CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 11/23/2023 1

Unsuccessful Injunction Against State-Court 

Proscription on Political Gerrymandering 

League of Women Voters of Pennsylvania v. Pennsylvania 

(Michael M. Baylson, E.D. Pa. 2:17-cv-5137) 

and Corman v. Torres (Christopher C. Conner, Kent A. 

Jordan, and Jerome B. Simandle, M.D. Pa. 1:18-cv-443) 

After a state supreme court redrew congressional district lines to 

remedy excessive partisan gerrymandering, opponents of the new 

lines sought a federal-court injunction against the state-court decision. A three-judge district court declined to enjoin the state court’s 

new lines. An earlier attempt to remove the litigation to federal court 

was unsuccessful because the removal was attempted without the 

consent of all defendants. 

Subject: District lines. Topics: Matters for state courts; 

malapportionment; three-judge court; intervention; case 

assignment; removal; attorney fees. 

Litigation over partisan gerrymandering in 2017 and 2018 included a federalcourt challenge to a state supreme court’s redistricting of Pennsylvania’s members of Congress. Related actions were resolved in one of the commonwealth’s 

other districts. 

Challenging Pennsylvania’s Supreme Court 

According to a federal complaint filed in the Middle District of Pennsylvania 

on February 22, 2018, “This is an action concerning, inter alia, the Pennsylvania Supreme Court’s striking of a validly-enacted congressional districting 

plan and issuance of a substitute plan, each action in direct violation of the 

Elections Clause of the United States Constitution (the ‘Elections Clause’).”1

Pennsylvania’s supreme court declared on January 22 “that the Congressional Redistricting Act of 2011 clearly, plainly and palpably violates the 

Constitution of the Commonwealth of Pennsylvania” and enjoined Pennsylvania from using the plan in 2018 congressional elections.2

 On February 5, 

2018, U.S. Supreme Court Justice Alito declined petitions to stay 

the injunction.3 The Pennsylvania court said that it would begin procedures 

1. Complaint, Corman v. Torres, No. 1:18-cv-443 (M.D. Pa. Feb. 22, 2018), D.E. 1 [hereinafter Corman Complaint]; Corman v. Torres, 287 F. Supp. 3d 558, 565 (M.D. Pa. 2018). 

2. League of Women Voters of Pa. v. Commonwealth, 175 A.3d 282 (Pa.), cert. denied, 586 

U.S. ___, 139 S. Ct. 445 (2018); see Corman, 287 F. Supp. 3d at 564; see also Michael Wines & 

Trip Gabriel, Pennsylvania District Map Is Ruled Unconstitutional, N.Y. Times, Jan. 23, 2018, 

at A10. 

3. Docket Sheet, McCann v. League of Women Voters of Pa., No. 17A802 (U.S. Jan. 29, 

2018); Docket Sheet, Turzai v. League of Women Voters of Pa., No. 17A795 (U.S. Jan. 26, 

2018); see Adam Liptak, Justices Decline to Halt Court’s Order to Redraw a Partisan Election 

Map, N.Y. Times, Feb. 6, 2018, at A10. 
Unsuccessful Injunction Against State-Court Proscription on Political Gerrymandering 

2 Federal Judicial Center 11/23/2023 

to establish new districts unless the other two branches of government submitted a constitutional plan by February 15.4

 A 139-page opinion issued on 

February 7 explained the court’s conclusions.5 “The General Assembly failed 

to pass legislation for the Governor’s approval, thereby making it impossible 

for our sister branches to meet the Court’s deadline.”6 So the court adopted a 

remedial plan, “which shall be implemented forthwith in preparation for the 

May 15, 2018 primary election.”7

 The U.S. Supreme Court declined to stay the 

ruling.8

The plaintiffs—the majority leader of Pennsylvania’s senate, the chair of 

the senate committee with jurisdiction over congressional districting, and 

eight Pennsylvania members of Congress—filed with their complaint against 

Pennsylvania’s election officials a motion for a temporary restraining order 

and a preliminary injunction.9

 Because the case challenged the state court’s 

congressional redistricting, the plaintiffs also filed a notice requesting appointment of a three-judge district court.10

On the day that the federal complaint was filed, state-court plaintiffs 

moved to intervene as additional defendants in the federal case.11

On February 23, Chief Circuit Judge D. Brooks Smith appointed Circuit 

Judge Kent A. Jordan and District of New Jersey Judge Jerome B. Simandle to 

join Middle District of Pennsylvania Judge Christopher C. Conner as the 

three-judge district court.12 That day, the National Democratic Redistricting 

Committee moved to intervene as yet another defendant.13

On the day that it was appointed, the three-judge court denied the plaintiffs immediate relief but set the case for expedited consideration with a hearing scheduled for March 9.14

Following a March 1 hearing on the intervention motions,15 the court decided on March 2 to grant intervention as defendants to individual voters who 

4. League of Women Voters of Pa., 175 A.3d 282; see Corman, 287 F. Supp. 3d at 564. 

5. League of Women Voters of Pa. v. Commonwealth, 178 A.3d 737 (Pa. 2018). 

6. League of Women Voters of Pa. v. Commonwealth, 181 A.3d 1083, 1086 (Pa. 2018).

7. Id. at 1087; see Corman, 287 F. Supp. 3d at 561, 565 (noting, “Pennsylvania’s Republicandominated General Assembly and Democratic Governor were unable to agree on remedial 

congressional redistricting legislation by the deadlines mandated in the January 22 order.”). 

8. Turzai v. League of Women Voters, 583 U.S. 1177 (2018); see Adam Liptak, Justices 

Won’t Block Pennsylvania Redistricting, N.Y. Times, Mar. 20, 2018, at A20. 

9. Motion, Corman v. Torres, No. 1:18-cv-443 (M.D. Pa. Feb. 22, 2018), D.E. 3; see Corman

Complaint, supra note 1; Corman, 287 F. Supp. 3d at 561. 

10. Notice, Corman, No. 1:18-cv-443 (M.D. Pa. Feb. 22, 2018), D.E. 4; see 28 U.S.C. 

§ 2284(a).

11. Intervention Brief, Corman, No. 1:18-cv-443 (M.D. Pa. Feb. 22, 2018), D.E. 6; Intervention Motion, id. (Feb. 22, 2018), D.E. 5. 

12. Order, id. (Feb. 23, 2018), D.E. 11. 

Judge Simandle died on July 19, 2019. Federal Judicial Center Biographical Directory of 

Article III Federal Judges, www.fjc.gov/history/judges. 

13. Intervention Brief, Corman, No. 1:18-cv-443 (M.D. Pa. Feb. 23, 2018), D.E. 13; Intervention Motion, id. (Feb. 23, 2018), D.E. 12; Corman, 287 F. Supp. 3d at 565–66. 

14. Order, Corman, No. 1:18-cv-443 (M.D. Pa. Feb. 23, 2018), D.E. 19. 

15. Transcript, id. (Mar. 1, 2018, filed Mar. 8, 2018), D.E. 125 [hereinafter Intervention 
Unsuccessful Injunction Against State-Court Proscription on Political Gerrymandering 

Federal Judicial Center 11/23/2023 3

were plaintiffs in the state-court case but to deny intervention to the League of 

Women Voters—at one time a state-court plaintiff—and the National Democratic Redistricting Committee, allowing them nevertheless to participate as 

amici curiae.16

On March 19, the district court determined that the federal plaintiffs did 

not have standing to pursue their complaint.17 The state legislators did not 

have standing because “a legislator suffers no Article III injury when alleged 

harm is borne equally by all members of the legislature.”18 As to the members 

of Congress, “Case law strongly suggests that a legislator has no legally cognizable interest in the composition of the district he or she represents.”19

On April 10, the court denied a pro se motion to intervene and seek reconsideration of the court’s decision.20 The court of appeals affirmed denial of intervention on September 25, because the movant’s 

motion does not address how his particular participation would be required 

to achieve in some concrete fashion the relief sought. We note that, in seeking 

to intervene on the defendants’ side, the eighteen individual state-court petitioners, who were granted leave to intervene by the District Court, were the 

only parties to present evidence at trial of the 2011 map’s invalidity and the 

qualities of a map that would comply with the Pennsylvania Constitution.21

The U.S. Supreme Court declined review of the decision by Pennsylvania’s 

supreme court.22

Federal Gerrymander Challenges Based on the Elections Clause 

A federal complaint filed in the Eastern District of Pennsylvania on October 

2, 2017, argued, “Because the Elections Clause is a source of only neutral procedural rules, it does not give [Pennsylvania’s] General Assembly the authority 

to draw Congressional districts based on the likely voting preferences of plaintiffs and other citizens.”23 The Elections Clause, which is the first paragraph of 

the Constitution’s Article I, section 4, authorizes states to determine how 

members of Congress will be selected and it also authorizes Congress to regulate the states on this issue: “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 

Hearing Transcript]. 

16. Order, id. (Mar. 2, 2018), D.E. 85; Corman, 287 F. Supp. 3d at 565. 

17. Corman, 287 F. Supp. 3d 558; see Intervention Hearing Transcript, supra note 15, at 38 

(“Judge Jordan: . . . The League of Women Voters was not a party to the suit at the end in the 

state system . . . .”). 

18. Id. at 567; see Raines v. Byrd, 521 U.S. 811, 821 (1997). 

19. Corman, 287 F. Supp. 3d at 569. 

20. Order, Corman, No. 1:18-cv-443 (M.D. Pa. Apr. 10, 2018), D.E. 140; see Intervention 

Motion, id. (Apr. 3, 2018), D.E. 139. 

21. Corman v. Secretary, 751 F. App’x 157, 160–61 (3d Cir. 2018). 

22. Turzai v. League of Women Voters of Pa., 586 U.S. ___, 139 S. Ct. 445 (2018). 

23. Complaint at 1, Agre v. Wolf, No. 2:17-cv-4392 (E.D. Pa. Oct. 2, 2017), D.E. 1; see

Amended Complaint, id. (Nov. 17, 2017), D.E. 88. 
Unsuccessful Injunction Against State-Court Proscription on Political Gerrymandering 

4 Federal Judicial Center 11/23/2023 

such Regulations, except as to the Places of chusing Senators.”24 In later briefing, the plaintiffs argued that gerrymanders meant to affect the outcome of 

congressional elections are ultra vires under the Elections Clause.25

Following a four-day trial in December,26 a three-judge district court ruled 

on January 10, 2018, by a vote of two to one, against the plaintiffs.27 Chief Circuit Judge Smith did not see in the Elections Clause a role for the courts in 

selecting members of Congress.28

Circuit Judge Patty Shwartz concluded that the plaintiffs could not prevail 

because, although they included voters in every one of Pennsylvania’s congressional districts, the plaintiff in one district did not present a strong enough 

case.29 “Plaintiffs have adduced evidence that plaintiffs from seventeen of the 

eighteen districts suffered an injury in fact. They, however, failed to present 

facts to show that the plaintiff from the Fourth Congressional District sustained an injury sufficient to confer standing.”30 The plaintiff from district 4 

testified that her district was less gerrymandered than the others.31 “Although 

there may be a case in which a political gerrymandering claim may successfully 

be brought under the Elections Clause, this is not such a case.”32

District Judge Michael M. Baylson, to whom the case was originally assigned, concluded on the other hand, “Gerrymandering is a wrong in search 

of a remedy.”33 “In summary, the history of the Elections Clause and the 

United States Supreme Court decisions [interpreting the clause] establish that 

there are substantive restrictions on states when they determine the ‘manner’ 

of apportioning voters into congressional districts.”34

The court assigned to Judge Baylson as a related case another challenge to 

partisan gerrymandering as a violation of the Elections Clause, equal protection, and freedom of speech and association.35 On November 22, 2017, Judge 

Baylson stayed the second case, which was filed on November 9, pending completion of the first case’s trial.36 Following resolution of the first case, Judge 

Baylson granted the parties in the second case a stipulated dismissal.37

24. U.S. Const. art. I, § 4. 

25. Plaintiff Brief at 1–2, Agre, No. 2:17-cv-4392 (E.D. Pa. Nov. 30, 2017), D.E. 157. 

26. Transcripts, id. (Dec. 4 to 7, 2017, filed Dec. 13, 2017), D.E. 195 to 198. 

27. Agre v. Wolf, 284 F. Supp. 3d 591 (E.D. Pa. 2018), appeal dismissed for want of jurisdiction, 584 U.S. ___, 138 S. Ct. 2602 (2018) (ruling by the district court on speech-or-debate 

immunity), and appeal dismissed as moot, 584 U.S. ___, 138 S. Ct. 2576 (2018). 

28. Agre, 284 F. Supp. 3d at 592–630. 

29. Id. at 630–48. 

30. Id. at 642. 

31. Id.

32. Id. at 631. 

33. Id. at 648 (Judge Baylson, dissenting). 

34. Id. at 696. 

35. Docket Sheet, Diamond v. Torres, No. 5:17-cv-5054 (E.D. Pa. Nov. 9, 2017); Complaint, id. (Nov. 9, 2017), D.E. 1; see Amended Complaint, id. (Nov. 2, 2017), D.E. 42. 

36. Order, id. (Nov. 22, 2017), D.E. 40. 

37. Stipulated Dismissal, id. (Apr. 9, 2018), D.E. 86. 
Unsuccessful Injunction Against State-Court Proscription on Political Gerrymandering 

Federal Judicial Center 11/23/2023 5

Improper Removal 

A third related case before Judge Baylson was an action removed by a state 

senator concerning how a pending decision by Pennsylvania’s supreme court 

on gerrymandering would affect an ongoing special election to fill a congressional vacancy.38 The plaintiffs filed an emergency motion to remand the case 

two days later,39 and Judge Baylson set the case for hearing at 2:00 that afternoon.40 Pennsylvania’s lieutenant governor—one of the defendants—filed a 

motion to remand the case, noting his lack of consent to the removal.41 The 

removing senator then sought to withdraw his removal.42

Following the hearing, at which Judge Baylson noted chambers time spent 

on the clearly improper removal,43 he remanded the case to state court.44 On 

April 13, 2018, Judge Baylson awarded the plaintiffs $29,360.02 in attorney 

fees and costs.45

The court of appeals decided to post a video recording of a November 7 

oral argument on the court’s website.46 On April 24, 2019, the court of appeals 

affirmed the fee award, but it determined that because the senator was named 

as a defendant in his official capacity it was not proper to hold him personally 

liable for fees.47

38. Notice of Removal, League of Women Voters of Pa. v. Pennsylvania, No. 2:17-cv-5137 

(E.D. Pa. Nov. 14, 2017), D.E. 1; League of Women Voters of Pa. v. Pennsylvania, 921 F.3d 

378, 381 (3d Cir. 2019). 

39. Motion, League of Women Voters of Pa., No. 2:17-cv-5137 (E.D. Pa. Nov. 16, 2017), 

D.E. 2; League of Women Voters of Pa., 921 F.3d at 381. 

40. Notice, League of Women Voters of Pa., No. 2:17-cv-5137 (E.D. Pa. Nov. 16, 2017), 

D.E. 3. 

41. Motion, id. (Nov. 16, 2017), D.E. 5. 

42. Motion, id. (Nov. 16, 2017), D.E. 9; League of Women Voters of Pa., 921 F.3d at 381–

82. 

43. Transcript at 8, League of Women Voters of Pa., No. 2:17-cv-5137 (E.D. Pa. Nov. 16, 

2017, filed Nov. 21, 2017), D.E. 22. 

44. Order, id. (Nov. 16, 2017), D.E. 15; League of Women Voters of Pa., 921 F.3d at 380. 

45. Opinion, League of Women Voters of Pa., No. 2:17-cv-5137 (E.D. Pa. Apr. 13, 2018), 

D.E. 28, 2018 WL 1787211. 

46. Docket Sheet, League of Women Voters of Pa. v. Pennsylvania, No. 18-1838 (3d Cir. 

Apr. 18, 2018); Oral Argument, id. (Nov. 7, 2018), player.piksel.tech/v/refid/3CA/prefid/18_ 

1838 (video recording). 

47. League of Women Voters of Pa., 921 F.3d 378.