Amanda Holt, et al, Aplts v. 2011 Legislative Reapportionment Commission - (majority)
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[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
AMANDA E. HOLT, ELAINE TOMLIN,
LUIS NUDI, DIANE EDBRIL, DARIEL I.
JAMIESON, LORA LAVIN, JAMES
YOEST, JEFFREY MEYER,
CHRISTOPHER H. FROMME, TIMOTHY
F. BURNETT, CHRIS HERTZOG, GLEN
ECKHART, JOAN JESSEN, ELIZABETH
ROGAN, JAMES HERTZLER, GARY
EICHELBERGER, BARBARA B. CROSS,
AND MARY FRANCES BALLARD,
Appellants
v.
2011 LEGISLATIVE
REAPPORTIONMENT COMMISSION,
Appellee
DENNIS J. BAYLOR,
Appellant
v.
2011 LEGISLATIVE
REAPPORTIONMENT COMMISSION,
Appellee
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No. 133 MM 2012
Appeal from the Legislative
Reapportionment Plan of the 2011
Legislative Reapportionment Commission,
dated June 8, 2012
ARGUED: September 13, 2012
No. 126 MM 2012
Appeal from the Legislative
Reapportionment Plan of the 2011
Legislative Reapportionment Commission,
dated June 8, 2012
ARGUED: September 13, 2012
STATE REPRESENTATIVE JOHN P.
SABATINA, JR. FOR THE 174TH
LEGISLATIVE DISTRICT AND STATE
REPRESENTATIVE THOMAS R.
CALTAGIRONE FOR THE 127TH
LEGISLATIVE DISTRICT,
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Appellants
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v.
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2011 LEGISLATIVE
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REAPPORTIONMENT COMMISSION,
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Appellee
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THOMAS SCHIFFER, RACHEL J.
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AMDUR, JOAN TARKA, LAWRENCE W. :
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ABEL, MARGARET G. MORSCHECK,
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LAWRENCE J. SHRZAN, SHIRLEY
RESNICK, SUSAN JEWETT, AND CARL :
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DUZEN,
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Appellants
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2011 LEGISLATIVE
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REAPPORTIONMENT COMMISSION,
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Appellee
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PATTY KIM,
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Appellant
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v.
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No. 127 MM 2012
Appeal from the Legislative
Reapportionment Plan of the 2011
Legislative Reapportionment Commission,
dated June 8, 2012
ARGUED: September 13, 2012
No. 128 MM 2012
Appeal from the Legislative
Reapportionment Plan of the 2011
Legislative Reapportionment Commission,
dated June 8, 2012
ARGUED: September 13, 2012
No. 129 MM 2012
Appeal from the Legislative
Reapportionment Plan of the 2011
Legislative Reapportionment Commission,
dated June 8, 2012
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 2
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2011 LEGISLATIVE
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REAPPORTIONMENT COMMISSION,
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Appellee
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COUNCIL PRESIDENT HOLLY BROWN, :
MAYOR CAROLYN COMITTA, JOHN
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HELLMAN, MAYOR LEO SCODA,
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COUNCIL PRESIDENT RICH KIRKNER, :
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COUNCILPERSON JENNIFER MAYO,
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Appellants
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2011 LEGISLATIVE
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REAPPORTIONMENT COMMISSION,
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Appellee
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DANIEL P. DOHERTY, CHERYL L.
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NICHOLAS, STACY C. HANNAN,
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KRISTINE L. KIPPHUT, SUSAN SABA,
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TARA ANTHONY, PAULA
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BRENSINGER, AND SETH D.
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MCELROY, PETITIONES
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Appellants
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2011 LEGISLATIVE
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REAPPORTIONMENT COMMISSION,
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Appellee
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ARGUED: September 13, 2012
No. 130 MM 2012
Appeal from the Legislative
Reapportionment Plan of the 2011
Legislative Reapportionment Commission,
dated June 8, 2012
ARGUED: September 13, 2012
No. 131 MM 2012
Appeal from the Legislative
Reapportionment Plan of the 2011
Legislative Reapportionment Commission,
dated June 8, 2012
ARGUED: September 13, 2012
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 3
STATE REPRESENTATIVE ANGEL
CRUZ, STATE REPRESENTATIVE W.
CURTIS THOMAS, STATE
REPRESENTATIVE ROSITA C.
YOUNGBLOOD, STATE
REPRESENTATIVE JOHN P. SABATINA,
JR., ANGEL ORTIZ, BRIAN EDDIS,
JOSEPH F. WEST, SR., AND KAREN A.
WEST,
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Appellants
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2011 LEGISLATIVE
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REAPPORTIONMENT COMMISSION,
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Appellee
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JOSH SHAPIRO, LESLIE RICHARDS,
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DAYLIN LEACH, SAMUEL ADENBAUM, :
IRA TACKEL, MARCEL GROEN, HARVY :
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GLICKMAN, AND DAVID DORMONT,
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Appellants
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2011 LEGISLATIVE
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REAPPORTIONMENT COMMISSION,
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Appellee
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SENATOR JAY COSTA, SENATOR
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LAWRENCE M. FARNESE, JR.,
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SENATOR CHRISTINE M.
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TARTAGLIONE, SENATOR SHIRLEY M. :
KITCHEN, SENATOR LEANNA M.
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WASHINGTON, SENATOR MICHAEL J. :
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STACK, SENATOR VINCENT J.
No. 132 MM 2012
Appeal from the Legislative
Reapportionment Plan of the 2011
Legislative Reapportionment Commission,
dated June 8, 2012
ARGUED: September 13, 2012
No. 134 MM 2012
Appeal from the Legislative
Reapportionment Plan of the 2011
Legislative Reapportionment Commission,
dated June 8, 2012
ARGUED: September 13, 2012
No. 39 WM 2012
Appeal from the Legislative
Reapportionment Plan of the 2011
Legislative Reapportionment Commission,
dated June 8, 2012
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 4
HUGHES, SENATOR ANTHONY H.
WILLIAMS, SENATOR JUDITH L.
SCHWANK, SENATOR JOHN T.
YUDICHAK, SENATOR DAYLIN LEACH,
SENATOR LISA M. BOSCOLA,
SENATOR ANDREW E. DINNIMAN,
SENATOR JOHN P. BLAKE, SENATOR
RICHARD A. KASUNIC, SENATOR
JOHN N. WOZNIAK, SENATOR JIM
FERLO, SENATOR WAYNE D.
FONTANA, SENATOR JAMES
BREWSTER, AND SENATOR TIMOTHY
J. SOLOBAY,
Appellants
v.
2011 LEGISLATIVE
REAPPORTIONMENT COMMISSION,
Appellee
TONY AMADIO AND JOE SPANIK,
Appellants
v.
2011 LEGISLATIVE
REAPPORTIONMENT COMMISSION,
Appellee
RICHARD LATTANZI, MAYOR OF THE
CITY OF CLAIRTON AND RICHARD
FORD, COUNCILMAN IN THE CITY OF
CLAIRTON,
Appellants
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ARGUED: September 13, 2012
No. 40 WM 2012
Appeal from the Legislative
Reapportionment Plan of the 2011
Legislative Reapportionment Commission,
dated June 8, 2012
SUBMITTED: September 13, 2012
No. 41 WM 2012
Appeal from the Legislative
Reapportionment Plan of the 2011
Legislative Reapportionment Commission,
dated June 8, 2012
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 5
v.
2011 LEGISLATIVE
REAPPORTIONMENT COMMISSION,
Appellee
KATHRYN VARGO, JENNIFER GRAB,
SANDRA WOLFE, ANTONIO LODICO,
EMILY CLEATH, DANIEL MCARDLE
BOOKER, RACHEL CANNING, AND
PATRICK CLARK,
Appellants
v.
2011 LEGISLATIVE
REAPPORTIONMENT COMMISSION,
Appellee
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SUBMITTED: September 10, 2012
No. 42 WM 2012
Appeal from the Legislative
Reapportionment Plan of the 2011
Legislative Reapportionment Commission,
dated June 8, 2012
ARGUED: September 13, 2012
OPINION
MR. CHIEF JUSTICE CASTILLE
DECIDED: May 8, 2013
This is the second set of direct appeals to this Court arising out of the work of the
2011 Legislative Reapportionment Commission (“LRC”) of the Commonwealth of
Pennsylvania.
Previously, we filed a per curiam order on January 25, 2012, and declared that
the legislative redistricting plan filed by the LRC on December 12, 2011 (the “2011 Final
Plan”), was contrary to law under Article II, Section 17(d) of the Pennsylvania
Constitution, and in accordance with the directive in that constitutional provision, we
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 6
remanded the matter to the LRC to reapportion the Commonwealth in a manner
consistent with an opinion to follow. We filed our opinion on February 3, 2012. Holt v.
Legislative Reapportionment Comm’n, 38 A.3d 711 (Pa. 2012) (“Holt I”).
No party
sought reconsideration or reargument. As a result of this Court’s order and opinion, the
LRC produced a second plan which it adopted on June 8, 2012 (the “2012 Final Plan”),
and these consolidated appeals arise out of challenges to that plan. After consideration
of the specific challenges forwarded by appellants, and the LRC’s response, we now
hold that the LRC’s 2012 Final Plan is not contrary to law, and the appeals are
dismissed.
I.
Background
The substantive task of the LRC during decennial legislative redistricting is
governed by Article II, Sections 16 and 17 of the Pennsylvania Constitution. Section 16
sets forth specific criteria the LRC must utilize in creating the legislative district map:
The Commonwealth shall be divided into fifty senatorial and
two hundred three representative districts, which shall be
composed of compact and contiguous territory as nearly
equal in population as practicable. Each senatorial district
shall elect one Senator, and each representative district one
Representative. Unless absolutely necessary no county, city,
incorporated town, borough, township or ward shall be
divided in forming either a senatorial or representative
district.
PA. CONST. art. II, § 16. Section 17 further describes the redistricting procedure, and
specifically provides that, once the LRC has adopted a plan, “any aggrieved person”
may appeal directly to this Court.
PA. CONST. art. II, § 17(d).
Section 17 also
commands that, if that aggrieved citizen “establishes that the final plan is contrary to
law,” this Court “shall issue an order remanding the plan to the commission and
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 7
directing the commission to reapportion the Commonwealth in a manner not
inconsistent with such order.” Id.1
1
Section 17 describes in detail the procedures for constituting the LRC, and the LRC’s
responsibilities during the decennial reapportionment. In relevant part, Section 17
provides:
§ 17. Legislative Reapportionment Commission
(a) In each year following the year of the Federal decennial
census, a Legislative Reapportionment Commission shall be
constituted for the purpose of reapportioning the
Commonwealth. The commission shall act by a majority of
its entire membership.
(b) The commission shall consist of five members: four of
whom shall be the majority and minority leaders of both the
Senate and the House of Representatives, or deputies
appointed by each of them, and a chairman selected as
hereinafter provided. No later than 60 days following the
official reporting of the Federal decennial census as required
by Federal law, the four members shall be certified by the
President pro tempore of the Senate and the Speaker of the
House of Representatives to the elections officer of the
Commonwealth who under law shall have supervision over
elections. The four members within 45 days after their
certification shall select the fifth member, who shall serve as
chairman of the commission, and shall immediately certify
his name to such elections officer. The chairman shall be a
citizen of the Commonwealth other than a local, State or
Federal official holding an office to which compensation is
attached. If the four members fail to select the fifth member
within the time prescribed, a majority of the entire
membership of the Supreme Court within 30 days thereafter
shall appoint the chairman as aforesaid and certify his
appointment to such elections officer. Any vacancy in the
commission shall be filled within 15 days in the same
manner in which such position was originally filled.
(c) No later than ninety days after either the commission has
been duly certified or the population data for the
( continued)
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 8
(continued
)
Commonwealth as determined by the Federal decennial
census are available, whichever is later in time, the
commission shall file a preliminary reapportionment plan with
such elections officer. The commission shall have thirty
days after filing the preliminary plan to make corrections in
the plan. Any person aggrieved by the preliminary plan shall
have the same thirty-day period to file exceptions with the
commission in which case the commission shall have thirty
days after the date the exceptions were filed to prepare and
file with such elections officer a revised reapportionment
plan. If no exceptions are filed within thirty days, or if filed
and acted upon, the commission's plan shall be final and
have the force of law.
(d) Any aggrieved person may file an appeal from the final
plan directly to the Supreme Court within thirty days after the
filing thereof. If the appellant establishes that the final plan is
contrary to law, the Supreme Court shall issue an order
remanding the plan to the commission and directing the
commission to reapportion the Commonwealth in a manner
not inconsistent with such order.
(e) When the Supreme Court has finally decided an appeal
or when the last day for filing an appeal has passed with no
appeal taken, the reapportionment plan shall have the force
of law and the districts therein provided shall be used
thereafter in elections to the General Assembly until the next
reapportionment as required under this section seventeen.
*
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(h) If a preliminary, revised or final reapportionment plan is
not filed by the commission within the time prescribed by this
section, unless the time be extended by the Supreme Court
for cause shown, the Supreme Court shall immediately
proceed on its own motion to reapportion the
Commonwealth. . . .
PA. CONST. art. II, § 17 (footnotes omitted).
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By way of further background, in Holt I, we summarized the litigation over the
2011 Final Plan:
On December 12, 2011, the LRC approved its Final
Plan by a vote of 4 to 1, with Senate Minority Leader Jay
Costa dissenting.
Absent appeals within the thirty day period afforded
by the Constitution, the Final Plan would have had force of
law. See PA. CONST. art. II, § 17(e). However, twelve
separate appeals from the 2011 Final Plan were filed by
citizens claiming to be aggrieved, as is their constitutional
right. See PA. CONST. art. II, § 17(d) (“Any aggrieved person
may file an appeal from the final plan directly to the Supreme
Court within thirty days after the filing thereof.”). In each
appeal, the appellants filed petitions for review, against
several of which the LRC filed preliminary objections. The
LRC also filed a prompt consolidated answer, responding to
the first eleven petitions for review. This Court then directed
briefing on an accelerated schedule; all parties timely
complied. The Court reserved a special session to hear oral
argument on January 23, 2012, in Harrisburg, five days after
briefing, and we heard argument in nine of the appeals that
day. . . .
Two days later, on January 25, 2012, this Court
issued a per curiam order, declaring that the Final Plan was
contrary to law, and remanding to the LRC with a directive to
reapportion the Commonwealth in a manner consistent with
this Court's Opinion, which would follow. See Order, 1/25/12
(per curiam) (citing PA. CONST. art. II, § 17(d)). Our per
curiam order also directed that the 2001 Legislative
Reapportionment Plan, which this Court previously ordered
to “be used in all forthcoming elections to the General
Assembly until the next constitutionally mandated
reapportionment shall be approved,” would remain in effect
until a revised final 2011 Legislative Reapportionment Plan
having the force of law is approved. See Order, 1/25/12 (per
curiam) (citing PA. CONST. art. II, § 17(e) and Albert [v. 2001
Legislative Reapportionment Commission], 790 A.2d [989,]
991 [Pa. 2002]). That aspect of our mandate arose by
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operation of law; where a Final Plan is challenged on appeal,
and this Court finds the plan contrary to law and remands,
the proffered plan does not have force of law, and the prior
plan obviously remains in effect.
Holt I, 38 A.3d at 719-21 (footnotes omitted). Justices Baer, Todd and McCaffery joined
the majority opinion by this author in Holt I, Justices Saylor and Eakin each filed a
concurring and dissenting opinion, and Justice Orie Melvin filed a dissenting opinion.
Id. at 716-64.
After the Holt I decision was filed, Senator Dominic Pileggi and Representative
Michael Turzai – both members of the LRC by virtue of their positions as majority
leaders of their respective caucuses -- filed suit in federal court seeking to enjoin this
Court’s directive that existing districts should be used in the 2012 election cycle and
until the Court approved a constitutional reapportionment plan. In a February 8, 2011
order, the federal district court denied relief and concluded that the 2012 elections must
proceed under the only existing map, the 2001 Plan. Pileggi v. Aichele, 843 F. Supp. 2d
584 (E.D. Pa. 2012).
Ultimately, after one public meeting, the LRC produced a new preliminary
redistricting plan in April 2012. Timely exceptions, and alternative plans, were lodged,
but the LRC ultimately adopted the preliminary plan as its 2012 Final Plan by a 4-1 vote
on June 8, 2012, with LRC member, and Senate Minority Leader, Senator Jay Costa
voting against the Plan. Appellants then filed petitions for review at thirteen separate
docket numbers in this Court, all of which were consolidated for purposes of briefing,
argument, and decision.
We consider the parties’ arguments in light of our scope and standard of review,
which was a central point of dispute in Holt I, leading the Court to discuss the
appropriate review paradigm at some length. Our scope of review is plenary, subject to
the restriction that “a successful challenge must encompass the Final Plan as a whole;”
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in addition, we will not consider claims that were not raised before the LRC. 38 A.3d at
733 (citing Albert, supra and In re Reapportionment Plan, 442 A.2d 661, 666 n.7 (Pa.
1981) (“In re 1981 Plan”)). Our standard of review is defined by the Pennsylvania
Constitution: the plan may be held unconstitutional only if the appellants establish that it
is “contrary to law.” 38 A.3d at 733 (citing PA. CONST. art. II, § 17(d)). In Holt I, we
determined that the LRC’s 2011 Final Plan was contrary to law because it did not
comply with the requirements, set forth in Article II, Section 16 of the Pennsylvania
Constitution, that legislative districts be “composed of compact and contiguous territory
as nearly equal in population as practicable,” and that political subdivisions should not
be divided to form districts “unless absolutely necessary.” PA. CONST. art II, § 16. This
Court engages in a de novo, non-deferential review of the specific challenges raised by
the appellants. 38 A.3d at 735-36. A final plan is not entitled to a presumption of
constitutionality, but “enjoys the same status as any action or decision where the
challenging party bears the burden; and here, the burden is upon appellants to show
that the plan is contrary to law.” Id. at 735.
II.
Appellants and their Various Claims
A. The Appellants
As we stated in Holt I, our Constitution “permits any aggrieved person to file an
appeal from the LRC’s plan directly to this Court.” Id. at 724-25 (citing PA. CONST. art. II,
§ 17(d)). As with appeals from the 2011 Final Plan, the instant appeals from the 2012
Final Plan were brought by various registered Pennsylvania voters, both Republican
and Democrat. And, as with the 2011 Final Plan litigation, the lead appeal in the instant
matter, captioned Holt v. LRC and docketed at 133 MM 2012, was filed by “voters in the
Commonwealth of Pennsylvania who live in the Commonwealth’s wards, municipalities,
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and counties the [2012 Final Plan] split, often multiple times, to form Senate and House
of Representatives Districts [which the voters claim was] in violation of Article II, Section
16.” Holt Brief at 8.
The Holt appellants hail from Lehigh, Philadelphia, Allegheny,
Delaware, Chester, Washington, Montgomery and Cumberland Counties.
Appellants in the appeal docketed at 39 WM 2012 (“Costa”) are LRC member,
and Senate Minority Leader, Senator Jay Costa and the entire Democratic Senate
Caucus. Appellants in 40 WM 2012 (“Amadio”), Tony Amadio and Joe Spanik, and
appellants at 41 WM 2012 (“Lattanzi”), Richard Lattanzi and Richard Ford, who are the
mayor and a councilman of the City of Clairton, in Allegheny County, join in and
incorporate the arguments in Costa. Appellant in 129 MM 2012 (“Kim”), is an elected
official and voter in Dauphin County, who joins the Costa brief and also forwards
additional arguments specific to Harrisburg, Pennsylvania. Appellants in 42 WM 2012
(“Vargo”) are voters from Westmoreland, Allegheny and Cumberland Counties. Pro se
appellant Dennis J. Baylor, at 126 MM 2012 (“Baylor”), is a voter in Berks County.
Appellants in 127 MM 2012 (“Sabatina”) are elected officials and voters from
Philadelphia and Reading, Pennsylvania. The appellants in 128 MM 2012 (“Schiffer”)
are voters from Delaware County. In the appeal docketed at 130 MM 2012 (“Brown”),
appellants are residents and elected officials of West Chester and Phoenixville, in
Chester County. At docket number 131 MM 2012 (“Doherty”), appellants are residents
of Philadelphia, Montgomery, Bucks, Lehigh and Fayette Counties, and Audubon,
Pennsylvania. Appellants in 132 MM 2012 (“Cruz”) are voters and elected officials in
Philadelphia County. Finally, appellants in 134 MM 2012 (“Shapiro”) are voters and
elected officials from Montgomery and Delaware Counties who join the Costa brief and
add further argument in their own brief.
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In all of these appeals, the LRC is appellee. The LRC does not dispute the
standing of any of the appellants.2
B. Claims Raised by Appellants
In their current appeal, the Holt appellants raise a global challenge to the LRC’s
2012 Final Plan. They argue that the plan as a whole, like its predecessor, is contrary
to law because it contains numerous political subdivision splits that are not absolutely
necessary, in contravention of Article II, Section 16 of the Pennsylvania Constitution.
According to appellants, the alternate Holt plan maintains “a roughly equivalent level of
population deviation . . . . while employing significantly fewer political subdivision splits”
as directed in Holt I, and proves that the LRC’s 2012 plan still violates Section 16. Holt
Brief at 15 (quoting from Holt I, 38 A.3d at 753). The Holt appellants claim that any
differences between the 2011 Final Plan and the 2012 Final Plan are irrelevant for
purposes of the constitutional analysis; any marginal reduction in splits from one plan to
the next is attributable only to the relaxed population equality standard prospectively
approved in Holt I. The Holt parties submitted a revised alternate plan that also allowed
a greater range of deviation from the ideal population of each House and Senate
district, as contemplated by this Court’s Holt I opinion. Holt Brief at 7; 38 A.3d at 761.
The Holt plan uses a maximum deviation from ideal population of 7.87% for Senate
Districts and 7.75% for House Districts, as compared to the higher percentage
2
The LRC does argue, however, that the appeals in Sabatina, Schiffer, Kim, Brown,
Shapiro, Amadio, and Lattanzi are mere localized challenges, rather than challenges to
the 2012 Final Plan as a whole, and should therefore fail on this basis alone. Since we
hold that the global challenges fail, and we will not revisit our precedent requiring that
challenges be made to the plan as a whole, any appeal presenting a localized challenge
necessarily fails.
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deviations in the LRC’s 2012 Final Plan (7.96% in Senate Districts and 7.88% in House
Districts). Holt Brief at 15.
The Holt appellants further argue that the LRC could have easily achieved a
substantially greater fidelity to all of the mandates of Section 16 – compactness,
contiguity, and integrity of political subdivisions -- yet it failed to do so. According to the
Holt appellants, the LRC could have reduced total splits (counties, municipalities, and
wards) as follows:
2012 Final Plan
HOUSE
221
SENATE
37
Holt Alternate Plan
86
17
Holt Brief at 16; LRC Brief at 27-28. The Holt appellants allege that the extra splits in
the LRC’s plan “serve no legitimate purpose.” Holt Brief at 20.
The Holt appellants also argue that the 2012 Final Plan violates Section 16’s
requirements of compactness, using the “Polsby and Popper method”3 for quantitatively
measuring this aspect of the plan in terms of “dispersion, perimeter and population
ratios.” Holt Brief at 28. According to the Holt appellants, the average Polsby and
Popper score for the Senate districts under the 2012 Final Plan is 0.275, as compared
to .351 under the revised Holt alternate plan, and in the House, the average score for
the 2012 Final Plan is 0.277, as compared to 0.372 under the Holt alternative. “The
Revised Holt Plan therefore offers Senate districts that are more than 27% more
3
According to the Holt appellants, the Polsby and Popper method “has been widely
recognized as a means of measuring compactness ‘quantitatively in terms of dispersion,
perimeter, and population ratios.’ Vieth v. Jubelirer, 541 U.S. 267, 349 & n.3 [(2004)]
(Souter, J., dissenting) (citing Polsby & Popper, The Third Criterion: Compactness as a
Procedural Safeguard Against Partisan Gerrymandering, 9 YALE L. & POLICY REV. 301,
339-351 (1991) (other citations omitted)). . . . The objective formula used to compute
the ratio yields a score between 0 and 1.0, with 0 being the least compact possible
district and 1.0 being the most compact district possible.” Holt Brief at 28.
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compact than the LRC’s map and House districts that are more than 34% more
compact than the LRC’s map. Moreover, the Revised Holt Plan achieved a greater
degree of compactness in 40 out of 50 Senate Districts and 161 out of 203 House
Districts.” Id. at 28-29. The Holt appellants argue that their alternate plan demonstrates
that the “compactness problems” of the 2012 Final Plan are not unavoidable. Id. at 30.
Finally, the Holt appellants argue that the 2012 Final Plan has not resolved earlier
problems with inadequately contiguous territory, and the new map still has seven
unnecessary non-contiguous House districts.
The Holt appellants assert that in light of what they perceive to be the LRC’s
repeated and willful failure to comply with constitutional requirements, this Court should
remand with instructions that the LRC adopt a plan that contains no more political
subdivision splits than those contained in the Holt plan, and that complies with Section
16’s mandate that the district map be comprised of “compact and contiguous territory as
nearly equal in population as practicable.”
The Costa appellants similarly challenge the 2012 Final Plan as a whole, and
argue that the LRC’s maps continue to violate constitutional mandates, while serving
instead to preserve the partisan results of political gerrymandering.4
The Costa
appellants begin by noting that, in Pennsylvania, the “Republican Party currently
controls both the Senate and the House.
In the Senate, 30 seats are held by
Republicans and 20 seats are held by Democrats. Of the 203 House seats, 110 are
held by Republicans and 91 are held by Democrats. The number of registered voters in
the Commonwealth includes approximately 4 million registered Democrats and
approximately 3 million registered Republicans.” Costa Brief at 3 (footnotes omitted).
4
The Lattanzi, Amadio and Kim appellants adopt and join in the Costa brief, while also
making localized challenges.
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 16
The Costa appellants identify various alleged unnecessary splits and problems in
contiguity and compactness exhibited by the 2012 Final Plan, and assert that the LRC
failed to consider the Holt I opinion, public testimony, and alternate plans presented to
it.5 In addition, according to appellants, the LRC rejected Senator Costa’s proposed
amendment to the plan, which demonstrated how splits of ten counties -- Beaver, Berks,
Bucks, Butler, Cumberland, Chester, Franklin, Warren, Washington and Westmoreland
-- could easily be eliminated, thus reducing the total number of county splits by almost
20 percent while still maintaining population deviation ranges identical to those in the
Republican Caucus Plan, which was the plan actually adopted as the LRC’s 2012 Final
Plan. Costa Brief at 23. The Costa appellants argue that these additional splits are not
necessary, and were included in the LRC maps for no legitimate constitutional reason.
According to the Costa appellants, the LRC acted in furtherance of inappropriate
political objectives, in order to maintain incumbencies, preserve or improve partisan
political performance and to ensure Republican party majority rule in both houses of the
General Assembly, irrespective of the party affiliations and preferences of Pennsylvania
voters.
Appellant Kim joins in the Costa brief for a global challenge, but adds argument
specific to Dauphin, Perry and Cumberland Counties, which, under the LRC’s new map,
are split into three senatorial districts even though Cumberland County’s entire
population could be contained in one. Kim notes that, although the 2012 Final Plan
restores the City of Harrisburg to its historical place in the 15th Senatorial District, a
5
The Costa appellants focus their brief on alleged unnecessary subdivision splits and
provide very little substantive argument regarding contiguity and compactness. They do
argue that the 2012 Final Plan fails to address the need for more compactness of the
35th Senatorial District, which is drawn to extend from Pennsylvania’s southern border to
the northern border of Clearfield County, a distance of 109 miles, and places Bedford
County in the 35th District for the first time. Costa Brief at 26.
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 17
result for which she advocated in Holt I, the new plan “significantly reduces the
importance of Dauphin County’s community interests by also including Perry County,”
and “dilutes the voice of Harrisburg’s voters.” Kim Brief at 2. Kim challenges “the
inclusion of rural Perry County with urban Harrisburg [which] appears to be in deliberate
disregard of the Court’s previously stated guidance and admonition.” Id.
The Vargo appellants challenge the 2012 Final Plan as a whole, adopting the
Holt appellants’ legal analysis with respect to compactness and contiguity requirements.
The Vargo appellants also argue specifically that the plan contains unnecessary splits
for Senate districts in Cumberland, Butler, Huntingdon, Warren, and Washington
Counties, and wards in the City of Pittsburgh, thus diluting the African-American vote
there, and House districts in Montgomery, Allegheny, Dauphin, Delaware, and Bucks
Counties. According to the Vargo appellants, these splits are not absolutely necessary,
and “many are not even arguably or marginally necessary, to achieve any
Constitutionally valid objective.” Vargo Brief at 15. The Vargo appellants assert that the
LRC has provided no explanation for the excessive political subdivision splits, despite
the Holt alternate plan’s easy eradication of those extra splits. The Vargo appellants
claim that there is no reason to expect the LRC will correct these problems in any future
remand, and thus this Court should fashion affirmative relief itself or through
appointment of a master. Id. at 28.
Acting pro se, appellant Baylor challenges the plan as a whole and argues that
the LRC unnecessarily divided counties, otherwise violated constitutional requirements,
and has materially altered the form of the Commonwealth’s government. Baylor asserts
that, as a lifelong resident of Berks County, he has voted in elections for over forty
years, but has never had an opportunity to pick a Berks County resident for the General
Assembly.
Baylor has fashioned an alternate plan that he says does not include
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 18
unnecessary splits, and which he claims demonstrates that the LRC’s 2012 Final Plan
does not meet constitutional requirements.6
Next, the Sabatina appellants, who are state representatives from Philadelphia
and Reading, challenge the 2012 Final Plan as a whole, and also raise more localized
challenges arising out of the configuration of their own House districts: the 170th, 172nd,
173rd and 174th in Philadelphia, and the 126th and 127th in Reading. They argue that
their new districts contain numerous unnecessarily split wards, and are neither compact
nor contiguous, in violation of Section 16 requirements.
The Sabatina appellants
contend that these splits result in absurd district shapes which serve only improper
political considerations, and they have presented an alternate plan for their districts that
avoids this problem.7
6
Baylor further contends that the LRC’s latest plan was promulgated in violation of
Pennsylvania’s open meeting Sunshine Act. The Sunshine Act provides, generally, that
“[o]fficial action and deliberations by a quorum of the members of an agency shall take
place at a meeting open to the public unless closed under section 707 (relating to
exceptions to open meetings), 708 (relating to executive sessions) or 712 (relating to
General Assembly meetings covered).” 65 Pa.C.S. § 704. In his reply brief, apparently
in response to the LRC’s claim that it did not hold any executive sessions in preparing
the 2012 Final Plan, see infra at 32, Baylor withdraws his Sunshine Act claims and
focuses instead on the LRC’s alleged violation of the Constitution’s more general “right
of the people to a free government founded our [sic] authority.” Id. at 7 (citing PA.
CONST. art. I, § 2). Baylor argues that any closed “deliberative sessions” held by the
LRC are void ab initio on the basis of this constitutional right. We do not perceive a
constitutional basis for disapproving the 2012 Final Plan in this shifting argument.
7
According to the Sabatina appellants, Representative Sabatina’s 174th House district
“is clearly an odd shape with an Appendix going up to the 66th Ward,” and includes parts
of four different wards; “getting to these divisions in [Sabatina’s] proposed new district
involves crossing a major four lane highway and circumventing an airport and an
industrial park. The neighborhoods in Philadelphia are in shambles.” Sabatina Brief at
22-23. With regard to Representative Caltagirone’s 127th House district, which
comprises part of the City of Reading, the Sabatina appellants argue that the 2012 Final
Plan makes Reading a “true mess of twisted geography.” Sabatina Brief at 25 &
Appendix at A-57.
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 19
The Schiffer appellants object specifically to the House map insofar as it splits
Haverford Township in Delaware County, arguing that this split is one of many
unnecessary splits in the entire 2012 Final Plan. The Schiffer appellants submitted an
alternate plan to the LRC, which describes all 203 House districts, reduces the number
of township splits in both Delaware and Montgomery Counties, and spares Haverford
Township from division. According to the Schiffer appellants, that alternate plan would
reduce the LRC’s political subdivision splits and shows the LRC’s plan is contrary to law
because Section 16 allows only splits that are absolutely necessary.
The Brown appellants complain that the 2012 Final Plan unnecessarily splits the
155th, 156th and 157th House districts in the municipalities of West Chester and
Phoenixville, in Chester County, and that these splits were effected only for partisan
political purposes, i.e., to remove registered Democrats and the current Democratic
candidate for the 156th District for future elections. According to the Brown appellants,
these splits – and others in the 2012 Final Plan, such as those in Philadelphia County –
also create legislative districts that violate Section 16 requirements of contiguity and
compactness.8 The Brown appellants argue that partisan political considerations should
not defeat clear constitutional provisions.
The Doherty appellants reside in Philadelphia, Montgomery, Bucks, Lehigh and
Fayette Counties, in political subdivisions that they claim were unnecessarily divided by
the LRC’s plan. They provide an alternate plan which they state reduces unnecessary
municipal splits in House districts “by a whopping 90%” and, they claim, the ward splits
can also be reduced by 87%. Doherty Brief at 9-10. The Doherty appellants also claim
that their alternate plan reduces county splits in the Senate by 25% and ward splits by
8
The Brown appellants’ substantive arguments focus on alleged unnecessary
subdivision splits rather than issues of compactness and contiguity.
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 20
85%, which they argue further demonstrates that the LRC’s plan as a whole has political
subdivision splits that are not absolutely necessary, and thus it is contrary to law.
The Cruz appellants, who reside in the City and County of Philadelphia,
challenge the 2012 Final Plan as a whole. Their alternate plan is designed to show that
the LRC’s plan has an unconstitutional impact on Latino and other minority voter
communities, and was adopted in violation of the Sunshine Act, the Voting Rights Act,
and due process requirements. The Cruz appellants argue that the LRC sought “to
frustrate local established political structures,” and could have instead created a
“constitutional plan with political areas respected as compact and contiguous, Latino
and African American minority interests given a fair opportunity and due process and
good faith afforded to all.” Cruz Brief at 9.9 Despite population numbers that should
dictate a different result, the Cruz appellants argue, there is only one Latino state
representative, and no elected Latino state senator, in the entire Commonwealth. The
Cruz appellants claim that the LRC’s plan reflects an underrepresentation of a
recognized political class and thereby constitutes a Voting Rights Act violation.10
9
The Cruz appellants do not make additional substantive arguments about
compactness and contiguity in their brief. They do allege that former Councilman Angel
Ortiz “was not afforded ample opportunity to speak before the LRC.” Cruz Brief at 13.
10
The Voting Rights Act provides, in pertinent part:
§ 1973. Denial or abridgement of right to vote on
account of race or color through voting qualifications or
prerequisites; establishment of violation
(a) No voting qualification or prerequisite to voting or
standard, practice, or procedure shall be imposed or applied
by any State or political subdivision in a manner which
results in a denial or abridgement of the right of any citizen
of the United States to vote on account of race or color, or in
contravention of the guarantees set forth in section
( continued)
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 21
The Shapiro appellants, who join in the arguments presented by the Costa
appellants as to the LRC’s plan as a whole, also provide localized challenges specific to
Montgomery County and other Philadelphia suburbs, to show that the LRC placed
express constitutional requirements beneath partisan political interests in adopting the
2012 Final Plan.
The Shapiro appellants argue that the plan improperly and
unnecessarily fragments Montgomery County into six Senate districts, none of which is
(continued
)
1973b(f)(2) of this title, as provided in subsection (b) of this
section.
(b) A violation of subsection (a) of this section is established
if, based on the totality of circumstances, it is shown that the
political processes leading to nomination or election in the
State or political subdivision are not equally open to
participation by members of a class of citizens protected by
subsection (a) of this section in that its members have less
opportunity than other members of the electorate to
participate in the political process and to elect
representatives of their choice. The extent to which
members of a protected class have been elected to office in
the State or political subdivision is one circumstance which
may be considered: Provided, That nothing in this section
establishes a right to have members of a protected class
elected in numbers equal to their proportion in the
population.
42 U.S.C. § 1973. We note that the Cruz appellants’ arguments based on alleged
Voting Rights Act violations are identical to claims that were made in federal court with
regard to the 2001 district map, which remained in effect after Holt I, but the district
court denied relief. Pileggi v. Aichele, 843 F. Supp. 2d at 597 (“Under these unique
circumstances, we are compelled to conclude that the election should proceed under
the only-existing plan, the 2001 Plan. The granting of a temporary restraining order at
this juncture would make no sense. Clearly, it would not be in the public interest.”). The
Cruz appellants have not provided further record support nor have they developed their
Voting Rights Act argument in the instant appeal challenging the 2012 Final Plan. The
claim therefore fails.
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 22
wholly contained in that county.
In their view, the sole purpose of this obvious
gerrymandering is “to remove Democratic-leaning voters from potentially competitive
suburban districts.” The Shapiro appellants claim that the subdivision splits which
created these artificial districts turn what would and should be “swing” districts into
districts with a comfortable Republican edge. Shapiro Brief at 4, 8. Finally, the Amadio
and Lattanzi appellants simply join the brief and arguments in Costa, without making
any further argument on their own behalf.
C. The Response of the LRC
The LRC responds to all appellants in one omnibus brief. The LRC states that it
went “back to the drawing board” after Holt I and created a redistricting plan that
complies with the constitutional requirements of Section 16. The LRC claims that it has:
created districts that are significantly more compact than the
2011 Plan. It has drastically reduced the number of
subdivision splits. The difference between the 2012 Final
Plan and [appellants’] alternative plans (created without the
need for compromise) is significantly reduced. The 2012
Final Plan respects communities of interest, particularly
county seats – unifying all but one (unless mathematically
impossible). It fully complies with the Voting Rights Act and,
in doing so, gives full voice to the growing Latino population
of this Commonwealth. It preserves the cores of existing
districts fostering continuity of representation and not
affecting the [current] partisan composition of the legislature.
LRC Brief at 1.
In seeking to explain the importance of compromise and political factors in the
process of creating a new district map, the LRC quotes from the historical record of the
1967-68 Constitutional Convention, including a statement from one delegate during
debate regarding proposed schemes for redistricting:
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 23
The perfect reapportionment plan is impossible to draft. For
this reason, the various qualities which should be considered
in drafting a reapportionment plan cannot be made absolute
constitutional requirements. Various weights and priorities
can be given to these qualities, however, as long as freedom
to deviate from them is permitted when the various
requirements of a good plan are in conflict. The fact that
frequent deviation from any particular requirement may be
required should not, however, cause the omission of the
requirement if it is otherwise a sound requirement of good
apportionment. . . . It became obvious, upon actually working
on an apportionment plan, that the final result, even in the
best plan, will fall far short of perfection. . . . It becomes
necessary, therefore, at times, to sacrifice the best possible
plan in one area in order to avoid the worst possible one in
another some distance away.
LRC Brief at 6 (quoting Delegate Jerry Powell, Daily Journals of the Pennsylvania
Constitutional Convention of 1967-1968, Volume 1, No. 38 at 532 (February 7, 1968)).
Citing to the same historical source, the LRC further notes the intention behind having
partisan leaders from the General Assembly centrally involved in the reapportionment
process: “The use of the partisan leaders of each [legislative] chamber was intended to
serve both as an opportunity to harness the voices of all legislators of both parties
through their leaders, and as a check and balance.” Id.
As a result of this recognized need for legislative involvement, compromise and
balance, argues the LRC, it must not be limited to consideration of the specific objective
criteria listed in Section 16, but rather, the LRC must also be free to consider more
subjective factors which it has the experience and discretion to apply. The LRC argues
that its authority to consider these additional factors is constitutionally conferred, as it is
inherent in the design of the commission described in Section 17. Specifically, the LRC
insists that it is empowered to take into account existing or historical districts or
communities of interest, to preserve the cores of existing legislative districts in order to
ensure a continuity of representation which voters have chosen in the past (i.e., to
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 24
enhance incumbents’ electability), as well as to address majority/minority districts within
the bounds of the Voting Rights Act. The LRC argues that it must include these political
considerations
in
its
deliberations,
just
as
it
must
consider
compactness,
contiguousness, and the number and location of subdivision splits, while it also seeks
districts as nearly equal in population as possible.
The LRC claims that the population deviations of less than 10% in the 2012 Final
Plan are well within the recalibrated latitude envisioned in Holt I, see, e.g., 38 A.3d at
761, and the federal constitutional limits cited in Voinovich v. Quilter, 507 U.S. 146, 161
(1993). In Voinovich, the U.S. Supreme Court quoted from Brown v. Thomson, 462
U.S. 835, 842-843 (1983), as follows: “[M]inor deviations from mathematical equality
among state legislative districts are insufficient to make out a prima facie case of
invidious discrimination under the Fourteenth Amendment so as to require justification
by the State.
Our decisions have established, as a general matter, that an
apportionment plan with a maximum population deviation under 10% falls within this
category of minor deviations. A plan with larger disparities in population, however,
creates a prima facie case of discrimination and therefore must be justified by the
State.” 507 U.S. at 161 (internal quotation marks and citations omitted).
The LRC states that its 2012 Final Plan has achieved a total range of population
deviation of 7.88% in the House and 7.96% in the Senate, and no legislative district
deviates more than 3.98% from the “ideal” district size.11 LRC Brief at 24. The LRC
11
The “ideal” district size is determined by dividing the Commonwealth’s population into
203 House and 50 Senate districts. PA. CONST. art. II § 16. According to the LRC,
based on the 2010 census data, the “ideal House district has a population of 62,573.
The largest district [in the 2012 Final Plan] has a population of 65,036, the smallest has
60,110. The ideal Senate district has a population of 254,048. The largest [in the 2012
Final Plan] has 264,160 and the smallest has 243,946.” LRC Brief at 24 n.6. No
appellant disputes these figures.
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 25
argues that the uneven distribution of population throughout the Commonwealth makes
it “absolutely necessary” to divide some counties, municipalities and wards; it asserts
that the Section 16 requirement that there be no political subdivision splits unless
“absolutely necessary” cannot be “an inflexible, mathematical standard.” Rather, “[i]t
must be viewed under the realities of the reapportionment process,” taking into account
other goals of redistricting, such as preserving communities of interest and “continuity of
representation,” so that the decennial process causes “as little upheaval and uncertainty
as possible.” LRC Brief at 11-14. The LRC claims that it received comments from
“scores of citizens” who were satisfied with their current representatives and urged the
LRC to preserve the general boundaries of their districts. Id. at 15.
More pertinently, the LRC argues that none of the appellants have met the
burden of establishing that the 2012 Final Plan, as a whole, is contrary to law. With
regard to alternative plans presented by various appellants, the LRC complains that
these plans were not subject to public review or comment -- they were “completely
unvetted” -- and that the various appellants drew the plans without being subject to the
various political considerations that the LRC believes must be taken into account when
adopting a plan, such as respect for communities of interest, continuity of
representation, and the Voting Rights Act.
LRC Brief at 21.
Repeating its failed
argument from Holt I, the LRC insists that this Court should not even include alternate
plans in its scope of review, though it concedes that the scope of review is properly
defined by the Court, and Holt I made clear that alternate plans could be offered as
evidence that an approved plan was contrary to law. Although the LRC acknowledges
that this Court’s prior cases approving earlier reapportionment plans do not serve as a
“constitutional preclearance,” the LRC argues that such prior approved plans should be
considered additional “evidence” of a current plan’s compliance with the law. LRC Brief
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 26
at 22. In any event, the LRC contends that the 2012 Final Plan should be affirmed
under the scope and standard of review articulated and explained in Holt I. According
to the LRC, even when viewed in the light of competing alternate plans, its 2012 Final
Plan fulfills the mandates of Holt I and complies with all constitutional, legal and
prudential reapportionment factors, and also significantly reduces the number of
subdivision splits from the number contained in the unconstitutional 2011 Final Plan.
Moreover, the LRC argues, the Section 16 language regarding political
subdivision splits that are not “absolutely necessary” has never been taken as an
inflexible, mathematical standard, and Holt I did not set “firm parameters” for its limits.
LRC Brief at 25 (quoting 38 A.3d at 757). Nevertheless, the LRC argues that, due to
population distribution in Pennsylvania, it is indeed mathematically necessary to split 15
counties and two municipalities (Philadelphia and Pittsburgh) in establishing Senate
districts. Moreover, the LRC explains, the 2012 map for the Senate divides only ten
counties which have less than the population of an ideal district, and these splits are
justified by other factors. The LRC emphasizes that its map for the House likewise does
not split any municipalities unless mathematically necessary, and claims that it divides
only nine counties and 51 municipalities not mathematically required by the dictates of
population. LRC Brief at 27-32. Moreover, the LRC insists that the districts created by
the 2012 Final Plan are compact and contiguous in a way that the unconstitutional 2011
plan was not, and particularly, Senate Districts 3, 15 and 35, which were specifically
called into question in Holt I, have been redrawn. See Holt I, 38 A.3d at 757. The LRC
concedes that there remain strange district shapes under the 2012 map but explains
that these have been made necessary in many places by geographical features such as
mountains, rivers, valleys and forests, and in some instances, by a few largely
uninhabited areas.
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 27
According to the LRC, only one county seat, Pottsville, Schuylkill County, which
could mathematically have been united, remains divided in the 2012 Final Plan, and this
division for purposes of the House is only because both the Mayor and the City Council
of Pottsville specifically requested that it remain divided between the 123rd and 125th
House districts. The LRC further argues that it has “labored under the proposition that,
as much as population permits, the choice of the people in their elected officials should
not be vitiated. As such, where possible, the [LRC] used cores of existing districts as
the starting point of its reapportionment efforts. . . . to respect the choice of voters, and
to foster the efficiency that stems from continuity of representation.” LRC Brief at 40.12
12
Representative Michael Turzai and Senator Dominic Pileggi, who both are members
of the LRC by virtue of their positions as majority leaders of their respective chambers in
the Pennsylvania General Assembly, have filed separate amicus curiae briefs in support
of the LRC. There is some redundancy in these filings by members of the LRC, since
the LRC as a body has zealously defended the plan in a separate 96-page brief filed by
the LRC’s counsel. The commissioners are also parties, and parties do not typically file
amicus briefs. See Pa.R.A.P. 531 (anyone interested in questions involved in appeal,
“although not a party,” may file brief amicus curiae). Commissioner Turzai explains that
he filed his own brief based on his “position as a member of the Commission, with his
resultant interest in defending the 2012 Final Plan, and his specialized knowledge in this
area.” Turzai Brief at 7. Commissioner Pileggi states his interest as amicus arises out
of his position as a citizen, registered voter, State Senator, Majority Leader for the State
Senate, and as a member of the LRC. Pileggi Brief at 1. The amicus briefs, in any
event, largely echo points ably forwarded by the LRC. The Turzai brief goes further and
misapprehends certain aspects of Holt I, see Brief at 8 (claiming that, in Holt I, “this
Court for the first time held that the 2011 Final Plan was too focused on the federal
standard”), and seeks to relitigate other issues resolved in Holt I, such as the scope of
review and the level of judicial deference in reviewing any final plan. To the extent the
brief would raise issues not implicated in the presentations of the parties, we of course
will not reach those issues. See Commonwealth v. Cotto, 753 A.2d 217, 224 n.6 (Pa.
2000) (“An amicus curiae is not a party and cannot raise issues that have not been
preserved by the parties.”); Pa.R.A.P. 531(a) (interested party may file an amicus curiae
brief concerning those questions before appellate court).
Accord Stilp v.
Commonwealth, 905 A.2d 918, 928 n.14 (Pa. 2006) (issue raised only by amicus and
not by parties not before Court).
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 28
The LRC also argues that the Pennsylvania Constitution does not define
contiguity or compactness as related to legislative districts, but that this Court has
defined a contiguous district as “one in which a person can go from any point within the
district to any other point (within the district) without leaving the district, or one in which
no part of the district is wholly physically separate from any other part.” LRC Brief at 10
(quoting Commonwealth ex rel. Specter v. Levin, 293 A.2d 15, 23 (Pa. 1972)). The
LRC notes that, in the 2012 Final Plan, “the few districts with non-contiguous
irregularities have a combined population of 68,” and that such districts “have been part
of nearly every Pennsylvania reapportionment.” Id. at 37. With regard to compactness,
the LRC states it is a difficult concept to quantify where the Commonwealth’s population
is spread unevenly across a large and diverse geography, such that balancing the
factors of population equality and integrity of political subdivisions necessitates “a
certain degree of unavoidable non-compactness in any reapportionment scheme.” Id.
at 10 (quoting Specter, 293 A.2d at 23).
The LRC cautions generally that its
redistricting map should not fail simply because “the shape of a particular district is not
aesthetically pleasing.” Id.
With respect to the Holt appeal specifically, the LRC argues as follows. First, the
LRC criticizes the Holt appellants’ method of counting political subdivision splits,
because the Holt appellants include what they term “fractures,” thus over-counting the
number of counties, municipalities and wards that are divided. In any event, the LRC
argues that the mere fact that the appellants created a plan with fewer raw splits – a
point the LRC does not dispute -- does not signify that the 2012 Final Plan is contrary to
law because appellants did not have to concern themselves with important political
considerations, public comment or the need to reach a majority consensus. Moreover,
the LRC maintains, the difference between the number of splits in the current Holt plan
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 29
and the LRC’s 2012 Final Plan is much less substantial than the discrepancy at issue in
Holt I’s review of the 2011 Final Plan, which the Court struck down. According to the
LRC, the difference between the LRC’s 2012 Final Plan and the Holt plan is “negligible”
and “insignificant.” LRC Brief at 44. And, the LRC argues, when viewed in light of the
total number of counties, municipalities and wards in Pennsylvania, the number of splits
in the 2012 Final Plan is “miniscule.” Id. at 47. The LRC argues that alternate plans will
always have fewer splits than plans devised by the LRC, and that fact “is a direct and
inescapable function of the constitutional composition” of the LRC, and the process of
compromise that Section 17 is designed to foster. Id. at 49-51.
The LRC further notes that a comparison of the 2012 Final Plan with earlier plans
shows it is one of the strongest ever produced, with comparatively fewer subdivision
splits in both Senate and House districts, and these older plans should be viewed as
evidence to the same extent the Holt plan – or any other alternate plan – is so viewed.
Furthermore, according to the LRC, adoption of the Holt plan would throw the
Commonwealth into electoral chaos, and would create unnecessarily radical
reapportionment. The Holt plan, according to the LRC, draws 42 House incumbents
into legislative districts with another incumbent, meaning it would result in the loss of at
least 21 current elected representatives as a result of redistricting alone, rather than as
a result of choices made by voters. LRC Brief at 59-60. Finally, the LRC argues that
the Holt alternate plan raises various Voting Rights Acts concerns.
With regard to the Holt appellants’ arguments regarding contiguousness, the
LRC focuses on “geographical anomalies” that it says makes any non-contiguous
districts found in the 2012 Final Plan unavoidable. The LRC states that it “chose to
avoid creating new splits and dividing citizens and communities of interest for the sole
purpose of unifying a handful of nearly uninhabited geographic quirks.” LRC Brief at 55-
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 30
56. And, with regard to the Holt appellants’ challenge to the compactness of districts in
the 2012 Final Plan, the LRC states that the Polsby and Popper method espoused by
the Holt appellants is just “one of several privately produced mathematical formulae
intended to measure compactness in some rigid, mechanical manner,” and that this
method is not binding on the LRC or this Court. In fact, the LRC argues, another
method of measuring compactness – e.g., the “Reock Test” – shows that the Holt
alternate plan and the 2012 Final Plan are essentially indistinguishable, and that given
the geographic anomalies of the Commonwealth, the 2012 Final Plan is sufficiently
compact. Id. at 57-58.
Likewise, the LRC argues that the Costa alternate plan does not prove that the
2012 Final Plan is contrary to law, but merely that the LRC’s plan does not serve the
competing political interests of the Costa appellants. Moreover, in the LRC’s opinion,
the Costa plan makes only minor reductions in the number of county splits, and only on
the Senate side. Furthermore, the LRC notes, the 2012 Final Plan resolves issues
relating to Harrisburg by replacing it in the 15th Senatorial District, and reducing the
number of Senate Districts in Dauphin County to two, the mathematical minimum it may
have.13
According to the LRC, the Costa appellants, and appellant Kim, continue to
object to this placement because of the way the 15th District is now configured, but
these specific concerns do not demonstrate that the 2012 Final Plan is contrary to law.
The LRC adds that the 2012 Final Plan also preserves the 45th Senate District in
13
The configuration of Senate District 15 in the 2011 Final Plan – described as an “iron
cross” shape -- was one of the specific compactness problems noted in Holt I. See 38
A.3d at 757 (Senate District 15 “facially problematic” in terms of compactness). The
LRC does not respond separately to the Costa appellants’ claims regarding
compactness of the 35th Senatorial District.
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 31
Allegheny County, a goal sought by Senator Costa, which demonstrates that the LRC’s
map has a bipartisan aspect.
Next, the LRC rejects the alternative plan presented by the Doherty appellants,
claiming that it is rife with mathematical errors, lacks legal descriptions, and also,
because those appellants did not present the alternate plan to the LRC prior to this
appeal, and thus, they have waived any right to present it now.14 In any event, the LRC
argues that the Doherty alternate plan does not establish that the 2012 Final Plan is
contrary to law. Similarly, the LRC argues that the Vargo appellants have based their
appeal on an alternate plan nearly identical to that of the Holt appellants, and as the
Holt plan does not prove that the 2012 Final Plan is contrary to law, the Vargo plan does
not provide such proof either.
The LRC next addresses the procedural and substantive claims of pro se
appellant Baylor. The LRC argues first that Baylor’s claim of Sunshine Act violations is
meritless; the LRC asserts it never conducted material deliberations at closed
“executive sessions,” and in fact, “went to great length to avoid even the appearance of
impropriety by ensuring that there was never a time when a quorum of Commissioners .
. . . were even in the same room together other than a properly noticed meeting.” LRC
Brief at 79.15
On Baylor’s substantive claims, the LRC states that Baylor has not
14
The LRC’s argument on this point is somewhat undermined by its statement later in
its brief that “the Commission does not believe that there is a per se requirement that an
alternative plan is a necessary prerequisite to filing an appeal.” LRC Brief at 81.
15
As we have noted in our earlier description of Baylor’s argument, he withdrew and
recast his Sunshine Act claim. See supra note 6.
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 32
preserved his right to present an alternate plan, has not provided proper legal
descriptions, and has not shown that the 2012 Final Plan is contrary to law.16
The LRC also rejects the Sabatina appeal, claiming it focuses on localized
challenges to ward splits in the appellants’ Reading and Philadelphia districts, rather
than on the 2012 Final Plan as a whole, and therefore should be dismissed. In any
event, argues the LRC, the Sabatina appeal does not establish that the 2012 Final Plan
is contrary to law.17 Similarly, the LRC argues that the Schiffer appeal is aimed only at
the 2012 Final Plan’s division of Haverford Township, Delaware County, House districts,
and thus is not a proper challenge to the plan as a whole. In any event, the alternate
plan presented by the Schiffer appellants reduces the number of splits in the LRC’s plan
only minimally, and does not demonstrate a constitutional violation.
The Brown
appellants also make localized challenges to a division of municipalities, according to
the LRC, and any arguments against the plan as a whole are pro forma only. The LRC
insists that “issues of substantially equal population, geography and demography
require the division of municipalities.” LRC Brief at 87 (emphasis in original). The LRC
further argues that in determining which municipalities to divide, it must make
discretionary value judgments. Id. (citing In re 1981 Plan, 442 A.2d at 668 (drawing
district lines necessarily involves value judgments)). In addition, the LRC asserts that
the Schiffer appellants’ claim of a diluted minority vote is factually without merit.
16
In reply, Baylor defends his submissions by explaining the limits in producing more
complete maps engendered by the high cost of purchasing computer programs and
reprinting large format maps. Baylor argues his summary maps are sufficient
substitutes for the voluminous data involved here. Baylor Reply Brief at 6 (citing Pa.
R.E. 1006).
17
The LRC does not separately respond to the Sabatina appellants’ additional
arguments regarding compactness and contiguity.
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 33
The LRC rejects the Cruz appellants’ challenge as well, reiterating its position
that it never held an executive session, and that all aspects of the reapportionment
process were open and transparent. The LRC insists that appellant Angel Ortiz was
permitted to testify within the time limits established for its public hearings, and the 2012
Final Plan recognizes and respects the growth of the Latino population in Pennsylvania;
however, the LRC states that there are still not enough Latinos in any single compact
area to constitute the majority of a Senate district.
The LRC also argues that the
Shapiro appellants focus on Montgomery County, rather than the redistricting map as a
whole, and their claims are therefore not sufficient to prove that the 2012 Final Plan is
contrary to law. In any event, the LRC states, when viewed as a whole, the divisions in
Montgomery County are reasonable considering the dense population of the region and
the county’s vastly varied constituent municipalities. With regard to the Amadio appeal,
the LRC points out that the appellants focus on the split of Beaver County, rather than
challenging the 2012 Final Plan as a whole. In any event, states the LRC, a greater
portion of Beaver County is unified in the 2012 Final Plan than in the earlier map, and
the Senate plan splits the county only one time over its mathematical minimum. The
LRC similarly rejects the Lattanzi appeal, narrowly focused as it is on the movement of
the City of Clairton, in Allegheny County.
III.
Discussion
A. General Considerations Regarding Review Standards and the Role of
“Political” Factors
As we have stated, our task in resolving the instant challenges is to determine
whether the LRC’s 2012 Final Plan is a map of compact and contiguous territory that
“satisfies the constitutional requirement that the districts, in both houses of the state
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 34
legislature, are as nearly of equal population as is practicable and that no political
subdivision shall be divided in forming such districts unless absolutely necessary. In
conducting this review, we must examine the final plan as a whole.”18 Albert, 790 A.2d
at 995; PA. CONST. art. II § 16. We keep in mind that “‘to prevail in their challenge to the
final reapportionment plan, appellants have the burden of establishing not . . . that there
exists an alternative plan which is ‘preferable’ or ‘better,’ but rather that the final plan
filed by the [LRC] fails to meet constitutional requirements.’” Albert, 790 A.2d at 995
(quoting In re 1981 Plan, 442 A.2d at 665).
The LRC’s 2012 Final Plan is not entitled to any presumption of constitutionality.
Holt I, 38 A.3d at 734. As the Holt I Court stressed last year, “[t]here is no basis for
indulging a presumption of constitutionality in these circumstances. The most that can
be said is that the Final Plan enjoys the same status as any action or decision where
the challenging party bears the burden; and here, the burden is upon appellants to show
that the plan is contrary to law.” Id. at 735.
Preliminarily, we note that the LRC asks this Court to reconsider a central
premise of Holt I, i.e., our holding that the scope of review in redistricting appeals
properly includes alternate plans submitted by the challengers, including plans created
by private citizens. LRC Brief at 20-22. Notably, as the Holt appellants have stressed,
the LRC did not file an application for reconsideration of this or any other issue in Holt I,
and so, it is questionable whether this argument is available. See Pa.R.A.P. 2542(a)(1)
18
Although a few appellants have limited their challenges to their own districts and
neighboring areas, we have focused our review on the global challenges presented by
Holt, Costa and others. In addition, the LRC argues that the Doherty appellants and
appellant Baylor have waived their claims on appeal because they did not submit
alternate plans to the LRC in advance of the appeals. For decisional purposes, we will
assume the global challenges made in the latter two appeals are not waived because, in
any event, we determine that the better-developed global challenges fail.
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 35
(application for reconsideration must be filed within 14 days after entry of judgment or
other order). On the other hand, we recognize that the litigation here, involving a new
Final Plan, arguably is sufficiently distinct that the LRC’s position resembles a request to
revisit binding precedent forwarded in a circumstance of unrelated cases. In any event,
on the merits of the claim, and aside from obvious concerns of stare decisis, the LRC
has offered no persuasive reason to reconsider, much less to overrule, Holt I.
As the LRC concedes, the scope of review was specifically disputed in Holt I and
the Court went to great lengths to explain the grounds for its determination, including a
meticulous examination of
our prior redistricting precedent, and the LRC’s
misapprehension of that precedent. 38 A.3d at 727-38. With respect to our specific
holding that challengers to a final plan may proffer alternate plans in an attempt to
discharge their burden of proof, five Justices were in agreement, see id. at 762 (Saylor,
J., concurring and dissenting), and no Justice expressed any disagreement. See id. at
762-63 (Eakin, J., concurring and dissenting) (partially joining); id. at 763-64 (Orie
Melvin, J., dissenting).
In explaining this holding, we noted, inter alia, that “legal
challenges in general, and appellate challenges in particular, commonly involve an
offering of alternatives. It is not effective advocacy to simply declare that a trial judge’s
ruling was erroneous; the good advocate addresses what the judge should have done
instead.” 38 A.3d at 730-31. We also credited, at least in part, the Holt I appellants’
argument that the LRC’s position was tantamount to saying that a Final Plan was
unreviewable:
We are also not persuaded by the LRC's claim that its
existence and task requires that we deem alternative plans
to be irrelevant and beyond our scope of review. The
Constitution confers upon aggrieved citizens a right of
appeal, measured by substantive standards specified in the
charter. Such appeals must be meaningful, not illusory. The
importance and difficulty of the LRC's task—a common
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 36
burden in government—does not insulate its undertaking
from the normal avenues of legal challenge, including
arguments premised upon alternatives.
Id. at 733.19
The LRC’s current criticisms of such alternate plans – i.e., that they are not
“vetted,” that they are not produced under the pressure of having to generate a
19
The LRC also argues that our articulation of the scope of review was based in part on
a “factually inaccurate representation” made by Holt respecting what was before the
Court in In re 1981 Plan (the point being whether that court considered a global
alternate plan). In forwarding the argument, the LRC goes outside the reported decision
and discussion in In re 1981 Plan, looking to the pleadings. The LRC then notes that
the challenger in 118 MM 1981 produced a statewide alternate plan. Holt responds by
correctly noting, among other points, that reliance on the petitions and briefs filed in In
re 1981 Plan “is misplaced, because those materials cannot supersede the description
of the challenges provided by the Court” in its actual decision. And, indeed, our
rejection of the LRC’s position in Holt I was premised upon the content of the 1981
decision, since the LRC had claimed that the reported case affirmatively established a
crabbed scope of review.
The LRC’s claim of factual misrepresentation is also persuasively rebutted by Holt:
The Court correctly recognized that Holt I was its first
opportunity to consider an alternative redistricting plan as
evidence that the LRC's plan created unnecessary
subdivision splits. Petitioners in Holt I presented that issue
by basing their exceptions on an alternative plan which, for
the first time, accepted the LRC's maximum population
deviation and nonetheless achieved dramatic reductions in
the number of subdivision splits. By contrast, In re 1981
Plan considered, and rejected, a different theory: that the
LRC should have reduced the number of subdivision splits
by adopting a higher deviation from population equality.
442 A.2d at 666. The Court in In re 1981 Plan had no
opportunity to consider, and was not presented with, an
alternative plan which provided an evidentiary basis for
challenging the overall number of subdivisions splits by
themselves.
Holt Reply Brief in Opposition at 2-3 (emphases original).
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 37
consensus, etc. -- are matters that go to the comparative value or weight that should be
accorded those plans in determining whether the appellants have met their burden, and
not to their relevance.
Furthermore, the LRC’s own presentation on this appeal
corroborates the relevance. The LRC has engaged aspects of the various alternate
plans, and in the process has made legitimate points in criticism.
The points in
distinction make for a better assessment of the legality of the Final Plan, which remains
the primary focus of the appeals. And, to reiterate what we explained in Holt I, it simply
cannot be that the right to challenge specifically conferred by the Constitution is illusory.
Accordingly, we reaffirm our explication of the scope of review in Holt I.20
We also reject, as we did in Holt I, the LRC’s argument that its Final Plan should
be automatically afforded special deference over challengers’ plans, based on the
“constitutional commission system,” or the “practical difficulty” of assessing alternatives
created by private citizens.
LRC Brief at 21.
As we made clear in Holt I, the
Constitution simply “does not dictate any form of deference to the LRC, does not
establish any special presumption that the LRC’s work product is constitutional, and it
also places no qualifiers on this Court’s scope of review.” 38 A.3d at 730. See also id.
at 733-34, 753 n.31. Of course, this is not to deny that the primary focus is upon the
Final Plan, and not upon alternate plans. Thus, although the Court in Holt I concluded
20
It is also worth noting that the challengers have scrupulously adhered to this Court’s
teachings respecting the relevance of alternate plans. Thus, the alternate plans
proffered do not purport to attack the LRC’s plan by, for example, producing an
alternate plan involving a greater range of deviation in population equality, coming
closer to the ten percent parameter that all seem to agree would be permissible under
federal law. Obviously, a greater deviation in population would make it easier to avoid
political subdivision splits. Instead, the Holt appellants, for example, employed slightly
smaller ranges of deviation than those employed by the LRC and, starting from that
benchmark, claim that the number of subdivision splits in the 2012 Final Plan are not
absolutely necessary.
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 38
that Holt’s alternate plan there “overwhelmingly” showed that the 2011 Final Plan was
infirm, the Court also made clear that the LRC, upon remand, was not obliged to adopt,
or even to start with, that alternate plan in going about its task to devise a constitutional
map. Id. at 756-57. In addition, our articulation of the review paradigm in Holt I, as well
as our holding that the 2011 Final Plan was contrary to law, did not deny the difficulty of
the LRC’s task or the considerable discretionary authority reposed in the LRC. See 38
A.3d at 735 n.22 (“Our holding that the Final Plan is not entitled to a presumption of
constitutionality does nothing to diminish the LRC's overall discretionary authority to
redistrict the Commonwealth. As we make clear infra, our decision in this case does not
command the LRC to devise particular benchmarks in terms of the number of
subdivision splits, the extent of deviation in population equality, or the parameters of
compact and contiguous districts. This paradigm recognizes the difficulty in the LRC's
task and still reposes considerable discretion in its judgment.”).21
In the alternative, the LRC has accepted the governing review standard here,
and has presented more developed arguments responding to the specific challenges,
and alternate plans, that have been forwarded in this matter. This litigation posture
stands in contrast to Holt I, where the LRC had “premised its central defense against
these global challenges upon its position on the judicial review points,” did not as
21
The separate expressions by Justices Saylor and Eakin also emphasized the difficulty
of the LRC’s task, the practical constraints upon judicial review, as well as the greater
deference on review that those Justices would have afforded. See Holt I, 38 A.3d at
762 (Saylor, J., concurring and dissenting) (“The allocation of the burdens and the
affordance of deference in the judicial review reflect the complex nature of a
commission’s task and the constraints inherent in its oversight.”); id. at 762-63 (Eakin,
J., concurring and dissenting) (noting “[t]he process of redistricting is complex beyond
words” and advocating for “significant deference” to LRC). The majority expression in
Holt I, however, is now the governing law.
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 39
directly engage the alternate plans, and did not offer pointed rebuttals to the powerful
showing that Holt’s alternate plan made about the constitutionality of the 2011 Final
Plan.
Holt I, 38 A.3d at 752.
The resulting elucidation by the LRC, including its
explication of certain legitimate additional considerations under which it labors, has
proved helpful to our decisional task in this appeal.22
Before turning to the LRC’s more targeted responses, we will address one
remaining significant point implicating our review. As we have noted, the LRC argues
that the requirements expressly set forth in Section 16 are not the only factors it may
properly take into account when redistricting the Commonwealth. Specifically, the LRC
argues that Section 16’s substantive proscriptions concerning population equality,
compactness, contiguity and integrity of political subdivisions are affected by a
22
Again, we recognize that there was division on the Court in Holt I concerning the
absence of more targeted responses from the LRC to the alternate plans offered in
those appeals, plans offered to prove the constitutional infirmity of the 2011 Final Plan.
The Court’s view included the recognition that the LRC “has had a full opportunity to
offer neutral explanations of what were proven to be vast numbers of unnecessary splits
of political subdivision, and failed to do so.” 38 A.3d at 754 n.34. In contrast, Justice
Saylor voiced a more general concern that the “limited perspective concerning the
difficulties encountered by the Commission in crafting a redistricting plan” made it
difficult to so fault the LRC’s presentation, id. at 762 (Saylor, J., concurring and
dissenting), and Justice Eakin expressed the view that, “[a]n inherent problem in
reviewing challenges to the ultimate plan is that no mechanism exists for the LRC to
justify or explain its considerations or decisions.” Id. at 763 (Eakin, J., concurring and
dissenting).
Our present commentary on the contrasting litigation posture adopted by the LRC in
these appeals is not intended as a criticism of the LRC or its distinguished counsel. The
positions taken on the prior appeals, while narrower than here, were focused and well
articulated, even though the characterizations proved to be unsupported by our
precedent. The point in distinction offered in text merely recognizes the helpfulness of
the fuller and more pointed response, including a more specific engagement with the
challenges proffered, that have been articulated, in the alternative, by the LRC in these
appeals.
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 40
“secondary set of reapportionment factors” that derive from Section 17, the provision
that establishes the composition of the LRC and procedures to govern its task. PA.
CONST. art. II, §§ 16, 17. The LRC maintains that Section 16’s substantive constraints
must be viewed in pari materia with Section 17.
Appropriating the “absolutely
necessary” language from Section 16, the LRC then describes the interplay as follows:
When reviewing a reapportionment plan’s Section 16
factors in pari materia with the provisions of Section 17, it
must be recognized that balance and compromise are
necessary components of any reapportionment plan. It is
absolutely necessary that the Commonwealth be
reapportioned on a decennial basis. . . . [It] is absolutely
necessary that a Commission comprised mainly of political
floor leaders of both chambers be the body to effectuate that
reapportionment.
It is absolutely necessary that the
Commission accomplish its work in a set time-frame. It is
absolutely necessary that at least three Commissioners vote
for a reapportionment plan and that the plan withstand public
comment and the right of appeal.
These absolute
necessities under Article II, § 17 cannot be discounted when
reviewing a plan’s constitutionality – particularly in light of a
challenge from an alternative plan created without the
requirements of Article II, § 17.
LRC Brief at 12-13. In fact, the LRC’s importation of “absolutes” into Section 17 is
overstated. Indeed, Section 17(h) specifically contemplates a circumstance where the
LRC fails in its task: “If a preliminary, revised or final reapportionment plan is not filed
by the commission within the time prescribed by this section, unless the time be
extended by the Supreme Court for cause shown, the Supreme Court shall immediately
proceed on its own motion to reapportion the Commonwealth.” In short, Section 17,
unlike Section 16, does not speak in absolute terms, much less in absolutes that dilute
the substantive constraints in Section 16. Of course, the LRC should deem it imperative
to make a good faith effort to timely accomplish its task of adopting a constitutional
reapportionment plan.
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 41
The LRC goes further in its description of Section 17’s supposed absolute effect,
claiming that the largely-legislative composition of the LRC dictates “other factors which
are inherent in the Commission’s role in crafting a reapportionment plan,” factors that
the LRC believes “comprise legitimate, and necessary considerations for the
Commission in undertaking its constitutional role.” The LRC identifies what it describes
as this “second layer” of “inherent” constitutional considerations as comprising: (a) a
respect for communities of interest, (b) a respect for continuity of representation, and (c)
a respect for the constraints of the federal Voting Rights Act. It cannot be disputed that
the LRC has to pay heed to the third factor; but, this is a fact of federal law and the
Supremacy Clause, U.S. CONST. art. VI, cl. 2, not a command inherent in Section 17’s
description of the composition of the LRC. The LRC’s description of the other two
factors warrants further examination.
The LRC says that Holt I “highlighted the concept of ‘communities of interest’”
when, in our discussion of the challenges in that case which focused only on “particular”
political subdivision splits, we stated that “we trust that the LRC, in formulating its new
plan, and necessarily reducing the political subdivision splits and fractures, will be
attentive to the concerns of historically unified subdivisions, such as County seats.”
LRC Brief at 13 (citing Holt I, 38 A.3d at 758). Obviously, the equivalence suggested
by the LRC is not exact: a unified political subdivision, such as a county seat, which
Holt I spoke of, is a narrower concept than a “community of interest,” and it is also an
interest specifically protected by Section 16. This is not to say that we discount the
consideration of perceived communities of interest; we will take up that point more
directly in our discussion infra.
With respect to the “continuity of representation” interest that it says is
constitutionally commanded, the LRC states that “[t]here is a legitimate interest in,
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 42
wherever practical in light of the other reapportionment factors, maintaining the
continuity of representation by keeping in place the cores of existing legislative districts.”
The LRC then states that the U.S. Supreme Court has observed that “‘preserving the
cores of prior districts and avoiding contests between incumbents’ [sic] are legitimate
redistricting considerations.” LRC Brief at 14 (quoting Karcher v. Daggett, 462 U.S.
725, 740 (1983)). We note that Karcher was a case involving federal congressional
redistricting in New Jersey, and the Court was not speaking of “inherent” constitutional
considerations under Pennsylvania state law, or under any state constitution for that
matter. Rather, the plan at issue in Karcher was adopted by the state legislature (just
as federal redistricting in Pennsylvania is conducted legislatively, and not by
commission), and the Court made clear it was speaking only of state legislative policies,
not constitutional considerations:
“Any number of consistently applied legislative
policies might justify some variance, including, for instance, making districts compact,
respecting municipal boundaries, preserving the cores of prior districts, and avoiding
contests between incumbent Representatives.”
462 U.S. at 740.
Karcher is not
authority for the notion that this interest is of Pennsylvania constitutional dimension, on
a par with the command to respect political subdivisions.
Furthermore, the notion that the Constitution independently, and tacitly,
commands special respect for prior districting plans or incumbencies can be a
mischievous one. The Constitution directs that the LRC will be comprised of the four
partisan leaders of the General Assembly, with an agreed-upon, or Court-designated,
fifth member as chair.
Redistricting certainly requires choices and line-drawing,
decisions which may affect the existing membership, and certainly will affect the future
composition of the General Assembly. At least from the perspective of the legislative
members of the LRC, the task is inherently political: the legislative members represent
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 43
the interests of their caucuses and the shared interests of the General Assembly as a
whole. Naturally, political parties seek to protect their own incumbent seats, and it is
perhaps no less natural that one or another party might go further and seek to press a
perceived partisan advantage.
See Holt I, 38 A.3d at 745 (“redistricting has an
inevitably legislative, and therefore an inevitably political, element; but the constitutional
commands and restrictions on the process [in Section 16] exist precisely as a brake on
the most overt of potential excesses and abuse.”). In an instance where there is a lack
of bipartisan cooperation among legislative members, the presence of the fifth member
should ensure that an agreement can be reached, and should serve as a brake upon
the most excessive of purely partisan strivings. See Specter, 293 A.2d at 17 (“[E]qual
representation on the Commission provided to the majority and minority members of
each house precludes the reapportionment process from being unfairly dominated by
the party in power at the moment of apportionment. In addition, the provision for a
chairman who can act as a ‘tiebreaker’ eliminates the possibility of a legislative
deadlock[.]”).23
As we understand the constitutional commands, there is nothing at all to prevent
a particular reapportionment commission from considering political factors, including the
preservation of existing legislative districts, protection of incumbents, avoiding situations
where incumbent legislators would be forced to compete for the same new seat, etc., in
drawing new maps to reflect population changes. However, we are unpersuaded by the
23
The power of the neutral fifth member to effectuate compromises and overall balance,
even in years of partisan non-cooperation, cannot be overstated. There is nothing in
the reapportionment paradigm requiring that the only plans to be considered should be
competing ones emerging from various caucuses. The chair could insist that the
starting point be a plan upon which there is some bipartisan consensus; and, if the
legislative members refused or declined, the chair could suggest his/her own starting
point.
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 44
argument that these political concerns are constitutionalized, that they must be
accommodated, or, more to the dispute sub judice, that their consideration can justify
what would otherwise be a demonstrated violation of the specific constitutional
constraints enumerated in Section 16. These “political” factors can operate at will – so
long as they do not do violence to the constitutional restraints regarding population
equality, contiguity, compactness, and respect for the integrity of political subdivisions.
In short, the requirements in Section 16 necessarily trump mere political factors that
might color or corrupt the constitutional reapportionment process. Holt I, 38 A.3d at
745. See also Wilson v. Kasich, 981 N.E.2d 814, 820 (Ohio 2012) (citing Holt I, 38 A.3d
at 745) (Ohio Constitution does not prevent apportionment board from considering
partisan factors in its apportionment decision, although partisan factors cannot override
politically neutral constitutional requirements); In re Reapportionment of the Colorado
Gen. Assembly, __ P.3d __, 2011 WL 5830123, *3 (Colo. 2011) (“Other
nonconstitutional considerations, such as the competitiveness of a district, are not per
se illegal or improper; however, such factors may be considered only after all
constitutional criteria have been met”); In re Legislative Districting of the State, 805 A.2d
292, 326 (Md. 2002) (“The constitution ‘trumps' political considerations. Politics or nonconstitutional considerations never ‘trump’ constitutional requirements.”).
The LRC paints its goals of preserving the cores of existing legislative districts,
maintaining the existing partisan makeup of the General Assembly, and protecting
incumbents as appropriate attempts to ensure that the citizens – and not
reapportionment commissioners – choose their legislators. In the LRC’s view, upheaval
or uncertainty in the electoral process must be avoided, and “historical” legislative
districts should be preserved out of respect for the choices of the voting public and in
the interest of efficiency. However, we are not so naïve as not to recognize that the
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 45
redistricting process may also entail an attempt to arrange districts in such a way that
some election outcomes are essentially predetermined for voters – “safe seats” and the
like. Again, we do not doubt the legitimacy of employing such political factors in the
redistricting process – or, put more precisely, nothing in the Constitution prohibits their
consideration.
The constitutional reapportionment scheme does not impose a
requirement of balancing the representation of the political parties; it does not protect
the “integrity” of any party’s political expectations. Rather, the construct speaks of the
“integrity” of political subdivisions, which bespeaks history and geography, not party
affiliation or expectations. Presumably, innumerable maps could be drawn, motivated
exclusively by the perceived political advantages they offer to one party or another,
which do not do violence to the constitutional restrictions imposed by Section 16; the
Constitution does not ban such political efforts.
But, this does not mean that a desire to protect incumbency, or to preserve prior
district lines, or to maintain the political balance from a decade before, can go further
and excuse a plan that achieves those political ends by doing unlawful violence to the
restraints specified in Section 16. The political winds, and voter preferences, may shift
over time. Citizens within a political subdivision may want a realistic chance to elect
someone other than their incumbent. Assume a redistricting map in place which one
party views as unfairly balanced (politically) to solidify or ensure the power of another
party. In the next redistricting process, the party that considers itself aggrieved by the
old map can seek to rework the map to accomplish what it views as a restoration of
political balance – or even to tilt the balance more heavily in its favor. There is nothing
in the Constitution to prevent such a politically-motivated effort – so long as it does not
do unlawful violence to the core restraints expressed in Section 16. In short, there is no
“preference for incumbency” or preservation of party representation restraint in our
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 46
Constitution prohibiting future reapportionment commissioners from seeking to achieve
this end; and if that view secures a majority vote of that year’s LRC, and it does not do
violence to the Section 16 restrictions, presumably, it can become law.
This is not an academic exercise. The Costa appellants, comprising the entire
Democratic Senate Caucus, claim that the Senate district map in this Final Plan is not
bipartisan at all, but essentially represents the preferences of the Republican Senate
Caucus. The Costa appellants further allege that the 2001 Senate map already resulted
in Republican dominance out of proportion to party registration and party voting patterns
in the Commonwealth. The Costa appellants then claim that the 2012 Senate map
produced by the Republican Caucus, and ultimately adopted in the 2012 Final Plan,
was designed to achieve partisan political objectives, i.e., to maintain Republican
incumbencies and to preserve or improve Republican performance out of proportion to
what the Costa appellants believe are the actual preferences of the Pennsylvania
electorate.
We need not credit these arguments. We offer them merely to demonstrate the
flaw in the LRC’s argument concerning the supposed constitutionalization of prior
redistricting plans, and to demonstrate the limited constitutional relevance of
protecting incumbents, protecting existing district lines, and preserving the existing
partisan makeup of the General Assembly.
The Costa appellants’ complaints
concerning perceived partisan motivations have no relevance to redistricting except
insofar as they may relate to the specified and recognized constitutional bases for
challenge; political parties may seek partisan advantage to their proverbial heart’s
content, so long as they do so within the constraints of Section 16. But, by the same
token, in a future redistricting effort, the perceived imperative of incumbency protection
or protection of existing district lines can be argued and perhaps honored as a
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 47
discretionary matter, but it would not constitutionally constrain a future commission from
making an adjustment.
What would constrain the effort would be a meritorious
challenge premised upon population equality, compactness, contiguity, respect for
political subdivisions, or the Voting Rights Act.24
24
Justice Stephen Breyer, in a dissenting opinion in Vieth v. Jubelirer, 541 U.S. at 360,
a case involving an equal protection challenge, frankly described the value of political
considerations in drawing electoral maps, while also expressing their limits and his own
concern with potential abuses. We need not approve the expression to recognize its
usefulness in terms of identifying the practical interplay of considerations:
This is to say that traditional or historically based boundaries
are not, and should not be, “politics free.” Rather, those
boundaries represent a series of compromises of principle—
among the virtues of, for example, close representation of
voter views, ease of identifying “government” and
“opposition” parties, and stability in government. They also
represent an uneasy truce, sanctioned by tradition, among
different parties seeking political advantage.
As I have said, reference back to these underlying
considerations helps to explain why the legislature's use of
political boundary-drawing considerations ordinarily does not
violate the Constitution's Equal Protection Clause. The
reason lies not simply in the difficulty of identifying abuse or
finding an appropriate judicial remedy. The reason is more
fundamental: Ordinarily, there simply is no abuse. The use of
purely political boundary-drawing factors, even where
harmful to the members of one party, will often nonetheless
find justification in other desirable democratic ends, such as
maintaining relatively stable legislatures in which a minority
party retains significant representation.
II
At the same time, these considerations can help identify at
least one circumstance where use of purely political
boundary-drawing factors can amount to a serious, and
remediable, abuse, namely, the unjustified use of political
factors to entrench a minority in power. By entrenchment I
( continued)
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 48
(continued
)
mean a situation in which a party that enjoys only minority
support among the populace has nonetheless contrived to
take, and hold, legislative power. By unjustified
entrenchment I mean that the minority's hold on power is
purely the result of partisan manipulation and not other
factors. These “other” factors that could lead to “justified”
(albeit temporary) minority entrenchment include sheer
happenstance, the existence of more than two major parties,
the unique constitutional requirements of certain
representational bodies such as the Senate, or reliance on
traditional (geographic, communities of interest, etc.)
districting criteria.
The democratic harm of unjustified entrenchment is obvious.
As this Court has written in respect to popularly based
electoral districts:
“Logically, in a society ostensibly grounded on
representative government, it would seem reasonable
that a majority of the people of a State could elect a
majority of that State's legislators. To conclude
differently, and to sanction minority control of state
legislative bodies, would appear to deny majority
rights in a way that far surpasses any possible denial
of minority rights that might otherwise be thought to
result. Since legislatures are responsible for enacting
laws by which all citizens are to be governed, they
should be bodies which are collectively responsive to
the popular will.” Reynolds [v. Sims], 377 U.S. [535],
at 565, 84 S.Ct. 1362 [(1964)].
Where unjustified entrenchment takes place, voters find it far
more difficult to remove those responsible for a government
they do not want; and these democratic values are
dishonored.
541 U.S. at 360-61 (Breyer, J., dissenting) (emphasis in original). See also id. at 363-64
(“The party that controls the process has no incentive to change it. And the political
advantages of a gerrymander may become ever greater in the future. The availability of
enhanced computer technology allows the parties to redraw boundaries in ways that
( continued)
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 49
B. Global Challenges Based Upon Splits of Political Subdivisions
Notwithstanding comparatively brief excursions into claims that the 2012 Final
Plan contains districts that are insufficiently contiguous and compact, the appellants
have devoted most of their energy to their arguments concerning alleged unnecessary
political subdivision splits, and the LRC has responded with a similar focus.
The
subdivision splits indeed appear to present the more troublesome challenge. Although
we view the question to be close, we ultimately conclude that the appellants have not
proven that the 2012 Final Plan is contrary to law on grounds that it contains political
subdivision splits that are not absolutely necessary. The Court in Holt I was careful to
stress that it did not “set any immovable ‘guideposts’ for a redistricting commission to
meet that would guarantee a finding of constitutionality, as against challenges premised
upon population equality, subdivision splits, compactness, or contiguity.” Holt I, 38 A.3d
at 736. By the same token, Holt I was careful not to impose undue limits, or “firm
parameters,” upon the LRC in exercising its discretionary authority to devise a plan.
The LRC stresses that its 2012 Final Plan is an improvement over the unconstitutional
2011 Final Plan, and indeed, is better than any previous redistricting plan in terms of
compactness, contiguity, and respect for political subdivisions.
We doubt neither of these assertions; on the other hand, we recognize that
improvement was inevitable once the Holt I Court announced, in the prospective
guidance it afforded, that the LRC upon remand need not devise a reapportionment
plan that “pursue[s] the narrowest possible deviation [in population among districts], at
the expense of other, legitimate state objectives, such as are reflected in our charter of
(continued )
target individual neighborhoods and homes, carving out safe but slim victory margins in
the maximum number of districts, with little risk of cutting their margins too thin.”).
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 50
government.” 38 A.3d at 760. We suggested that this prospective recalibration in the
acceptable range of deviation from the ideal population for each district “should allow
more breathing space for concerns of contiguity, compactness, and the integrity of
political subdivisions.” Id. at 759. The 2012 Final Plan contains population deviations
that are significantly greater than the deviation ranges employed in the 2011 Final Plan:
under the 2012 Final Plan, the range of population deviation for the House is 7.88%
(compared to 5.98% in the 2011 Final Plan), and for the Senate it is 7.96% (compared
to 3.89% in the 2011 Final Plan). Indeed, the effect is so obvious, the Holt appellants
suggest that the increase in population deviation alone accounts for the “improvement”
in the LRC’s 2012 Final Plan.
What is more important than the fact that the new plan is “better,” or that the
appellants claim that alternate plans they have devised prove that the LRC’s better plan
still contains subdivision splits that were not “absolutely necessary,” is that Holt I made
clear that “we do not direct a specific range for the deviation from population equality . .
. [n]or do we direct the LRC to develop a reapportionment plan that tests the outer limits
of acceptable deviations.” Id. at 761. We issued those caveats because we recognized
that “the law in this area remains complex and dynamic,” we respected the
“considerable discretion” retained by the LRC in fashioning a constitutional plan, and we
had no doubt the LRC was up to the task, and would engage in a good faith effort to
devise a constitutional map. Id. The significance of these observations is twofold.
First, even in pursuit of protecting the integrity of political subdivisions, the question is
not one of mere mathematics or computer schematics: multiple constitutional and
practical (geography, demographic distribution) values must be balanced in this
exercise in line-drawing. And, second, it is not even possible to set a specific standard
of deviation in population equality by which to measure, in any realistic sense, whether
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 51
a subdivision split is necessary in some “absolute” sense.
The parties agree that
federal law safely permits a population deviation range of up to 10%.
Adjusting
population deviations by another quarter percentage point, say, presumably would allow
room for fewer subdivision splits.
But, Section 16 of Article II of the Pennsylvania
Constitution does not speak of a 10% deviation range; it requires districts “as nearly
equal in population as practicable.” There obviously is discretion vested in the LRC to
determine what is most practicable. Holt I, 38 A.3d at 738 (recognizing difficulty in
LRC’s task, “not only because of the political and local interests that are affected by any
change in the existing scheme, but also because accommodating one [constitutional]
command can make accomplishing another command more difficult.”).
According to the Pennsylvania Constitution, the Commonwealth must be divided
into 50 Senate and 203 House districts. Based on 2010 census data, the ideal House
district has a population of 62,573; the largest House district in the 2012 Final Plan has
a population of 65,036, and the smallest has a population of 60,110. The ideal Senate
district has a population of 254,048; the largest Senate district in the 2012 Final Plan
has a population of 264,160, and the smallest has a population of 243,946. As noted,
no legislative district, Senate or House, deviates more than 3.98% from the “ideal”
district size, with a total deviation of 7.88% in the House and 7.96% in the Senate. Not
surprisingly, there is no population equality challenge forwarded in these appeals.
The appellants argue that, while employing the same basic ranges of population
deviation as the LRC, they have produced maps with fewer political subdivision splits.
And, to take the Senate map for instance, measured by raw numbers, the Holt and
Costa alternatives indeed contain fewer subdivision splits, including splits of counties,
the largest of political subdivisions. (For example, the Costa plan presented the LRC
with ten fewer county splits – 20% of the total number of splits -- than the Republican
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 52
Caucus map, which was ultimately adopted as the 2012 Final Plan.) This is but a
starting point for analysis of the legality of the plan, however, since there are a number
of other factors to measure.
Another factor in favor of appellants, and frankly the one giving most reason for
pause beyond the production of alternate plans with fewer subdivision splits, arises from
the LRC premising so much of its argument upon the notion that preservation of the
cores of prior districts, and protecting incumbents and the current political makeup of
the General Assembly, are concerns requiring constitutional accommodation in the
formulation of a new map. As we have noted, such political concerns may indeed be
pursued and considered, so long as their accommodation does not cause a
demonstrated violation of Section 16 factors, factors which are politically neutral. The
difficulty, however, resides in attempting to identify with any level of precision where and
how, if at all, these political factors cross the line, and can be said to have caused
subdivision splits that were not absolutely necessary. There is no relevant record of the
reasons why particular splits were made, pointing in either direction.
We are not
unsympathetic to the plight of citizen challengers who have no way of going behind the
plans that were produced, or assessing generalized responsive justifications.
And,
there is nothing inherent in the redistricting process to preclude the LRC from being
more transparent in its intentions. But, on the other hand, the commission process is
the process the Constitution has provided, the Constitution does not require that level of
explication, it necessarily vests discretion in the judgment of the commissioner
members, and it does so with a deliberate scheme where four of the five commissioners
are the party leaders so as to, inter alia, “‘essentially retain[]’” “‘the Legislature’s
expertise in reapportionment matters.’” Holt I, 38 A.3d at 745 (quoting Specter, 293
A.2d at 17-18).
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 53
There are several factors that persuade us to conclude that the 2012 Final Plan
is not contrary to law, as against the challenge that it contains subdivision splits that are
not absolutely necessary. For one thing, unlike in Holt I, this is not a case where the
challengers’ presentation “overwhelmingly” shows the existence of political subdivision
splits that rather obviously were not made absolutely necessary by competing
constitutional, demographic, and geographic factors, and indeed where it was
“inconceivable” that the number of subdivision splits was “unavoidable.” See Holt I, 38
A.3d at 756. The pure mathematics are not nearly as dramatic with the 2012 Final Plan.
The proffered alternate plans this time around thus more directly implicate the Court’s
repeated caution that the question is not whether there exists an alternative redistricting
map which is claimed to be “preferable” or “better” than the LRC’s map, but rather
whether the LRC’s proffered plan, which must balance multiple considerations, fails to
meet core and enumerated constitutional requirements. Albert, 790 A.2d at 995 (citing
In re 1981 Plan, 442 A.2d at 665).
Viewed in raw terms (and not merely in comparison with other plans), the 2012
Final Plan has few raw splits when viewed in comparison to the total number of
counties, municipalities and wards in the Commonwealth. In the Senate, the 2012 Final
plan splits only 25 out of 67 counties, only two out of 2563 municipalities, and only ten
out of 4462 wards. In the House, the 2012 Final Plan splits 50 out of 67 counties (many
of those splits being inevitable based on population alone), 68 out of 2563
municipalities, and 103 out of 4462 wards. We agree with the LRC that the number of
splits, over and above those numbers which would be inevitable even in the absence of
other constitutional factors, is remarkably small.
The LRC’s new plan is not perfect, nor is it directly responsive to every
challenger’s argument respecting individual subdivision splits. But, as we emphasized
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 54
in Albert and reaffirmed in Holt I, our focus necessarily must be on the plan as a whole
rather than on individual splits and districts, Albert, 790 A.2d at 996-98, given that “a
certain amount of subdivision fragmentation is inevitable since most political
subdivisions will not have the ‘ideal’ population for a House or Senate district.” Id. at
993 (citing Specter, 293 A.2d at 23). See also Holt I, 38 A.3d at 758 (“In the end,
however, we recognize that the Pennsylvania Constitution permits absolutely necessary
political subdivision splits, and that some divisions are inevitable.”). By necessity, a
reapportionment plan is not required to solve every possible problem or objection in
order to pass constitutional muster.
Moreover, respecting the point that it may be
possible to produce maps with fewer subdivision splits, that circumstance alone proves
little, since respect for the integrity of political subdivisions is but one of multiple state
constitutional and federal commands that must be accommodated.
Another consideration of some significance is that, even in the face of the
objections and alternate plans that were proffered, the 2012 Final Plan, which lacks the
stark, facially problematic features of the 2011 Final Plan, was devised and accepted by
a majority of the LRC in the wake of the directives we issued in Holt I. As the LRC has
pointed out, any plan requires some compromise to achieve a majority vote; and any
plan involves choices where some person or community or group may be aggrieved;
along these lines, the LRC further argues, many of the alternate plans proffered here
are notable in that they obviously further the interests of the individuals and groups that
produced them.
Thus, for example, the Costa alternate plan for the Senate,
representing the Senate Democratic Caucus, had more subdivision splits than the Holt
alternate plan.
Finally, in measuring the apparent strengths of the 2012 Final Plan against the
probative value of alternate plans with fewer subdivision splits, we do not discount that
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 55
redistricting efforts may properly seek to preserve communities of interest which may
not dovetail precisely with the static lines of political subdivisions.
Dean Gormley,
whose hands-on experience and writings in this area proved helpful to the Court in Holt
I, made the following point concerning communities of interest in a law review article
that we cited with approval in Holt I:
At the same time, states have historically considered
a broad range of such imprecise communities of interest
(many of which are naturally intertwined) in exercising their
sound discretion. They do so to satisfy constituents. They do
so to sweep together a host of generally identifiable interest
groups that wish to be given a unified voice. This is perfectly
healthy and permissible. It is an important aspect of the
state's prerogative, when it comes to structuring its own form
of government. Consequently, when it comes to
reapportionment bodies considering race in this permissive,
discretionary fashion, the courts should scrupulously avoid
meddling.
Holt I, 38 A.3d at 746 (quoting Gormley, Racial Mind–Games and Reapportionment, 4
U. PA. J. CONST. L. 735, 780–81 (2002)). Accord Holt I, 38 A.3d at 745 (noting that
constitutional restrictions in Section 16 “recognize that communities indeed have shared
interests for which they can more effectively advocate when they can act as a united
body and when they have representatives who are responsive to those interests.“). We
believe that this caution, though articulated in the context of concerns with equal
protection and race, is no less appropriate when considering other, specifically identified
constitutional redistricting concerns.
Balancing all of these interests, we believe that the 2012 Final Plan is not
contrary to law on grounds that it does not respect the integrity of political subdivisions.
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 56
C. Challenges Implicating Compactness and Contiguity25
The remaining challenges to the 2012 Final Plan – based on alleged violations of
Section 16’s mandate that districts be “of compact and contiguous territory” – fail for
much the same reasons as do the challenges premised upon alleged unnecessary
splits of political subdivisions. We first note that only the Holt appellants challenge the
2012 Final Plan as a whole on these additional grounds; other challengers focused on
specific districts, e.g., the Costa appellants claim the 35th Senatorial District should have
been more compact, and the Sabatina appellants object to the shapes of the 127th and
174th House Districts. The Holt appellants rely on the Polsby and Popper method for
measuring objective compactness of districts (see page 14 & n.3, supra), but we agree
with the LRC that it is not obliged to adopt this or any other of an apparent variety of
such compactness models. Indeed, no principle has been articulated to us by which we
may assess which of multiple methods of assessing compactness could or should be
employed. In any case, even accepting the method favored by the Holt appellants, their
alternate plan provides Senate districts that are approximately 27% more compact than
the 2012 Final Plan, and House districts that are approximately 34% more compact than
the 2012 Final Plan. Although this demonstrates that greater compactness is possible,
it does not show that these compactness problems rise to the level of a constitutional
violation, given the interplay of other constitutional imperatives. We have no reason to
doubt the validity of the LRC’s argument that the Commonwealth’s population is spread
out across a large and geographically diverse territory, and that balancing the factors of
population equality and integrity of political subdivisions necessitates “a certain degree
of unavoidable non-compactness in any reapportionment scheme.” Specter, 293 A.2d
25
As we concluded in footnote 11, supra, the Cruz appellants’ claim based on alleged
violations of the Voting Rights Act is without merit, and warrants no further discussion.
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 57
at 23. We further agree with the LRC that the 2012 Final Plan should not fail simply
because “the shape of a particular district is not aesthetically pleasing.” Id. at 24. Given
the geographic anomalies of the Commonwealth, taken together with the other factors
that may properly be considered by the LRC, the appellants have not proven that the
2012 Final Plan is infirm on compactness grounds.
With regard to Section 16’s requirement that legislative districts be comprised of
“contiguous territory,” we have stated that a contiguous district is “one in which a person
can go from any point within the district to any other point (within the district) without
leaving the district, or one in which no part of the district is wholly physically separate
from any other part.” Specter, 293 A.2d at 23. The LRC again defends the 2012 Final
Plan based on geographic anomalies that make certain non-contiguous districts in the
2012 Final Plan unavoidable; the LRC notes that the same seven non-contiguous
districts exist in both the 2011 and 2012 Final Plans. We did not strike the 2011 Final
Plan on the basis that its districts were insufficiently contiguous. The LRC points out
that, in these situations, it was faced with choosing between creating additional political
subdivision splits and unifying areas divided by a “handful of nearly uninhabited
geographic quirks.” LRC Brief at 55-56. Furthermore, our independent review of the
LRC’s Senate and House maps discloses no overt instances of bizarrely shaped
districts, bespeaking (as appellants allege) only an intent to gather together certain
targeted blocs of voters. In this context, we do not believe the appellants have proven
that the 2012 Final Plan is contrary to law because legislative districts are insufficiently
contiguous.
IV. Conclusion
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 58
The matter has been ably briefed, both by concerned citizens and the LRC. For
the reasons we have articulated above, we reaffirm Holt I as against the various
challenges made to the decision; and we further determine that, as against the specific
challenges presented in these various appeals, the LRC, in crafting the 2012 Final Plan,
sufficiently heeded this Court’s admonition that it “could have easily achieved a
substantially greater fidelity to all of the mandates in Article II, Section 16” than it did in
its unconstitutional 2011 Final Plan. See Holt I, 38 A.3d at 718. Moreover, we hold that
the appellants have not demonstrated that the 2012 Final Plan is contrary to law. We
therefore conclude that the LRC has utilized the population data of the 2010 census to
create a redistricting map that complies with the Pennsylvania Constitution, which shall
hereby have the force of law, beginning with the 2014 election cycle. The appeals are
dismissed.
Jurisdiction relinquished.
Former Justice Orie Melvin did not participate in the consideration or decision of
these appeals.
Messrs. Justice Eakin and Baer, Madame Justice Todd and Mr. Justice
McCaffery join the opinion.
Mr. Justice Saylor files a concurring opinion.
[J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012] - 59
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