PA gerrymandering secrecy court case [Huffpost article]

[Warren D Smith]

(this is reposted from 5 Dec 2017 Huffington post)

Top Pennsylvania Republicans Are Fighting Like Hell To Keep
Gerrymandering Secret
Two court cases could reveal how the GOP took over the state’s
congressional delegation.
By Sam Levine

Two of Pennsylvania’s top Republicans are fighting hard to conceal
information about how Republicans drew the state’s 2011 congressional
redistricting plan, now the subject of lawsuits in both state and
federal court.

At stake is the public’s chance to see how Pennsylvania lawmakers in
2011 used technology and detailed voter information to reset the
state’s electoral map. The voters bringing these cases argue that the
districts were deliberately drawn to secure Republicans’ domination of
the state’s congressional delegation and that the process violated the
U.S. and Pennsylvania constitutions.

Two of the defendants in both lawsuits -- Pennsylvania House Speaker
Michael Turzai (R), who is running for governor, and Senate President
Pro Tem Joseph Scarnati (R) -- are not giving a legal inch. Both sides
of the dispute are closely watching a Supreme Court case out of
Wisconsin that could set a standard for when redistricting goes too
far to benefit one political party.

As leaders of the Pennsylvania legislature, Turzai and Scarnati played
key roles in producing an electoral map that the Brennan Center for
Justice has called one of the worst gerrymanders in the country. The
2012 election, the first using the new boundaries, saw the Republicans
win 13 of the state’s 18 seats in the U.S. House, even though the
party won just 49 percent of the statewide vote. The GOP has been able
to hang on to that extreme majority even though its share of the
statewide vote has only crept up in subsequent elections.

The lawyers challenging the maps contend that Turzai, Scarnati and
other Republicans intentionally drew the boundaries of the districts
to entrench GOP power. To prove that, the lawyers want to ask them
under oath about their roles in the process and to review emails, data
and other documents that could shed light on how the maps were made.

Michael Li, senior counsel for the Democracy Program at the Brennan
Center, said a lot of people would like to see the veil lifted on the
redistricting process.

"There should be transparency about the way Pennsylvania’s
redistricting process works. I think journalists, voters and others
would be very interested in knowing that," Li told HuffPost. "People
have had a lot of suspicions and this is really a chance to see
whether their suspicions were correct."

Last month, Commonwealth Court Judge P. Kevin Brobson wrote the state
court could not compel Turzai and Scarnati to disclose information
about the redistricting process because they were protected by the
"speech or debate" clause in the Pennsylvania constitution. In
language mirroring the U.S. Constitution, the state clause states that
legislators "shall not be questioned in any other place" for "speech
or debate" in the legislature.

Nonetheless, Turzai and Scarnati have had less success in limiting
disclosure in the federal case, which went to trial on Monday.

Last month, Turzai asked the federal judge to block the plaintiffs
from deposing him. If the deposition did go forward, he asked that the
plaintiffs' lawyers be barred from asking him about anything related
to his role in the redistricting process on the grounds that it was
privileged information. The court denied both requests.

Turzai then asked that his deposition be kept under seal and shared
only with the parties in the federal case. He said he was concerned it
could be used against him in the state case. The federal judge denied
that request as well, although he stipulated that only the lawyers and
other parties in the federal case could see Turzai’s deposition before
the start of the trial.

During his deposition, which took place last week, Turzai continued to
argue that he didn’t have to answer questions about his role or
communications with others in the redistricting process, insisting
that he was protected by legislative privilege. Scarnati also declined
to answer questions about communications with other lawmakers and
staffers during his deposition. The plaintiffs are now asking the
court to impose sanctions on the two men for refusing to share
information.

Drew Crompton, a lawyer for Scarnati, said the lawmakers were trying
to preserve legislative privilege, an issue he said that was bigger
than the gerrymandering cases.

"We guard that vigorously because if every case went the way of
discovery with the maps issue, legislators could spend a good portion
of their lives sitting in depositions and fielding discovery
requests," he told HuffPost, adding, "Whether people embrace it or
not, the framers of the Constitution wanted to protect legislators
from having to opine under court on every rationale for every decision
they make in every vote they cast for every bill."

A spokesman for Turzai did not return a request for comment.

Similar disputes over disclosure have arisen in other redistricting
cases, according to Li and Justin Levitt, a professor at Loyola Law
School in Los Angeles who closely follows redistricting issues.

"Extremely vigorous fights against disclosing legislative process are
nothing uncommon," Levitt wrote in an email. "That's particularly true
when it comes to conversations between legislators and consultants. It
might mean something nefarious, or just embarrassing, or nothing at
all-- just institutional considerations and not wanting to set a
precedent."

Disclosure fights are of heightened importance in gerrymandering cases
because of the secretive way electoral maps are often drawn. In
Wisconsin, a mere three people drew the state's maps in 2011 at a law
firm behind a locked door. In Ohio, officials working at the behest of
Republican lawmakers redrew district boundaries in a hotel room they
sometimes referred to as a "bunker."

Joshua Douglas, a law professor at the University of Kentucky,
speculated that Turzai and Scarnati may not want to share sensitive
information received from or shared with national GOP leaders.

"For example, they might have political data, relating to statewide or
national trends, and they might fear that giving that information to
Democrats could lessen their own competitive advantage in the
political marketplace," Douglas told HuffPost. "They may also be
thinking about the upcoming state court case and any implications
their testimony might have in that forum."

With the federal court refusing to keep depositions under seal, Turzai
and Scarnati turned to the state court and asked it to bar the
introduction of any information obtained at the federal trial in the
state case. Brobson needed to block those documents, they said,
because he had already ruled the lawmakers were protected by the
speech or debate clause. The plaintiffs responded that the information
obtained in the federal case was now public and called the assertion
that it couldn't be used in the federal case "simply bizarre."

Brobson told the lawmakers no on Tuesday.

But the Pennsylvania House speaker has not given up trying to keep
information out of the public eye. He has asked the federal judge to
prohibit the lawyers in that case from sharing any of the documents he
turns over with anyone outside of the case. A ruling in Turzai’s favor
could stop the state plaintiffs from introducing an expert report
based on files that the speaker used to help draw the maps in 2011. In
that report, Jowei Chen, a political scientist at the University of
Michigan, found that the files show that Republicans engaged in "the
intentional pursuit of partisan advantage" and that the redistricting
plan could not have been the product of any other goal.

And that is what the plaintiffs are arguing.


--
Warren D. Smith
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