Carter App.
92a.
Petitioner
also
broadly
alleged
malapportionment in Pennsylvania’s congressional
districts, although Petitioner did not specify his own
congressional district, let alone allege that he resides
in an overpopulated district. Toth Carter App. 78a79a n.1 & 81a.
11
Neither of these interests is sufficient for
standing on appeal. Petitioner’s first interest in
providing input to Pennsylvania courts has already
been satisfied and represents no more than a “keen
interest in the issue,” which is insufficient for
standing. Hollingsworth, 570 U.S. at 700. His second
general interest in remedying malapportionment in
Pennsylvania’s congressional districts is also
insufficient to support standing. Only voters who live
in overpopulated (and therefore underrepresented)
districts have standing to bring malapportionment
claims. See, e.g., Gill v. Whitford, 138 S. Ct. 1916,
1930–32 (2018) (reiterating that malapportionment
injuries are “district[-]specific” and that plaintiffs
cannot allege injury from the statewide plan as a
whole). Moreover, the Carter Plan, which was drawn
using
2020
Census
data,
remedies
any
unconstitutional malapportionment in the preceding
plan. Petitioner does not contend otherwise.
On appeal, Petitioner does not attempt to
explain his basis for standing. He instead alleges a
broad violation of the Elections Clause, which he
claims results from the Pennsylvania Supreme
Court’s modification of the election calendar, failure
to order at-large elections, and failure to adopt the
General Assembly’s vetoed redistricting plan.
But Petitioner suffers no injury-in-fact from
these alleged Elections Clause violations. It is well
settled that asserting a right “to have the Government
act in accordance with law” does not confer standing.
Allen v. Wright, 468 U.S. 737, 754 (1984), abrogated
on other grounds by Lexmark Int’l, Inc. v. Static
Control Components, Inc., 572 U.S. 118, 126–27
(2014); see also TransUnion LLC v. Ramirez, 141 S.
Ct. 2190, 2205 (2021) (“[U]nder Article III, an injury
in law is not an injury in fact. Only those plaintiffs
12
who have been concretely harmed by a defendant’s . . .
violation may sue . . . over that violation in federal
court.”).
Consistent with this precedent, this Court has
held that private individuals do not typically have
standing to advance Elections Clause claims. See
Lance v. Coffman, 549 U.S. 437 (2007). In Lance,
private citizens challenged the Colorado Supreme
Court’s imposition of a redistricting plan, which they
alleged violated the Elections Clause. After describing
this Court’s “lengthy” jurisprudence holding that
federal courts should not “serve as a forum for
generalized grievances,” id. at 439, this Court
articulated the “obvious” problem with the plaintiffs’
standing: “The only injury plaintiffs allege is that the
law—specifically the Elections Clause—has not been
followed. This injury is precisely the kind of
undifferentiated, generalized grievance about the
conduct of government that we have refused to
countenance in the past.” Id. at 442 (emphasis added).
Petitioner does not attempt to distinguish
Lance from the present case, nor do his circumstances
merit such a distinction. Petitioner was not a
candidate for re-election this year, and thus the
Pennsylvania Supreme Court’s modification of
nomination petition deadlines could not have affected
him. Indeed, Petitioner does not even attempt to
explain how the slight modification of election dates
affected or injured anyone. To the extent Petitioner
believes he was entitled to vote in at-large elections in
Pennsylvania this year, such a deprivation is not a
cognizable injury because it would be felt by all
Pennsylvania voters equally. See DaimlerChrysler
Corp. v. Cuno, 547 U.S. 332, 344 (2006) (holding
plaintiff lacked standing where plaintiff “suffers in
some indefinite way in common with people generally”
13
(quoting Massachusetts v. Mellon, 262 U.S. 447, 488
(1923))). Nor was Petitioner entitled to any particular
redistricting plan; this Court has already made clear
it is “not responsible for vindicating generalized
partisan preferences.” Gill, 138 S. Ct. at 1933.
Finally, even if Petitioner had suffered an
injury-in-fact from the Pennsylvania Supreme Court’s
adoption of the Carter Plan, prudential standing
would bar his claim. Prudential limitations require a
party to “assert his own legal rights and interests,”
rather than “rest his claim to relief on the legal rights
or interests of third parties.” Kowalski v. Tesmer, 543
U.S. 125, 129 (2004) (quoting Warth v. Seldin, 422
U.S. 490, 499 (1975)). But Petitioner’s claims rest
entirely on the alleged usurpation of institutional
rights held by the Pennsylvania General Assembly,
which has not appealed the judgment of the
Pennsylvania Supreme Court, is not before the Court,
and whose interests cannot be advanced by
individuals lacking authority to act on its behalf.
Notably, neither the Legislative Leaders, nor the
minority caucus, nor the Governor—all of whom were
parties to the state court litigation—took issue with
the court’s authority to change certain electionrelated deadlines or sought at-large elections. See
supra Statement. This petition thus materially differs
from the recently-granted petition in Moore v. Harper,
No. 21-1271, in which the leadership of the North
Carolina General Assembly itself appealed the
judgment of the North Carolina Supreme Court. 6
Given that Moore was brought by substantially different
parties, presented different questions, and involved a map
altered in a different posture, there is no reason for this Court
to hold the present petition until a decision in Moore.
6
14
Because Petitioner lacks standing to appeal,
his petition must be denied.
2. The petition does not present
issues this Court can adjudicate.
Petitioner presents two separate issues, each of
which he alleges is an independent violation of
“Branch’s interpretation of section 2c.” Pet. 30. The
first is whether the Pennsylvania Supreme Court’s
slight shifting of certain pre-primary election
deadlines “disrupt[ed] the election process” such that
it should have ordered at-large elections. Id. at 30-31.
The second is whether, notwithstanding that alleged
error, Branch required the Pennsylvania Supreme
Court to adopt the General Assembly’s vetoed map
proposal. Id. at 31-32. This Court does not have
jurisdiction to decide either issue.
a. The petition’s first issue is
moot, and deciding it would
require this Court to enter
an advisory opinion.
Petitioner’s first issue is undeniably moot. An
issue becomes moot when it is “no longer ‘live’ or the
parties lack a legally cognizable interest in the
outcome.” Powell v. McCormack, 395 U.S. 486, 496
(1969). That is precisely the situation here because
the remedy Petitioner seeks—requiring the
Pennsylvania Supreme Court “to implement at-large
elections under section 2a(c)(5) rather than impose a
court-selected map under section 2c,” Pet. 30—is no
longer available. As Petitioner concedes, the 2022
election cycle is already proceeding under the singlemember district Carter Plan. Id. at 21 (“It is too late
for this Court to vacate the imposition of the Carter
Map for the 2022 election cycle.”). The Court “cannot
turn back the clock and create a world in which” this
15
year’s congressional elections in Pennsylvania
proceed at-large. Wood v. Raffensperger, 981 F.3d
1307, 1317 (11th Cir. 2020) (citing Fleming v.
Gutierrez, 785 F.3d 442, 445 (10th Cir. 2015)). Nor
does Petitioner claim that future Pennsylvania
congressional elections should be held at-large, and
for good reason—there is already a single-member
district plan in place, and Petitioner does not and
could not contend that implementing a single-member
district plan would necessarily disrupt elections in
2024 and beyond. See generally Pet. 30-32.
Any concern that Pennsylvania’s congressional
elections should have been conducted at-large is thus
simply “an abstract dispute about the law.” Alvarez v.
Smith, 558 U.S. 87, 93 (2009). Correspondingly,
asking the Court to pronounce rules of constitutional
interpretation for a hypothetical legislative impasse
in a later decade would amount to little more than an
“advisory opinion[]” that is barred by Article III. Hall
v. Beals, 396 U.S. 45, 48 (1969) (per curiam); see
TransUnion LLC, 141 S. Ct. at 2203 (reaffirming that
“federal courts do not issue advisory opinions”).
Moreover, the scenario presented is far from
the “exceptional situation[],” Los Angeles v. Lyons, 461
U.S. 95, 109 (1983), that is “capable of repetition, yet
evading review,” Federal Election Commission v.
Wisconsin Right to Life, Inc., 551 U.S. 449, 462 (2007),
and thus is not exempt from the mootness doctrine.
First, the action is not “in its duration too short to be
fully litigated prior to cessation or expiration.” Davis
v. Fed. Election Comm’n, 554 U.S. 724, 735 (2008).
The underlying state court litigation lasted for
months, see supra Statement, and this Court in fact
considered and rejected an emergency application
seeking similar relief earlier this year, well in advance
of Pennsylvania’s May 17 primary. Toth, 142 S. Ct. at
16
1355. Second, there is no “reasonable expectation that
the same complaining party will be subject to the
same action again.” Davis, 554 U.S. at 735. For
Petitioner to face the same circumstances again—no
sooner than a decade from now—the following would
have to occur: Pennsylvania’s population this decade
would have to grow at a sufficiently slower rate than
the rest of the United States such that Pennsylvania
would lose a congressional seat after the 2030
decennial census; Pennsylvania’s political branches
would have to fail to pass a congressional map for use
in the 2032 election; and the Pennsylvania judiciary
would have to impose a congressional map too late to
keep the entire election calendar intact. At best, the
possibility of recurrence is “no more than conjecture.”
Lyons, 461 U.S. at 108–09.
In short, the issue is moot. And “[w]here one of
the several issues presented becomes moot, the
remaining live issues [must] supply the constitutional
requirement of a case or controversy.” McCormack,
395 U.S. at 497; id. at 496 n.8 (“Where several forms
of relief are requested and one of these requests
subsequently becomes moot, the Court has []
considered [only] the remaining requests.”). But here,
the remaining issue fares no better at preserving this
Court’s jurisdiction.
b. There is no live federal issue
for this Court to decide.
Congress has limited this Court’s review of
state court decisions to “[f]inal judgments or decrees
rendered by the highest court of a State . . . where,” in
relevant part, “the validity of a statute of any State is
drawn in question on the ground of its being
repugnant to the Constitution, treaties, or laws of the
United States.” 28 U.S.C. § 1257(a). Here, there is no
federal question for this Court to decide—except for
17
one which is obviously moot and hypothetical, see
supra Argument A.2.a—because, while Petitioner
tries to disguise his gripe with the Carter Plan as a
federal violation, he advances nothing more than
disagreement over whether the Pennsylvania
Supreme Court correctly applied the “policies and
preferences of the State” in choosing a map. Pet. 3132.
Indeed, Petitioner concedes that “the problem
is not that the Supreme Court of Pennsylvania chose
to impose a congressional map in response to a
legislative impasse.” Id. at 30. Rather, Petitioner
asserts that “[t]he problem is that the Supreme Court
of Pennsylvania’s actions were not authorized by
Branch’s interpretation of section 2c.” Id. But Branch
simply instructs that a court adopting a congressional
plan should “redistrict[] in the manner provided by
state law.” 538 U.S. at 274 (cleaned up); see also id.
(explaining that following state “policies and
preferences” means to redistrict “in the manner
provided by state law”). And because the
Pennsylvania Supreme Court is the final arbiter of
Pennsylvania law, see Mullaney v. Wilbur, 421 U.S.
684, 691 (1975) (“[S]tate courts are the ultimate
expositors of state law.”); Florida v. Powell, 559 U.S.
50, 56 (2010) (similar), this Court lacks jurisdiction to
second-guess that court’s interpretation of state law.
See, e.g., Hortonville Joint Sch. Dist. No. 1 v.
Hortonville Educ. Ass’n, 426 U.S. 482, 488 (1976)
(explaining that this Court is “bound to accept the
interpretation of [state] law by the highest court of the
State”).
To the extent Petitioner argues that the
Pennsylvania Supreme Court misapplied its own
state “policies and preferences” as defined by Branch,
and that a violation of Branch is a violation of the
18
Elections Clause such that the Pennsylvania Supreme
Court’s “adherence to state policy . . . detract[s] from
the requirements of the Federal Constitution,” that
reasoning fails. Pet. 31 (quoting Branch, 538 U.S. at
275). Irrespective of Petitioner’s misreading of
Branch, explained further below, see infra Argument
D.2, Branch makes clear that it is not attempting to
define state “policies and preferences.” Rather,
Branch requires “deferr[ing] to the State’s ‘policies
and preferences’ for redistricting” to respect “state
sovereignty,” recognizing that “instruct[ing] state
officials on how to conform their conduct to state law”
could create a conflict with Pennhurst State School
and Hospital v. Halderman, 465 U.S. 89 (1984).
Branch, 538 U.S. at 278 n.**.
Ultimately, Petitioner’s reasoning is circular.
He admits that the underlying question is whether
the Pennsylvania Supreme Court followed Branch—
in which the underlying question is whether the
Pennsylvania Supreme Court followed its own state
policies and preferences. Thus, the only question
Petitioner presents is whether the Pennsylvania
Supreme Court followed Pennsylvania state law,
policies, and preferences—a question on which that
court is the ultimate decider. There is no remaining
dispute for this Court to resolve.
B. Petitioner has not demonstrated a
compelling reason to grant certiorari.
Even if this Court had jurisdiction, “presence of
jurisdiction upon petition for writ of certiorari does
not, of course, determine the exercise of that
jurisdiction.” Hammerstein v. Super. Ct. of Cal., 341
U.S. 491, 492 (1951). Under this Court’s rules, “[a]
petition for a writ of certiorari will be granted only for
compelling reasons.” U.S. Sup. Ct. R. 10. Such a
compelling reason might exist where a state court of
19
last resort has decided an “important” federal
question that either (1) “has not been, but should be,
settled by this Court” or (2) conflicts with a decision of
a state supreme court or federal appellate court, or
this Court. Id. Rule 10 expressly states that “[a]
petition for a writ of certiorari is rarely granted when
the asserted error consists of erroneous factual
findings or the misapplication of a properly stated rule
of law.” Id. As described below, the petition does not
present compelling reasons of the character that merit
certiorari review.
1. Petitioner fundamentally seeks
error correction in the absence of
any error.
Petitioner concedes that his concern with the
Pennsylvania Supreme Court’s opinion is simply that
it failed to follow this Court’s existing precedent. Pet.
30 (“The problem is that the Supreme Court of
Pennsylvania’s actions were not authorized by
Branch’s interpretation of section 2c . . . .”). In other
words, Petitioner’s aim is for this Court to correct
what he perceives to be the state court’s error of law.
But this Court rarely indulges such requests, and it
especially should not do so here, where there is no
error to correct and where any error correction would
necessarily involve interpreting state law.
Precisely as Branch sets forth, the
Pennsylvania Supreme Court adopted a congressional
map “in the manner provided by [state] law,” by
“follow[ing] the ‘policies and preferences of the State.’”
538 U.S. at 274 (first alteration in original) (quoting
White v. Weiser, 412 U.S. 783, 795 (1973)). For
example, the Pennsylvania Supreme Court chose a
map that adhered to “factors that are deeply rooted in
the organic law of our Commonwealth” and that are
codified, for state legislative redistricting, in the
20
Pennsylvania Constitution. League of Women Voters,
178 A.3d at 816, cited in Costello App. 5-6a (listing the
state’s “traditional core districting criteria”). The
Pennsylvania Supreme Court also ensured that the
map it adopted “does not violate Pennsylvania’s Free
and Equal Elections Clause . . . and complies with the
[federal] Voting Rights Act, 52 U.S.C. § 10301.”
Costello App. 6a; see Branch, 538 U.S. at 275
(“[F]ederal statutory commands . . . are appropriately
regarded . . . as a part of the state election law.”). Just
as importantly, the Pennsylvania Supreme Court
“comport[ed]
with
this
Commonwealth’s
constitutional precepts” in declining to select the map
that Petitioner now prefers. Costello App. 27a.
In any event, even if the Pennsylvania
Supreme Court did err in applying Branch, “the
misapplication of a properly stated rule of law” rarely
warrants this Court’s certiorari review. U.S. Sup. Ct.
R. 10. Moreover, assessing that alleged misapplication
would expressly involve deciding whether the
Pennsylvania Supreme Court “follow[ed] the ‘policies
and preferences of the State.’” Branch, 538 U.S. at
274. That, again, is a question of state law, on which
this Court must defer to the Pennsylvania Supreme
Court. See supra Argument A.2.b.
2. Rather than presenting important
federal questions that this Court
should decide, the petition asks
questions that rarely arise.
Petitioner’s questions are inextricably bound to
the specific facts of this case and are unlikely to arise
again. As an initial matter, state courts draw
congressional districting plans in the first instance
only when the state legislative process fails to produce
a map following the decennial census. See Johnson v.
Wis. Elections Comm’n, 967 N.W.2d 469, 473 (Wis.
21
2021); Wattson v. Simon, 970 N.W.2d 42 (Minn. 2022).
But Petitioner’s questions do not even apply to the
majority of those scenarios—they apply only when a
state has lost at least one congressional seat after the
decennial census and its state legislative process fails
to produce a map. In the redistricting cycle following
the 2020 census, only one state—Pennsylvania—met
both of these conditions.
To the extent Petitioner’s questions attempt to
reach scenarios in which a state’s congressional
delegation size stays the same or increases—where 2
U.S.C. § 2a(c)(1) or 2a(c)(2) would apply, see Pet. 27—
a plurality of this Court has already explained that
“paragraphs (1) through (4) of § 2a(c) have become
(because of post-enactment decisions of this Court) in
virtually all situations plainly unconstitutional.”
Branch, 538 U.S. at 273. Thus, even setting aside that
these issues are not before the Court, there is no
reason to consider whether §§ 2a(c)(1) and 2a(c)(2)
limit state courts’ remedial discretion as Petitioner
suggests.
3. There is no division of authority
over Petitioner’s questions.
Petitioner does not raise any question on which
there is a division of authority, nor does Petitioner
contend otherwise. Petitioner relies solely on his own
interpretations of Branch in arguing that state courts
should order at-large elections and defer to legislative
proposals—interpretations that seem to be his alone,
as he does not cite a single authority in support.
C. This petition is a poor vehicle to decide
the issues presented.
Even if this Court had compelling reasons to
entertain Petitioner’s questions in the abstract,
Petitioner’s conflicting positions in this case before the
22
state court and this Court have resulted in both
waiver and an undeveloped record of the issues he
now asks this Court to decide in the first instance.
1. Petitioner should be estopped
from claiming error over rulings
he invited the Pennsylvania
Supreme Court to make.
As this Court has explained, invited error is a
form of waiver. See Johnson v. United States, 318 U.S.
189, 199–201 (1943). When a lower court “follow[s] the
course which [Petitioner] himself helped to chart and
in which he acquiesced,” a challenge to the lower
court’s decision is “plainly waived.” Id. at 201; see also
14 Cyc. of Fed. Proc. § 67:12 (3d ed.) (“[A]n appellant
will not ordinarily be permitted to complain of an
alleged error that she invited or that the court
committed at her instance or inducement.”). The
purpose of the invited error doctrine is “to protect the
integrity of the judicial process” and to prevent
litigants from playing “fast and loose with the courts.”
New Hampshire v. Maine, 532 U.S. 742, 749–50 (2001)
(citations omitted). Because Petitioner invited the
Pennsylvania Supreme Court to make several of the
rulings which he now claims were in error, Petitioner
has waived any challenge he might otherwise have
raised.
First, while Petitioner now claims it was a
violation of the Elections Clause for the Pennsylvania
Supreme Court to modify the primary election
calendar, Petitioner specifically advocated for such a
modification. Compare Carter App. 3a, 38a (Petitioner
encouraging court to “enjoin further use and
enforcement of the Election Code’s provisions relating
to the timeline for circulating, filing, and objecting to
nomination petitions and immediately adopt the
timetable proposed by [Petitioner] for the 2022
23
General Primary”), with Pet. 1-2 (Petitioner arguing
the Pennsylvania Supreme Court “flagrantly
violat[ed] the Elections Clause” by “order[ing] state
election officials to disregard the General Primary
Calendar enacted by the Pennsylvania Legislature in
favor of a court-preferred schedule”). Moreover, after
the Commonwealth Court “recommend[ed] for
adoption by the Supreme Court the [Petitioner’s]
proposed revisions to the 2022 General Primary
Election Calendar” Costello App. 394a (emphasis
added), the Pennsylvania Supreme Court gave the
parties an opportunity to take exceptions to that
recommendation; neither Petitioner nor any other
party objected to the Court’s authority to modify
administrative election-related deadlines. See supra
Statement B. 7
Where Petitioner not only acquiesced in the
modification of election deadlines, but specifically
requested it, Petitioner cannot now complain that the
Court did exactly as Petitioner asked. See City of
Springfield, Mass. v. Kibbe, 480 U.S. 257, 259 (1987)
(explaining “there would be considerable prudential
objection to reversing a judgment because of
instructions that petitioner accepted, and indeed itself
requested”).
Second, while Petitioner now claims it was
error for the Pennsylvania Supreme Court to adopt a
plan other than that proposed by the General
Assembly, he previously argued against adoption of
that plan. Compare Carter App. 43a (Petitioner
7 Petitioner claims “no litigant had asked” for modified election
deadlines. Pet. 17. This is false—Petitioner himself asked the
Commonwealth Court to modify pre-election deadlines. See
supra Statement.
24
arguing, “the Special Master also erred in her
ultimate recommendation that this Court should
select HB 2146”), with Pet. 31 (Petitioner arguing
“[t]he Supreme Court of Pennsylvania disregarded
[Branch v. Smith] when it rejected the HB 2146 map
that had been proposed by the state legislature”)
(cleaned up). Throughout the litigation, Petitioner
encouraged the state courts to reject the General
Assembly’s plan; he cannot now complain that the
Pennsylvania Supreme Court did exactly that.
2. The Pennsylvania Supreme Court
did not have an adequate
opportunity to consider or rule
upon the issues Petitioner now
raises.
This Court has explained that it “will not decide
questions not raised or litigated in the lower courts.”
Kibbe, 480 U.S. at 259. This approach makes sense:
this Court does not ordinarily decide issues in the first
instance but instead sits “as a court of review.”
Duignan v. United States, 274 U.S. 195, 200 (1927).
In addition to the error alleged above,
Petitioner also now claims it was error for the
Pennsylvania Supreme Court not to order at-large
elections after it imposed a modified election calendar.
Pet. 30. But no party raised this argument to the
Pennsylvania Supreme Court—not Petitioner, not the
Legislative Leaders, and not any of the eleven other
parties. Instead, each party advocated for the Court to
select its own, 17-district congressional plan. For this
reason, the Pennsylvania Supreme Court reasonably
did not address the issue, meaning this Court would
need to consider the issue in the first instance. It
should not do so.
25
D. The decision below was correct.
Finally, this Court should decline to grant the
Petition because Petitioner’s arguments—that the
Pennsylvania Supreme Court should have (1) ordered
at-large congressional elections and (2) adopted the
General Assembly’s vetoed map—conflict with federal
statutes and this Court’s precedent.
1. The Pennsylvania Supreme Court
was correct to order a singlemember congressional plan.
Pursuant to its Elections Clause powers,
Congress enacted 2 U.S.C. § 2c, which requires that
congressional representatives be elected from singlemember districts. U.S. Const. art. I, § 4 (“Congress
may at any time by Law make or alter [election]
Regulations.”). This Court has explained that § 2c
authorizes both state and federal courts to “remedy[]
a failure” by the state legislature “to redistrict
constitutionally” and “embraces action by state and
federal courts when the prescribed legislative action
has not been forthcoming.” Branch, 538 U.S. at 270,
272. Petitioner does not dispute state courts’ authority
in this regard. See, e.g., Pet. 26 (“[I]t does not violate
the Elections Clause for the state judiciary to enforce
section 2c.”). Although § 2a(c)(5) provides that a
state’s representatives “shall be elected from the State
at large” when a state loses one or more congressional
districts after a decennial census and has not been
“redistricted in the manner provided by the law
thereof,” that provision provides a fallback scheme to
be used only as a last resort where districting has not
occurred. See Branch, 538 U.S. at 275.
Petitioner’s theory of § 2a(c)(5) advances an
argument as baseless as it is untenable. Petitioner’s
novel theory is that the moment any election-related
26
deadline would have to be modified, no matter how
minor or ministerial, courts cannot adopt a
congressional plan. Instead, they must order at-large
congressional elections that Petitioner concedes
would violate § 2c. Pet. 25.
In
Branch,
the
Court
rejected
the
interpretation of § 2c and § 2a(c) that Petitioner
advances here, holding that § 2a(c) is “inapplicable
unless the state legislature, and state . . . courts, have
all failed to redistrict pursuant to § 2c” and “the
election is so imminent that no entity competent to
complete redistricting” can redistrict. 538 U.S. at 275
(emphasis added). 8 A plurality of the Court explained:
§ 2a(c) cannot be properly applied—
neither by a legislature nor a court—as
long as it is feasible for [] courts to effect
the redistricting mandated by § 2c. So
interpreted, § 2a(c) continues to function
as it always has, as a last-resort remedy
to be applied when, on the eve of a
congressional election, no constitutional
redistricting plan exists and there is no
time for either the State’s legislature or
the courts to develop one.
Id. Whatever moment is considered the “eve of a
congressional election,” when it is “[in]feasible” for
any competent entity to redistrict, that occasion never
came to pass here. The Pennsylvania Supreme Court
adopted a lawful congressional plan three months
8 Although a four-justice plurality made this statement, three
other justices found that § 2a(c)(5) had been impliedly repealed
and was inapplicable in any scenario. Branch, 538 U.S. at 285
(Stevens, J., concurring). Thus, seven justices found that
§ 2a(c)(5) could either never apply or could only apply in the
extremely limited circumstances described by the Branch
plurality.
27
before the state’s primary election and almost eight
months before the general election; that plan was
implemented without incident; and the election
process is proceeding under it, in accordance with § 2c
and this Court’s precedents. Indeed, Pennsylvania’s
primary election took place, as scheduled, on May 17
under the Carter Plan; §2a(c) thus could not have been
“properly applied” because the state court “effect[ed]
the redistricting mandated by § 2c.” Id. Petitioner can
hardly contend that the primary was “so imminent”
that the state court could not “complete redistricting
pursuant to state law . . . without disrupting the
election process,” where, in fact, the election process
is proceeding without disruption. Id.
The Pennsylvania Supreme Court issued minor
modifications to two pre-election deadlines leading up
to the May 17, 2022 primary “[t]o provide for an
orderly election process.” Costello App. 149a. This
change was not only slight, non-disruptive, and
months before both the primary and general elections,
but essential to crafting a remedy for the underlying
violations of state and federal law caused by the
political branches’ failure to redistrict—a remedy this
Court has repeatedly encouraged state courts to
formulate. As the Court explained in Growe, “[t]he
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.” 507 U.S. at 33
(quotations omitted). The Pennsylvania Supreme
Court’s authority to adopt a congressional plan
necessarily entails the authority to modify electionrelated administrative deadlines to effectuate that
plan—as Petitioner himself recognized and requested,
28
supra Statement—especially when, as here, doing so
did not disrupt the election process. 9
Moreover, this Court has endorsed federal
courts’ authority to alter pre-election deadlines and
even elections themselves. See, e.g., Upham v.
Seamon, 456 U.S. 37, 44 (1982) (“[W]e leave it to [the
District Court] in the first instance to determine
whether to modify its judgment [as to the state’s
congressional apportionment plan] and reschedule
the [congressional] primary elections for Dallas
County or . . . to allow the election to go forward in
accordance with the present schedule.”). That
precedent supports state courts’ authority to modify
election deadlines as well, especially here, where
Petitioner’s argument to the contrary is entirely
contingent on Branch’s reference to “disrupting the
election process,” which itself applies to “state and
federal courts” equally. 538 U.S. at 275. 10
Likewise, Pennsylvania’s Legislative Leaders expressly
endorsed the state courts’ power to modify the election schedule
in this case, arguing in their pleadings before the Pennsylvania
Commonwealth Court that “nominating petition deadlines” have
been moved by state courts in the past and “could still be moved
in this election cycle.” Toth Carter App. 6a (citing Mellow v.
Mitchell, 607 A.2d 204, 237 (Pa. 1992)). And when the Legislative
Leaders argued the Pennsylvania Supreme Court should adopt
the Special Master’s Report in its entirety, they accordingly
endorsed the state election calendar changes the Special Master
proposed. See generally Toth Carter App. 99-161a; 162-180a.
10 State courts have routinely made similar election schedule
modifications in the redistricting context. See, e.g., Order, In
the Matter of 2022 Legis. Districting of the State, Misc. Nos. 21,
24, 25, 26, 27 (Md. Feb. 11, 2022) (postponing candidate filing
and related deadlines before 2022 primaries); Order, Harper v.
Hall, No. 413P21 (N.C. Dec. 8, 2021) (postponing 2022 primary
filing deadlines and primary election); Mellow, 607 A.2d at 237,
244 (revising pre-primary deadlines in similar congressional
9
29
Since Congress enacted § 2c in 1967, no state
has ever conducted at-large congressional elections.
Indeed, Congress enacted § 2c in part to ensure that
courts would not order at-large elections. See Branch,
538 U.S. at 269 (noting Congress enacted § 2c to stave
off the “risk . . . that judges forced to fashion remedies
would simply order at-large elections”). And on
previous occasions where legislative impasse has
followed the loss of one or more congressional seats,
courts have adopted single-member congressional
district plans. 11 Petitioner has no answer for how his
newfound reading of the Elections Clause comports
with this legislative history and historical practice.
The better reading of § 2a(c)(5) is the Branch
plurality’s reading: that it only comes into play on the
eve of an imminent election when no competent entity
could possibly pass a lawful map in time. Id. at 275.
Again, whatever moment that is, the orderly conduct
of Pennsylvania’s primary and general elections
shows that it did not come to pass here.
Worse yet, Petitioner’s theory of § 2a(c)(5)
would usurp state legislatures’ redistricting power.
Even when faced with impasse, courts routinely defer
to the political process for as long as they can before
imposing a remedy. Here, in order to provide maximal
time for the political process to produce a map, the
Pennsylvania courts declined to act until after the
2021 legislative session adjourned without an enacted
map. See supra Statement. The Pennsylvania
Supreme Court exercised extraordinary jurisdiction
redistricting impasse case “to provide for an orderly election
process”).
See, e.g., Favors v. Cuomo, No. 1:11-CV-05632
(RR)(GEL)(DLI)(RLM), 2012 WL 928223 (E.D.N.Y. Mar. 19,
2012); Alexander v. Taylor, 51 P.3d 1204 (Okla. 2002).
11
30
only after the Governor vetoed the General
Assembly’s proposal. Id. If Petitioner’s theory were
adopted, courts would be forced to implement a
remedy before political branches had exhausted all
opportunities to successfully redistrict, flipping the
current balance on its head.
2. The Pennsylvania Supreme Court
was not obligated to adopt the
General Assembly’s proposed map.
Petitioner next argues that the Pennsylvania
Supreme Court should have adopted the legislature’s
vetoed congressional plan. See, e.g., Pet. 31-32.
Putting aside that Petitioner argued against adoption
of that plan to the Pennsylvania Supreme Court, see
supra Argument C.1, Branch does not require courts
to elevate a legislature’s failed proposal over a
gubernatorial veto. See Pet. 31-32. To the contrary,
Petitioner’s argument that a vetoed bill with no force
of law deserves judicial deference—beyond being
deeply antidemocratic—has already been rejected by
the Court.
When courts redistrict pursuant to § 2c, they
must “follow the policies and preferences of the State,”
which can include a state legislature’s plan. Branch,
538 U.S. at 274 (quotation omitted). But as the Court
has explained, a reapportionment plan that has been
vetoed by the governor represents little more than the
legislature’s “proffered” plan and certainly does not
reflect “the State’s policy” where, as here, the
Governor, has a contrary recommendation. Sixty
Seventh Minn. State Senate v. Beens, 406 U.S. 187,
197 (1972). Petitioner concedes this, admitting that
“redistricting legislation that is vetoed by the
governor is not ‘prescribed . . . by the Legislature’
within the meaning of the Elections Clause.” Pet. 10
(citing Smiley v. Holm, 285 U.S. 355 (1932)). Indeed,
31
because the governor is part of the lawmaking process
in Pennsylvania, see Smiley, 285 U.S. at 372–73, and
he vetoed the General Assembly’s proposal, that map
is definitively not Pennsylvania’s policy, see Carstens
v. Lamm, 543 F. Supp. 68, 79 (D. Co. 1982) (explaining
that vetoed legislative plan “cannot represent current
state policy any more than the Governor’s proposal”).
The Pennsylvania Supreme Court explained as much
in its decision. Costello App. 27a (explaining that it
“comport[ed]
with
this
Commonwealth’s
constitutional precepts” in declining to defer to the
vetoed map and that the Special Master’s deference to
that map as representing “the will of the people” was
“offensive to the separation-of-powers” in the
Commonwealth).
The only support Petitioner offers for his theory
is a misreading of a single line from Branch, in which
the Court noted that lower courts adopting remedial
redistricting plans should “follow the policies and
preferences of the State, as expressed in statutory and
constitutional provisions or in the reapportionment
plans proposed by the state legislature.” 538 U.S. at
274 (quoting White v. Weiser, 412 U.S. at 795). But
this sentence cannot bear the weight Petitioner gives
it. As an initial matter, the plain language of this
passage reveals Petitioner’s misreading of it.
Petitioner’s selective emphasis on “plans proposed by
the state legislature” ignores that a state’s “policies
and preferences” can arise from multiple sources. If
“or” has meaning, see U.S. v. Woods, 571 U.S. 31, 45–
46 (2013) (“[Or’s] ordinary use is almost always
disjunctive, that is, the words it connects are to be
given separate meanings” (quotation and citation
omitted)), which of course it must, see Antonin Scalia
& Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts 174 (2012) (“If possible, every word . . .
32
is to be given effect.”), then the Pennsylvania Supreme
Court’s adoption of a map based on Pennsylvania’s
“statutory and constitutional provisions”—precisely
what it did here—fits neatly within Branch’s holding.
Petitioner’s argument, moreover, ignores not
only the plain text but also the context of this
sentence. White v. Weiser, the original source of the
phrase on which Petitioner so heavily relies, was
referring to the policies and preferences of a state as
reflected in a “duly enacted statute of the State of
Texas,” which had been passed by the legislature and
signed by Texas’s governor—not proposed legislation
that never became law. 412 U.S. at 795. The Court did
not—nor has it ever—required lower courts to defer to
a plan without the force of law. Tellingly, Petitioner
cites no authority supporting his novel theory that
unenacted legislative proposals are owed any
deference by courts.
The Carstens court explained the absurd result
of requiring a judicial override of the governor’s veto:
“To take the [Petitioner’s] position to its logical
conclusion, a partisan state legislature could simply
pass any bill it wanted, wait for a gubernatorial veto,
file suit on the issue and have the Court defer to their
proposal.” 543 F. Supp. at 79. This Court has never
endorsed such an end-run around a state’s lawmaking
process. Instead, the Court has repeatedly held that
state courts should—just as the Pennsylvania
Supreme Court did here—take up the redistricting
pen when the political process has failed and adopt a
plan that complies with the “State’s substantive
policies and preferences for redistricting.” Branch,
538 U.S. at 277–78 (citations omitted); see also Growe,
507 U.S. at 33–34.
Numerous other courts have followed this
Court’s instruction and rejected Petitioner’s
33
argument. See, e.g., O’Sullivan v. Brier, 540 F. Supp.
1200, 1202 (D. Kan. 1982) (“[W]e are not required to
defer to any plan that has not survived the full
legislative process to become law.”); Wis. Elections
Comm’n., 967 N.W.2d at 666 n.8 (rejecting argument
that legislature’s vetoed map was an expression of
“the policies and preferences of the State[.]”); Hippert
v. Ritchie, 813 N.W.2d, 374, 379 n.6 (Minn. 2012)
(“[B]ecause the Minnesota Legislature’s redistricting
plan was never enacted into law, it is not entitled to
[Upham] deference.”) (citing Perry v. Perez, 565 U.S.
388, 392–96 (2012)); Hartung v. Bradbury, 33 P.3d
972, 979 (Or. 2001) (similar); Wilson v. Eu, 823 P.2d
545, 576 (Cal. 1992) (similar).
This Court’s affirmance of Balderas v. Texas,
No. 6:01CV158, 2001 WL 36403750 (E.D. Tex. Nov 14,
2001), summarily aff’d, 536 U.S. 919 (2002), another
impasse case where no redistricting plan had been
enacted, is instructive. In Balderas, like here, the
political branches had failed to enact a state
redistricting plan following the 2000 Census. See 2001
WL 36403750, at *2. As a result, the court set out to
“draw a redistricting plan according to neutral
redistricting
factors,
including
compactness,
contiguity, and respecting county and municipal
boundaries.” Id. (cleaned up). As the Court explained,
because “there was no recently enacted state plan,”
the Balderas court was “compelled to design an
interim map based on its own notion of the public
good.” Perry, 565 U.S. at 396. There, the court owed
no deference to the vetoed map.
As Petitioner admits, “it does not violate the
Elections Clause for a court to redraw an
unconstitutional map required by section 2a(c) if the
state legislature is unwilling or unable to do so; to
deny this would put the Elections Clause at war with
34
the rest of the Constitution.” Pet. 25-26. And “it does
not violate the Elections Clause for the state judiciary
to enforce section 2c, as the Elections Clause
specifically allows Congress to ‘make or alter’
regulations governing the manner of electing
Representatives, and the Elections Clause requires
the states to comply with those congressional
enactments.” Id. at 26. Faced with the “unwelcome
obligation” of adopting a plan, Costello App. 4a, the
Pennsylvania Supreme Court followed this Court’s
instruction in Branch and White and adhered to
“policies and preferences of the State, as expressed in
statutory and constitutional provisions.” Branch, 538
U.S. at 274 (quotation omitted). Petitioner can point
to nothing in state or federal law indicating that a
vetoed proposal of a state legislature is owed judicial
deference.
CONCLUSION
The petition for a writ of certiorari should be
denied.
35
Respectfully submitted,
ABHA KHANNA
Counsel of Record
ELIAS LAW GROUP LLP
1700 Seventh Ave.
Suite 2100
Seattle, WA 98101
(206) 656-0177
AKhanna@elias.law
LALITHA D. MADDURI
CHRISTINA A. FORD
JYOTI JASRASARIA
ELIAS LAW GROUP LLP
10 G St. N.E.
Suite 600
Washington, DC 20002
(202) 968-4490
Counsel for Carter Respondents
August 16, 2022
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.