As a result of the recent census, Pennsylvania will lose one of its seats in the U.S. House of Representatives.  Instead of 18 congressional districts, Pennsylvania will soon have only 17, which means that the current congressional district boundaries will have to be redrawn, and there will surely be a battle when that task is undertaken. How those boundaries will be drawn and who will draw them remains to be seen.  The current district lines were drawn by the state Supreme Court as a result of litigation roughly three years ago.

Despite the fact that Pennsylvania’s constitution says absolutely nothing about congressional districts, the state Supreme Court decided that the then-existing district lines violated the state constitution. In my opinion, the court had no authority to do so.  Clearly, the then-existing districts had been gerrymandered to ensure that more Republicans than Democrats would be elected to Congress to represent Pennsylvania, but nothing in either the federal or state constitutions specifically prohibits that. The state constitution has numerous provisions relating to state and local districts, but those do not apply to congressional districts.   

There are two reasons why. First of all, the Pennsylvania Constitution does not apply to the U.S. Congress or federal elections.  Congressional representatives are not state officials.  They are federal officials, and their qualifications, terms of office, and authority are established by the U.S. Constitution.  Secondly, by drawing the district lines, the Pennsylvania Supreme Court violated the U.S. Constitution by usurping the authority given to the state Legislature.  

The U.S. Constitution, which governs federal elected offices, provides:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

The state legislatures, when prescribing the regulations regarding the elections for congressional representatives, are exercising authority delegated to them by the federal Constitution, not their state constitutions.  In effect, therefore, the state’s Legislature is acting as a federal agent and not a state agent governed by the state’s constitution.  If the Pennsylvania Constitution had specifically given the state Supreme Court the authority to prescribe “The Times, Places and Manner of holding Elections for Senators and Representatives” for the U.S. Congress, it would have been in conflict with the U.S. Constitution and would have therefore been unconstitutional.  Thus, there is no way that the Pennsylvania Supreme Court could constitutionally confer that authority upon itself.

Apparently, many believe that the Pennsylvania governor has a role to play in drawing the Congressional district lines.  An article in the Delaware County Times (Sept. 6, 2021) on the subject stated:  “Pennsylvania’s congressional district boundaries are drawn by the state Legislature and the bill has to be signed into law by the governor.”  That is factually incorrect.  

The drafters of the U.S. Constitution were very careful and precise in their choice of words.  Note that the provision quoted above does not say “prescribed in each State by Law.”  If it had, then clearly the state constitution’s process for prescribing law would require the governor’s signature.  Instead, the provision says “prescribed in each State by the Legislature thereof.”  Contrast the language regarding the state legislature with the language that gives the Congress the authority to alter what the legislature prescribed:  “but the Congress may at any time by Law make or alter such Regulations.”  Congress must follow the procedure established for enacting laws, but the state legislature need not enact a law when prescribing the regulations relating to the election of senators and representatives.  My interpretation is bolstered by the fact that the constitutional provision does not say that Congress may “make or alter such Laws” prescribed by the legislature but rather refers to them as “Regulations.”

That the drafters of the Constitution clearly distinguished between laws and regulations is evidenced by the language in Article IV, Section 2:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

It must be remembered that at the time of its adoption, the U.S. Constitution sought to protect the interests of the states in the establishment of a central government.  Thus, each state, regardless of its size or population, received two senators in the federal legislature.  Initially, the state’s senators were chosen by the legislature, and popular election of senators did not come about until the adoption of the 17th Amendment.  It should not be surprising, therefore, that the Constitution granted the state legislatures the authority to control the election of the state’s representatives to the federal legislature.

In exercising its constitutional duty to draw the congressional district lines, the Pennsylvania Legislature should not surrender its authority to the governor.  The U.S. Constitution is not a mere suggestion.  It is the supreme law of the land.

Howard Lurie is Emeritus Professor of Law, Charles Widger School of Law, Villanova University.