By Joseph Ax
(Reuters) - Pennsylvania's top court on Monday threw out the state's congressional map, ruling that Republican legislators unlawfully sought partisan advantage, and gave them three weeks to rework it in a decision that could boost Democratic chances of retaking the U.S. House of Representatives.
In a 5-2 decision, the Pennsylvania Supreme Court ruled the electoral map violated the state's Constitution by manipulating the district boundaries to marginalize Democratic voters, a practice called partisan gerrymandering.
Democrats, who hold only five of the state's 18 congressional districts despite Pennsylvania's status as an electoral swing state, hope to regain control of the House in the November mid-term elections by flipping 24 seats now held by Republicans nationwide.
A new map could give Democratic candidates a chance to capture as many as half a dozen Republican seats in Pennsylvania alone, with national polls showing voters strongly favoring Democrats in 2018.
The court's five Democratic members said the congressional map "clearly, plainly and palpably violates the Constitution of the Commonwealth of Pennsylvania." Both Republican justices dissented.
The court's two-page order said the legislature has until Feb. 9 to submit a new map to Democratic Governor Tom Wolf, who would have until Feb. 15 to sign off. If those deadlines pass without an agreement, the court said it would adopt its own boundaries.
Experts have held up Pennsylvania as one of the most extreme examples of gerrymandering, pointing to bizarrely shaped districts that have earned nicknames like "Goofy kicking Donald Duck." The Republican-controlled legislature created the current map in 2011, after the 2010 U.S. census.
The gerrymandered lines have been worth two or three additional seats to Pennsylvania Republicans, according to Michael Li, a redistricting expert at New York University.
'BYPASS THE CONSTITUTION'
The state Senate president, Joe Scarnati, and majority leader, Jake Corman, both Republicans, called the court's deadline "impossible" and said they would request a stay from the U.S. Supreme Court.
"It is clear that with this ruling the court is attempting to bypass the Constitution and the legislative process and legislate themselves, directly from the bench," the two lawmakers said in a statement.
But the legal challenge, filed by the League of Women Voters of Pennsylvania, relied on the state Constitution, not the U.S. Constitution, and lawyers for the plaintiffs said the U.S. Supreme Court has no jurisdiction over the case.
"It's well established that the United States Supreme Court does not review decisions of state force that exclusively construe state law," attorney Stanton Jones said.
The U.S. Supreme Court is already weighing whether to set a legal standard for partisan gerrymandering in two cases out of Wisconsin and Maryland. The court is expected to rule by the end of June in both cases.
Monday's decision could encourage similar state-court challenges elsewhere, said Li, the redistricting expert.
"It shows there may be a second front in the war against gerrymandering that does not depend on what the U.S. Supreme Court does or does not do in the Wisconsin and Maryland cases," Li said.
A panel of federal judges in North Carolina two weeks ago threw out that state's Republican-drawn map as illegally gerrymandered and ordered new lines drawn, a potential boost to Democrats in U.S. House races in that state. The U.S. Supreme Court, however, blocked that ruling last week, meaning a new electoral map in North Carolina is unlikely this year.
The plaintiffs had argued the map violates the Pennsylvania Constitution's guarantees of free expression and equal protection. The court's order did not specify how the map runs afoul of the law but said a full opinion will be released in the future.
One Democratic justice, Max Baer, agreed with the court majority that the map is illegal but said he would have delayed a new map until the 2020 election cycle to avoid "chaos."
The March special election for a vacant U.S. House seat in western Pennsylvania is not affected, the court said.
(Reporting by Joseph Ax in New York; Editing by Colleen Jenkins and Will Dunham)