In a surprise to Democrats this week, the state’s Supreme Court refused to take up the case, which will now give outsized influence to a conservative lower court in determining the new maps, instead of the Democratic-majority high court. Now, multiple House Democrats worry their party’s carefully honed litigation strategy could potentially backfire, complicating an already messy battle to redraw their state’s maps — even as Elias and his team insist there were zero missteps.
“This is the first time I've been nervous about redistricting,” said one person closely involved with the Pennsylvania Democrats’ process, speaking on the condition of anonymity to openly discuss the ongoing legal process.
Both Elias and the National Democratic Redistricting Committee, which oversees the party’s legal efforts, said the lawsuits had to first be filed in the lower, more conservative court. But the tension between the state and national players over complex legal questions underscores how anxieties are running high in a state that’s key to Democrats’ fading hopes of keeping the House majority.
“It was going in the commonwealth court either way,” Elias said, strongly defending the strategy. “I don't know where their disconnect is.”
“We're all in procedural back and forth with these courts,” added Kelly Ward Burton, the president of the NDRC, whose affiliate is involved with the lawsuit. The challenge had to start in the lower Commonwealth Court, she said. “And I think there is still potential to get to the [state] Supreme Court, so I wouldn't say we're worried yet.”
The state Legislature and governor are almost certain to blow past the unofficial Jan. 24 deadline set by Pennsylvania’s election officials, leaving the conservative lower court in charge of selecting the map. But Elias pointed to another date: the end of last month, citing a state officials’ statements that in order to open the candidate filing period in February on time, the map needed to pass the Legislature by the end of the year.
Anxious Democrats say the national group’s strategy could, at the very least, cost precious time and energy ahead of the midterms because they involved the lower conservative court. At worst, they say it could threaten several key incumbents and result in Republicans assuming a large majority of the state's congressional districts.
Most of the state’s congressional delegation — which met Thursday night for a briefing on the latest developments — is unwilling to comment on the record until the map is finalized. But privately, Democrats are exasperated this week after the state’s highest court declined to intervene in the map-drawing, dashing hopes that they could avoid a contentious lower-court battle.
Asked if she had concerns that the state Supreme Court had not yet taken jurisdiction, Rep. Susan Wild (D-Pa.) said: “The whole redistricting is concerning all of us.”
But Wild, and others, declined to comment on the map or litigation until it was final.
The redistricting fight has been so consuming that several House members, including Reps. Chrissy Houlahan (D-Pa.) and Madeleine Dean (D-Pa.), raised the issue with Obama-era Attorney General Eric Holder, who now chairs the party’s redistricting committee. Houlahan and Dean pressed Holder during an unrelated call hosted by the New Democrat Coalition this week, according to multiple people familiar with the remarks.
Adding insult, Commonwealth Court Judge Patricia McCullough has taken up the case. McCullough is perhaps best known for handing Trump a brief legal victory in November 2020, when she ordered state officials to pause the certification process for the election results. (That was later overturned by the state Supreme Court.)
However, the NDRC often files preemptive suits to get courts ready to get involved ahead of potential standoffs in states with divided government, such as Pennsylvania, Wisconsin and Minnesota. To wait to ask the court for help only after deadlines are already blown could rush the line-drawing process — and it’s possible that they could attempt to appeal directly to the state Supreme Court only to be told to go back down to the Commonwealth Court.
Not all Democrats are predicting the worst, noting that the state’s high court is still likely to intervene if the lower court selects or produces a map the state Supreme Court would reject as unfair. But it’s raising tensions among an already jittery Democratic delegation, since the state is already losing a seat this year and the delay in the delivery of the census data has put them in an even deeper time crunch.
The judicial standoff stems from Pennsylvania's divided government: Democratic Gov. Tom Wolf has veto power over any bill passed by the state’s GOP-controlled Legislature. The map was always likely to be decided in court, but some Democrats hoped it could go directly to the state’s liberal-leaning Supreme Court. Three years ago that body struck down a Republican-drawn map from the past decade, shifting the delegation from 13 Republicans and five Democrats, to an even split.
It’s also a particularly high stakes year for the closely divided battleground state, with a competitive governor and Senate race all on the ballot.
And while Pennsylvania’s acting secretary of state has called for a congressional map to be finalized by Jan. 24, few in the state believe it will be possible.
Instead, the lower court has said it will select its own map by the end of this month, leaving congressional candidates in a painful limbo. Many expect that key deadlines, such as the date to declare a candidacy in March or the statewide primary in May, would need to be pushed back if there isn’t a deal reached sooner between Republicans in the state Legislature and Wolf.
There's little sign of a compromise. Republicans passed a new congressional map out of the state House on Wednesday that Wolf criticized last month as "the result of intentional line-drawing choices that favor Republican candidates."
House Democrats have invested in a litigation-heavy national redistricting strategy with the creation of the National Democratic Redistricting Committee in 2017. Holder and former President Barack Obama have lent their starpower to the effort and the group has filed lawsuits, with the help of Elias, challenging GOP-drawn and commission maps as unconstitutional.
Elias, who has spent decades representing prominent Democratic candidates, helped to expand voting access before the 2020 election. After the election, he was at the forefront of Democrats’ legal efforts to seal Biden’s victory, succeeding in more than 60 cases to shut down Trump’s challenge to the results.
The longtime lawyer has also worked on redistricting in dozens of states. That puts him in a uniquely high profile position and can make him a target of ire from lawmakers as they await their fates in the once-in-a-decade process.
“It's nerve-racking for them. I totally get it. They don't have maps. They're up against a deadline. It's not clear how the maps are going to get done at this point,” Burton said of the Pennsylvania delegation.