Redistricting fight in Upper Providence headed to court

Gerrymandering used to be an under-the-radar political fight, known mostly to insiders. In recent years, it has taken on new prominence as congressional and state legislative districts are rewritten every ten years — with the spoils going to the victors.

Pennsylvania’s most recent round is a case in point: despite losing the statewide vote by 379,000, Democrats control the state house today because of lines forced through by the Democrat-controlled state supreme court.

The process goes on in miniature across the commonwealth, too. One such line-drawing fight is playing out in court right now in Upper Providence Township in Delaware County.

READ MORE — Kyle Sammin: Meet Pennsylvania’s new Congressional map — same as the old one

The township is governed by a board of five members, each elected in a single-member district. When the lines were last drawn 30 years ago, the districts were roughly equal. Now, minor population shifts have left some more populous than others. So, the township council shifted the lines to make the districts closer to equal in population.

Everyone agrees that the districts are now more equal in size, but the way they got there — and which neighborhoods were put where — is a more contentious topic. Some Upper Providence residents allege that the lines are unnecessarily disruptive and were drawn to protect a Democratic majority on the board. The board, through court documents, denies this is the case.

Just shy of 40 percent of the township is Republican, but four of five members of the township council are Democrats. The residents opposing the changed borders say that the changes “shifted the partisan balance of the Township strongly in favor of the Majority party,” according to their website.

But wait a second — in the current registration analysis, Republicans only have an advantage in one district, and then that shifts to an advantage in two districts. How can this be a gerrymander?

“My ultimate contention is that right now, there are only two Dem ‘leaning’ districts. I know on paper there are four in their ‘column,’ but frankly, given voting trends and turnout rates, the D+5 and D+6 districts are extremely competitive toss-ups,” said Joe Solomon, one of the driving forces behind the website and lawsuit.

“What [the council is doing] is essentially sacrificing an advantage in one of the toss-ups (the 3rd District — albeit, it remains a toss-up) and by doing so they guarantee themselves another district in the 4th District,” Solomon continued.

“So the gerrymander is that, instead of having a 2–1 advantage in seats and competing for the other two with an advantage, they now guarantee a 3–1 Council, which is majority control. They no longer have to spend campaign resources in the 4th District and can reliably count on majority control of the Township for the foreseeable future,” he concluded.

Everyone agrees that the districts are now more equal in size, but the way they got there — and which neighborhoods were put where — is a more contentious topic.

The council declined to respond to Broad + Liberty’s request for comment, citing the pending lawsuit, but did include copies of their response to the charges, which they have filed with the courts. 

“[I]n 2022, the Democrats won in all five districts decisively. Republicans cannot show that they lost narrowly anywhere. Republicans also did not have ‘wasted votes’ because they did not win any races,” the council’s reply brief says. “If anything, it shows Republicans are vastly overrepresented by the one seat they held on Township Council.”

Also in those filings, the council’s attorney notes that the challenges to the new lines ignore independent voters in their calculus while also pointing out that even under the old district lines, Democrats carried all five districts in the 2022 races for governor and United States senator.

At the heart of the dispute is the question of whether the boundaries chosen by the Democratic-majority council rise to the level of the standard in Pennsylvania’s gerrymandering caselaw, which the state supreme court in League of Women Voters v. Commonwealth describes as showing that the map “clearly, palpably, and plainly violates the Constitution.”

Defining exactly what that means is not easy. The Upper Providence case could be the first since League of Women Voters in 2018 to drill down on exactly how one could prove such a violation.

Todd Shepherd is Broad + Liberty’s chief investigative reporter. Send him tips at tshepherd@broadandliberty.com, or use his encrypted email at shepherdreports@protonmail.com. @shepherdreports

Kyle Sammin is Broad + Liberty’s editor-at-large.

8 thoughts on “Redistricting fight in Upper Providence headed to court”

    1. Upper Providence township is in Montgomery County, not Delco. And btw, the residents of the township voted for their council representatives. How is it a dirty trick if they voted for Democrats? Such a dumb comment.

  1. The 2022 comment by the Township is laughable. Federal elections are not representative of local election outcomes. UPT has voted for the Democrat for President all century despite being controlled by Republicans on Council through 2019. The 5th District voted for Biden by almost 20 and then voted for a Republican on Council by almost 20. A 40 point difference.

  2. These people taking over Delco are corrupt, power hungry psychos.

    They care about nothing but getting as much power for themselves as possible and exerting it every chance they get.

  3. The state house district lines were not “forced through by the Democrat-controlled state supreme court.” The district lines were drawn by PA Legislative Reapportionment Commission, which is mandated by the state constitution. The lines were challenged by some Republicans to the state supreme court, which declined to hear the case. The GOP then took their challenge to the US Supreme Court, which also refused to hear the case. That statement is flat out false and biased.

  4. As an Independent I have no dog in the partisan fight, but I have lived my entire life in Upper Providence, DelCo, and have had the opportunity to watch the various redistricting efforts over the decades, dating back to before the Home Rule Charter was adopted about 50 years ago, before which our three township commissioners were elected at-large and thus gerrymandering was not possible(maybe we should go back to that?).  I had high hopes for the current process when the Democratic-majority council endorsed the Fair Districts proposal several years ago which called for a bi-partisan commission to redistrict the state legislative districts. I was disappointed that Council then failed to follow this model for our own community, and never bothered to explain when questioned about their hypocrisy.  As one witness said during the court hearing, apparently the Township Council wants “Fair Districts for PA and Unfair Districts for Upper Providence.” 

    The Township redistricting plan was created by one sitting councilman with no other input.  All of their subsequent maps were just minor tweaks to his original proposal. Council clearly made the decision to gerrymander from the outset front and nothing would deter them. They said they would be open, transparent, and responsive, yet all of their maps were developed in secret and they dismissed the overwhelming public feedback to not redistrict more residents than was necessary to balance the district populations.  Township Council made a big show out of pretending to listen and they tinkered around the edges, but the central gerrymander was there in every map they produced.  The supposedly open process was great theater but of no substance.  The Council even dramatically altered(with no notice) the long-standing Public Forum rules for public meetings, which had the effect of squelching organized opposition at the meeting. In an unprecedented and petty move they then kicked Mr. Solomon off the Township Planning Commission, where he was Vice-Chairman. Their message was clear: dissent is not permitted.  The previous Republican controlled councils left much to be desired, but the Democrat Council rule Upper Providence with a heavy, albeit incompetent, hand.

    The Council was provided with vastly superior alternative plans to consider, which met the need to equalize district size without inconveniencing thousands of township residents.  The public wanted Council to appoint a bi-partisan commission to create a redistricting plan rathe than a backroom plan. But all of these suggestions were dismissed.  Council acted with arrogance and disdain for the residents and routinely acted as if they could do whatever they wanted and ignored the clear precedent by the PA Supreme Court that clearly showed their plan to be in violation of the PA Constitution. One elderly lady in attendance even had to ask one of them why they looked so smug.

    The plan the Township created not only unnecessarily inconvenienced well over 2,000 township residents(alternative proposals equalized the populations by moving as few as 280 people to different voting districts) but also resulted in denying electoral choice to many township residents and gave the Democrats a lock on a majority of the township council seats.  Their plan is a textbook gerrymander.    

    When informed of the partisan impact of their plans, Township Council claimed ignorance and refused to even look into it. When offered the evidence that their plans violated the Pennsylvania Constitution, which they had all sworn to uphold and protect, Township Council refused to look at the data. Ignorance is no excuse. Willful ignorance is evidence of intent.

    Despite the fact that their intent is plain, those fighting the Township Council in court actually bear no burden to prove the intent to gerrymander.  According to the PA Supreme Court, all that is needed is to prove the actual shift in numbers, which is in the data provided by the DelCo Bureau of Elections. It is indisputable. Despite this, the Township Solicitor tried to argue in his submitted findings of fact(given to the court weeks after the hearing) that the data supplied by the Petitioners(plaintiffs) was incorrect, and he said the data he obtained from the county was different.  Fortunately the Petitioners caught the Solicitor red-handed in his attempt to mislead the court and they exposed it to the judge. The Solicitors data was from June of 2023 while the Petitioners’ data was from August 2022 when the redistricting process started, so of course there were registration changes over 10 months(there are changes every week!).  Of course the Solicitor never mentioned that the June 2023 data also clearly shows the Council’s gerrymander.  The PA Supreme Court, in their landmark 2018 ruling in League of Women Voters v. PA, made a sweeping ruling that the Township’s redistricting plan violates.  The PA Supreme Court struck down the Republican legislature’s redistricting plan as unconstitutional, and the court’s ruling suggests that a proposed redistricting plan doesn’t need to be as extreme as the plan they rejected, but that even a much more modest partisan impact may be sufficient to be in violation.  The Upper Providence plan is virtually identical to the overturned state plan in terms of its partisan shift and expected vote share changes, so it would seem to be in clear violation of the precedent established by our state’s highest court. The redistricting plan adopted nine months ago by the Upper Providence Township Council is a direct challenge to the precedent established by the Supreme Court of Pennsylvania.  Basically the Democrat-majority Upper Providence Council told the Democrat-majority Supreme Court to take their precedent and shove it where the sun doesn’t shine.        

    The Township’s approved plan was so egregious, and they were so committed to the gerrymander, that Council went beyond just violating our state constitution(as if that isn’t enough!).  They also violated our Township Home Rule Charter(think of it as a township constitution) and potentially also state law in their zeal to make their numbers “work” so they could make sure to pass their gerrymander.  The Home Rule Charter requires that population be based on the adult population, not total population.  Their plan has an adult population variance between the smallest and largest districts of over 15%, well beyond the 10% safe harbor.  Alternative plans proposed by township residents not only inconvenienced only a few hundred residents, but did so with a population variance of around 3% for both the adult population and total population.  The Council’s plan also split a census block to make their gerrymander “work.”  But the state statute on redistricting requires the Township to redistrict with the data from the Census “as reported” and splitting a census block(and thus not knowing the population of each part) may violate state law since the population of each part of that split block was not “as reported” in the Census.

    One can only hope that the judge who heard the case applies the Supreme Court of PA precedent here. That is the only way to actually stop their gerrymander. While the other issues of the split census block and the Home Rule Charter violation are interesting questions, the Council can easily replace their approved plan with one of their other gerrymandered maps that doesn’t split a census block or stays within the 10% safe harbor on both adult and total population.  However, the judge in this case did rule in the Council chairman’s favor earlier this year in an election case where he likely should have been kicked off the ballot since he had previously re-registered as an Independent and remained one when trying to get on the ballot as a Democrat, a pretty clear violation of election rules.  While I don’t know the judge’s rationale in that case, several lawyers I heard speaking of the case thought the councilman had no case and they were all surprised by the decision.  But even if the judge rules in the Petitioners’ favor, it is likely he will send it back to the Township to try again. I’d prefer the judge to just pick an alternate plan, as this Township Council has shown they have no regard for the rights of us citizens and I have no doubt they will again try to pass a gerrymandered plan, which will just end up back in court.

  5. The judge just ruled today against Upper Providence Township. He threw out their corrupt redistricting plan and remanded it back to the township for a do-over.
    Hopefully they will behave themselves this time and do it right. Stay tuned.

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