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," Albert v. 2001 Legislative Reapportionment Commission, 567 Pa. 670, 790 A.2d 989, 991 (2002) (quoting per curiam order), shall remain in effect until a revised final 2011 Legislative Reapportionment Plan having the force of law is approved. PA. CONST. art. II, § 17(e).
All 2012 election dates shall remain the same, with the exception of the primary election calendar, which is adjusted as follows:
Thursday, January 26 First day to circulate nomination petitions Thursday, February 16 Last day to file nomination petitions Thursday, February 23 Last day to file objections to set aside nomination petitions Monday, February 27 Last day that court may fix for hearings on objections to nomination petitions Friday, March 2 Last day for court to finally determine objections to nomination petitions Friday, March 2 Last day for withdrawal by candidates who filed nomination petitions
Any signatures on nomination petitions dated January 24 or January 25, 2012, shall be deemed valid as to timeliness, subject, however, to any other statutory challenge.
Jurisdiction is retained.
Justice SAYLOR files a dissenting statement, in which Justice EAKIN and Justice ORIE MELVIN join.
Justice SAYLOR, dissenting.
Based on the petitions, briefs, and argument, I am not persuaded that the 2011 Legislative Reapportionment Plan is contrary to law as reflected in the existing precedent. Although I am receptive to the concern that past decisions of the Court may suggest an unnecessarily stringent approach to equalization of population as between voting districts, I believe this could be addressed via prospective guidance from the Court.
Justice EAKIN and Justice ORIE MELVIN join this dissenting statement.
Chief Justice CASTILLE.
Legislative redistricting "involves the basic rights of the citizens of Pennsylvania in the election of their state lawmakers."
In any event, fourteen days after the appeals were filed, seven days after the matters were briefed, and two days after the appeals were argued, this Court issued its mandate in a per curiam order filed January 25, 2012. That order declared that the Final Plan was contrary to law under Article II, Section 17(d) of the Pennsylvania Constitution, and consistently with the directive in that constitutional provision, we remanded the matter to the LRC to reapportion the Commonwealth in a manner consistent with an Opinion to follow. This is that Opinion.
The substantive task of the LRC in decennial redistricting is governed by Article II, Section 16 of the Pennsylvania Constitution, which provides:
PA. CONST. art. II, § 16. The Constitution also specifically provides that, once the LRC has adopted a Final Plan, "any aggrieved person" may appeal directly to this Court. PA. CONST. art. II, § 17(d). The Constitution further 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 directing the commission to reapportion the Commonwealth in a manner not inconsistent with such order." Id.
In our most recent redistricting opinion, Albert v. 2001 Legislative Reapportionment Commission, 567 Pa. 670, 790 A.2d 989, 991 (Pa.2002), we rejected a series of localized challenges to a final plan, which were based on lack of compactness, alleged unnecessary splits of particular political subdivisions, and other issues. Central to our decision in that case was our recognition that the challengers there had "focused primarily on the impact of the plan
As we develop more fully below, we find that the 2011 Final Plan is contrary to law because appellants—in particular, the appellants in Holt v. 2011 Legislative Reapportionment Commission, 7 MM 2012, and to a lesser extent, the appellants in Costa v. 2011 Legislative Reapportionment Commission, 1 WM 2012—have heeded the admonition in Albert, and they have demonstrated that the Final Plan, considered as a whole, contains numerous political subdivision splits that are not absolutely necessary, and the Plan thus violates the constitutional command to respect the integrity of political subdivisions. Furthermore, in their challenge, the appellants have shown that the LRC could have easily achieved a substantially greater fidelity to all of the mandates in Article II, Section 16—compactness, contiguity, and integrity of political subdivisions—yet the LRC did not do so in the Final Plan.
Although we are satisfied that the appellants challenging the Final Plan as a whole have made their case under existing decisional law and constitutional imperative, our consideration of this appeal, and our review of prior law, has convinced us that, going forward—and the initial opportunity to go forward is upon this remand—a better and more accurate calibration of the interplay of mandatory constitutional requirements would provide salutary guidance in future redistricting efforts. Accord Order, 1/25/12 (per curiam) (Saylor, J., dissenting, joined by Eakin and Orie Melvin, JJ.).
The delay of the LRC in producing a Final Plan has created a situation where, notwithstanding the alacrity with which this Court has acted, this Court's discharge of its constitutional duty to review citizen appeals has resulted in disruption of the election primary season. But, in these circumstances, ones not of this Court's creation, the rights of the citizenry and fidelity to our constitutional duty made the disruption unavoidable.
I. Background for the Adoption of the 2011 Final Plan
Every ten years, following the federal decennial census, our Constitution mandates reapportionment, or redistricting, of the Commonwealth. See PA. CONST. art. II, § 17(a).
As required by Section 17, a reapportionment body was constituted in 2011, the year following the federal decennial census. See PA. CONST. art. II, § 17(a). That body, the LRC, consists of five members, four of whom are specifically identified by the Constitution based upon their partisan leadership roles in the General Assembly: for this reapportionment, the members are the Senate Majority Leader (Dominic Pileggi (R)), the Senate Minority Leader (Jay Costa (D)), the House Majority Leader (Mike Turzai (R)), and the House Minority Leader (Frank Dermody (D)). See PA. CONST. art. II, § 17(b). On February 18, 2011, the President pro tempore of the Pennsylvania Senate and the Speaker of the Pennsylvania House of Representatives certified these four automatic members to serve on the 2011 LRC. Section 17(b) provides that the four legislative members of the LRC shall select the fifth member, who will serve as chairman, within forty-five days of their certification. If the legislative leaders fail in this task, the Supreme Court is required to appoint the chairman within thirty days. On the forty-fifth day after their certification, on April 4, 2011, the legislative members announced their failure to agree on the chairman of the LRC, leaving the task of appointment to this Court. Fifteen days later, on April 19, 2011, this Court appointed as LRC chairman the Honorable Stephen J. McEwen, Jr., President Judge Emeritus of the Superior Court of Pennsylvania. The Court's prompt action afforded the LRC two additional weeks to perform its task. The LRC appointed its technical staff and legal advisors at an administrative meeting in May 2011.
The U.S. Census Bureau had released 2010 census data to the Commonwealth on March 9, 2011. See Pennsylvania Legislative Redistricting website, http://www. redistricting.state.pa.us/index.cfm. This data was released well before the deadline provided by federal law. See 13 U.S.C. § 141 ("basic tabulations of population of each other State, shall, in any event, be completed, reported, and transmitted to each respective State within one year after the decennial census date," i.e., April 1, 2011).
On August 17, 2011, after a lengthy delay, the LRC accepted the U.S. census data as presented by the Legislative Data Processing Center ("LDPC") and contractor Citygate GIS as "usable," and resolved that the availability of the data triggered the ninety-day period for filing a preliminary redistricting plan. See PA. CONST. art. II, § 17(c) ("No later than ninety days after either the commission has been duly certified or the population data for the 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."). There is no explanation for the LDPC's delay in generating "usable" data, a circumstance we will address below.
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.
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, 790 A.2d at 991). That aspect of our mandate arose by 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.
II. Preliminary Issues
A. The LRC's Delay in Adopting a Final Plan
As we have noted, the Final Plan was adopted at such a late date as to ensure that, even with adoption of the most accelerated of processes, this Court would lack adequate time to consider the matter, with due reflection, and issue a mandate and reasoned decision before the primary election process was underway. The delay is unexplained; and it stands in stark contrast to the timing of the adoption of prior plans, plans that were no doubt created with less advanced computer technology. The Constitution provides that "[n]o later
As noted above, the LRC states that the 2010 census data was not "available" before August 17, 2011, the date the LDPC provided it with the census data in "usable form," and that "this event triggered the 90-day time-period for formulating a preliminary reapportionment plan." LRC's Brief at 10: accord Costa Brief at 3. Notably, with far less sophisticated technology in 1991, and with two fewer rounds of redistricting experience, the LDPC was able to produce the census data in usable form by June 27th of that year—fifty-one days sooner. Gormley, Legislative Reapportionment, at 24.
The LRC provides no further information about the LDPC's procedures, and what precisely the LDPC must do to the so-called "raw" census data in order to
B. The LRC's Preliminary Objections
The LRC filed preliminary objections in most of these appeals, seeking outright dismissal for what it terms pleading defects. After the initial petitions for review were filed, but before briefing, the LRC filed preliminary objections in Costa, Comitta, Scoda, Coles, Kim, Bradley, and Kortz, asserting that those petitions should be dismissed for failure to include a verification. The LRC also filed preliminary objections in Baylor and Alosi, two of the pro se appeals, asserting that those appellants violated rules regarding the form of pleading. LRC's Preliminary Objections (citing Pa.R.A.P. 1513(c)). The LRC did not file preliminary objections in either Schiffer, Zayas, or Holt, which this Court has designated as the lead appeal. The LRC argues that redistricting challenges arise in this Court's original jurisdiction and, therefore, as in all other original jurisdiction matters, all rules regarding pleading and verification apply here. LRC's Preliminary Objections (citing Pa. R.A.P. 1517 (Pennsylvania Rules of Civil Procedure apply to petitions for review filed in appellate court's original jurisdiction); Pa.R.A.P. 1513(e)(5) (petition for review filed in appellate court's original jurisdiction must be verified)).
The Costa appellants responded with a motion to strike the LRC's preliminary objections, arguing that redistricting appeals lie in this Court's appellate rather than original jurisdiction and that as such, no verification is required. See Costa Motion to Strike at 4 (citing Pa.R.A.P. 1513(d)). Appellants in Coles, Kim, and Bradley joined the Costa motion to strike. The appellant in Baylor sought to "cure" the alleged defects with additional filings.
Our mandate having already issued, without dissent on the grounds specified in the preliminary objections, the preliminary objections obviously must fail.
The question of whether preliminary objections to petitions for review are cognizable
Generally, in matters filed within a court's appellate jurisdiction, no pleadings (including answers and preliminary objections) may be filed as of right in response to petitions for review. The Rules of Appellate Procedure simply do not contain a provision similar to that in the Rules of Civil Procedure permitting the filing of preliminary objections. Compare Pa. R.A.P. 1501 et seq. with Pa.R.C.P. No. 1028. Rule 1516 specifically provides that, as to redistricting matters, "[n]o answer or other pleading to an appellate jurisdiction petition for review is authorized, unless the petition for review is filed pursuant to ... Rule 3321." Pa.R.A.P. 1516(a). Rule 3321 is a narrow exception to Rule 1516, by which this Court may permit filing of an "answer or other pleading" by order. In the appeals before us, our scheduling order noted that we would entertain a substantive answer and brief from the LRC, but we did not authorize the filing of preliminary objections. See Order, 1/11/12 (per curiam).
This practice is appropriate, as it promotes the salutary purposes embodied in the Rules of Appellate Procedure. These Rules are meant to be "liberally construed to secure the just, speedy and inexpensive determination" of appeals, Pa. R.A.P. 105(a). Re-characterizing these constitutional appeals as challenges sounding in our original jurisdiction would not advance orderly review of these time-sensitive, and often complex, matters. We view the petition for review process in these appeals as putting the Court on notice of the scope of the issues to come before it, inevitably in an accelerated time frame, and in advance of the briefs. The process permits the Court to organize the appeals for purposes of oral argument, and to begin to conduct research on the issues. It would do nothing to advance "the just, speedy and inexpensive determination" of this unique class of appeals to treat the cases as if they were original jurisdiction matters, and thus to open the doors to technical pleading challenges and counter-challenges, and add a layer of complexity to a time-sensitive matter, without illuminating the substantive issues upon which the Court must pass. Accordingly, the Costa appellants' Motion to Strike is granted and the LRC's preliminary objections are stricken.
III. The Appellants and Their Various Claims
A. The Citizen Appellants
Our Constitution permits any aggrieved person to file an appeal from the LRC's
In the lead appeal docketed at 7 MM 2012 ("Holt"), the appellants describe themselves as individual voters, registered Democrats and Republicans, hailing from Allegheny, Chester, Delaware, Lehigh, and Philadelphia Counties. Appellants in the appeal docketed at 1 WM 2012 ("Costa") are all twenty Senators elected as Democrats, members of the minority party in the Pennsylvania General Assembly, and registered voters. Senator Brewster, representing the 45th Senatorial District in the Monongahela Valley, filed a separate "letter brief" in support of the Costa appeal.
The appeals in both 2 MM and 3 MM 2012 focus on Chester County. Appellants in 2 MM 2012 ("Comitta"), are elected officials and resident voters in West Chester Borough, Chester County. Appellants in 3 MM 2012 ("Scoda") are resident voters and the mayor and a member of the Borough Council, in the Borough of Phoenixville, Chester County.
The separate appeals at 4 MM 2012, 5 MM 2012, and 8 MM 2012 all focus on Delaware County. Appellants in 4 MM 2012 ("Schiffer") are individual voters from Haverford Township, Delaware County. At 5 MM 2012 ("Coles"), appellants are individual voters from Upper Darby and Darby Townships in Delaware County. At 8 MM 2012 ("Bradley"), appellants are individual voters from the Delaware County Boroughs of Collingdale, Darby, Swarthmore, Upper Darby, and Yeadon. Appellant at 6 MM 2012 ("Kim"), is a councilwoman and voter in the City of Harrisburg, Dauphin County. Appellants in 4 WM 2012 ("Kortz") are voters from Allegheny, Washington and Lawrence Counties.
Three appellants have filed pro se appeals. At 9 MM 2012 ("Baylor"), appellant is a voter and Township Auditor in Tilden Township, Berks County. At 10 MM 2012 ("Alosi"), appellant is a resident of the Shippensburg area, in South-Central Pennsylvania. Finally, in the appeal docketed at 17 MM 2012 ("Zayas"), appellant is a voter in the City of Reading, Berks County.
In all of these appeals, the LRC is appellee. The LRC does not dispute the standing of any of the appellants.
B. The Issues Raised by Appellants
Two of the appeals before us, Holt and Costa, explicitly raise and develop global challenges premised primarily upon the constitutional ban on dividing counties, municipalities, and wards "unless absolutely necessary." See PA. CONST. art. II, § 16. The Holt and Costa appellants requested that the Court remand the Plan to the LRC for a second attempt at redistricting in accordance with law. Because the Holt claims, and to a lesser extent, the Costa claims, form the primary basis for our conclusion that the Final Plan was contrary to law, these claims will be developed further, infra. Challengers in three other appeals, Coles, Kim, and Kortz, adopt the global challenge as developed in the appellants' brief in Costa.
The appellants in Bradley also adopted the Costa brief, but supplemented the argument by highlighting a narrower and localized challenge to the House redistricting plan's division of several Delaware
Finally, we have six appeals challenging only specific and local divisions of municipalities, in which the appellants, like the Bradley appellants in the development of their specific claim, request what would resemble a form of mandamus relief. Specifically, the appellants ask for remand of the Final Plan to the LRC with an explicit directive to accommodate their local concerns. Thus, in Comitta, appellants object to the division of West Chester Borough, the Chester County seat, into two House districts: under the Final Plan, four wards would remain in the 156th House District, and three wards would be removed from the 156th District and placed into the 160th House District. The Comitta appellants request that this Court order the LRC on remand to maintain the integrity of West Chester Borough and restore it to the 156th House District.
Similarly, in Scoda, appellants object to the division of Phoenixville Borough into two House districts: under the Final Plan, four wards would remain in the 157th House District, and three would be removed from the 157th District to the 155th District. Appellants in Scoda request remand to the LRC, with a directive to maintain the integrity of Phoenixville Borough and restore it to the 157th House District. The Comitta and Scoda appellants also both claim that the divisions of West Chester and Phoenixville Boroughs were motivated by partisan politics and by the desire to dilute the voting power of minorities, in violation of the Voting Rights Act of 1965.
In Schiffer, appellants state that two Haverford Township wards, Wards 1 and 9, were separated from the rest of the township in the 166th House District and placed into the 163rd House District under the 2011 Final Plan. The Schiffer appellants ask the Court to instruct the LRC on remand to assign all of Haverford Township to one district, the 166th House District.
In the Baylor matter, the pro se appellant asserts that in the four decades since he has been eligible to vote, his hometown of Tilden Township, in Berks County, has never been represented by a Berks County resident in either the Pennsylvania House or the Senate. According to appellant, Tilden Township has also been moved from one House district to another in every reapportionment cycle, which has led to distinctively low levels of political participation by residents. Appellant also argues that Berks County as a whole is excessively, and unnecessarily, divided into nine House districts. Appellant requests remand to the LRC for development of a non-partisan plan that complies with relevant law; appellant suggests redrawing the electoral map based on school district boundaries.
The pro se appellant in Alosi challenges the division of the greater Shippensburg area, which appellant states is a unified
Finally, the pro se appellant in Zayas complains that the Plan unnecessarily fragments the City of Reading, in Berks County, into two House Districts, the 126th and the 127th, with the intention and effect of reducing the political effectiveness of a rapidly increasing and politically cohesive Hispanic population in Reading. Appellant requests remand for the LRC to conduct reapportionment in accordance with constitutional and federal Voting Rights Act requirements.
In addition to these substantive challenges, the appeals and the responsive brief of the LRC present disputes concerning the Court's scope and standard of review and the burden of proof, as well as requests to explain the status of the law or to reconsider precedent in this area. Appellants address governing precedent from two perspectives. First, some appellants appear to accept the LRC's view of a peculiarly narrow scope and standard of judicial review (a central aspect of the LRC's position, as we will explain below, is that alternative plans are irrelevant), and ask that we reject that precedent as so understood. Along the same lines, other appellants take a more sophisticated approach, which reflects a closer and more accurate reading of our redistricting precedent, to argue, for example, that there is no absolute ban on consideration of alternative redistricting plans in reviewing whether the LRC's Final Plan is contrary to the law. Second, the Comitta, Scoda, Schiffer, Baylor, Alosi, and Zayas appellants request that we reconsider the requirement, established in our decisional law, that a successful challenger must address the Final Plan as a whole, and revisit the precedent to permit rejection of a final plan based upon a challenge focused only on that plan's effect on a particular political subdivision. See Albert, 790 A.2d at 995.
For organizational and decisional purposes, we will address the scope and standard of review, as well as the burden of proof, first; we will then consider the global challenges, and finally the individual challenges.
IV. The Proper Review Paradigm
A. Scope and Standard of Review
Redistricting appeals are unlike the great majority of matters upon which we pass in that there is no conventional determination to review, and an atypical party responding to the appeal. The LRC, which devised the Final Plan in the first instance, also has the task of defending its constitutionality against the specific appeals brought by citizens.
Initially, we note that, although they are often confused or conflated by litigants, the scope of and the standard of review are distinct concepts and are not appropriately substituted for one another. Succinctly stated, "scope of review" refers to "the confines within which an appellate court must conduct its examination," i.e., the "what" that the appellate court is permitted to examine. Morrison v. Commonwealth, 538 Pa. 122, 646 A.2d 565, 570 (Pa. 1994). "Standard of review" addresses the manner by which that examination is conducted, the "degree of scrutiny" to be applied by the appellate court. Id.
1. Scope of Review
Identifying the proper scope of review is of unusual importance in these appeals because the LRC's core rebuttal to the global arguments forwarded in Holt and Costa is that this Court's scope of review prevents it from even considering the alternate plans that those appellants provided to the LRC, and have used to make their cases here. The LRC's argument that our scope of review is confined to the four corners of the Final Plan rests upon two pillars. First, the LRC argues a supposed deference due to it because reapportionment is a legislative task, and consideration of alternate plans, for any purpose, "would not only usurp the Commission's constitutional authority to undertake the reapportionment but, more seriously, make it impossible for the Commission to ever know for certain that its plan will pass constitutional muster." LRC Brief at 30. Second, the LRC argues that this Court's precedent has established that review is limited to the four corners of the Final Plan, and further, that alternative plans posed by objector citizens are irrelevant for any purpose—even for the purpose of showing that a Final Plan is contrary to law.
The LRC's argument on the second point proceeds as follows. The LRC asserts that in this Court's first two reapportionment decisions following the 1968 Constitution, "a majority of the Court specifically
The LRC repeats its claim that we specifically rejected the notion that alternative plans may be considered for any purpose, with slightly more elaboration, by discussing our 1982 decision. The LRC notes that the majority opinion in that 4-3 decision stated that: "to prevail in their challenge to the final reapportionment plan, appellants have the burden of establishing not, as some of the appellants have argued, that there exists an alternative plan which is `preferable' or `better,' but rather that the final plan filed by the Pennsylvania Reapportionment Commission fails to meet constitutional requirements." In re 1981 Plan, 442 A.2d at 665. On its own, this statement says nothing that would prohibit the Court, as a scope of review matter, from looking to alternate plans in order to assess the constitutionality of the Final Plan. The LRC apparently derives that limitation from the fact that Justice Nix's dissenting opinion offered that, while he agreed that "we do not dismiss a plan because `fortuitously' another may have constructed a better one, the fact that a better one may be easily designed which accommodates all of the constitutional concerns may strongly suggest the constitutional invalidity of the selected plan." Id. at 669 (Nix, J., dissenting). After quoting Justice Nix, the LRC declares that "[t]hat view was rejected by a majority of the [In re 1981 Plan] Court." LRC Brief, at 29-30. The LRC does not cite where the majority opinion in In re 1981 Plan engaged Justice's Nix point, and specifically rejected it.
The Holt appellants dispute the LRC's interpretation of the applicable scope of review, arguing that the position that our review is limited to the four corners of the Final Plan is "tantamount to a declaration of non-reviewability." Holt Brief at 14. Appellants forward the modest proposition that this Court—like the LRC in its formulation of a Final Plan—may consider alternative plans addressing redistricting as a whole as mere proof or evidence that a substantial number of the Final Plan's political subdivision splits were not "absolutely necessary," as the Constitution requires, and thus the plan as a whole could be deemed to be contrary to law on that basis.
The Holt appellants make clear that they do not ask the Court to direct adoption of any of the alternative plans presented to the LRC, including their own. Their point is more nuanced: they embrace Justice Nix's view in dissent, quoted above, that the fact that better plans "may be easily designed which accommodate[ ] all of the constitutional concerns may strongly suggest the constitutional invalidity of the selected plan." Holt Brief at 20. Appellants note that this Court has never been presented with an appeal that challenged a prior reapportionment plan in its entirety on grounds of constitutionally excessive subdivision splits and, therefore, we have never held that their approach— offering an alternative plan as evidence or proof that the Final Plan is unconstitutional—violates the established scope of review
As stated, the reapportionment process is outlined in our Constitution, and that charter specifically confers upon "any aggrieved person" the right to appeal "directly to the Supreme Court." PA. CONST. art. II, § 17(d). Section 17(d) goes on to specify a standard of review and the appropriate remedy: "[i]f the appellant [in a redistricting matter] 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." Id. On its face, the Constitution does not dictate any form of deference to the LRC, it 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. Absent some other constraint—and we will address the LRC's decisional law argument below—this Court would logically apply the scope of review generally applicable in similar matters.
In this case, the Holt and Costa alternate plans were presented to the LRC, in part as proof that the LRC's plan was unconstitutional in that it created divisions of political subdivisions that were not "absolutely necessary." In the ordinary case, there would be no reason in law or logic why the Court would not be permitted to look at such material in discharging its constitutional duty to pass upon an appeal.
Indeed, legal challenges in general, and appellate challenges in particular, commonly
The LRC nevertheless repeatedly states as fact that the majority opinion in In re 1981 Plan "specifically" rejected the proposition, forwarded in Justice Nix's dissent, that alternate plans can be relevant proof that a Final Plan is unconstitutional. This is not so, which no doubt explains the LRC's failure to cite a point where, in the majority opinion, the "specific rejection" occurred. Indeed, the majority opinion by Mr. Justice (later Chief Justice) Roberts never once mentions Justice Nix or his dissent, much less the dissent's point that easily produced alternative plans may prove the constitutional invalidity of the selected plan. The majority never once said that alternative plans are irrelevant, cannot be considered, and are beyond the proper scope of review.
Rather, the Court in In re 1981 Plan actually said the following. At the outset of the opinion, we adverted to the decisional law of the U.S. Supreme Court concerning the Equal Protection Clause of the Fourteenth Amendment. In discussing that federal decisional law, we noted that the Supreme Court had rejected an equal protection challenge that was bottomed on a claim that a reapportionment plan should be invalidated "merely because the alternative plan proposed by the litigant is a `better' one." 442 A.2d at 664 (discussing Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973)). We then quoted Gaffney, as follows:
Id. at 664-65 (quoting Gaffney, 412 U.S. at 750-51, 93 S.Ct. 2321). Notably, in Gaffney, the U.S. Supreme Court was setting out its command for the role that federal courts should take in reviewing federal law challenges to state redistricting plans. The Gaffney Court was not, and could not, speak to the review conducted by state courts facing hybrid challenges sounding under both federal equal protection and additional state constitutional mandates.
Immediately after our quotation from Gaffney, respecting equal protection, we stated that: "Thus, to prevail in their challenge to the final reapportionment plan, appellants have the burden of establishing not, as some of the appellants have argued, that there exists an alternative plan which is `preferable' or `better,' but rather that the final plan filed by the Pennsylvania [Legislative] Reapportionment Commission fails to meet constitutional requirements." In re 1981 Plan, 442 A.2d at 665. Although we did not explain ourselves further, it appears that we found that the core principle of Gaffney respecting equal protection claims was persuasive in guiding our own, broader review of redistricting
The LRC's theory that we adopted a scope of review prohibiting consideration of alternatives seems to proceed upon the assumption that points raised in a dissent are necessarily and affirmatively "rejected" by the Court majority—even if the majority never discussed or rebutted the point. This is a strange theory indeed. First of all, a Court's silence on a point is of far less import than dicta, and it is settled that dicta has no binding effect. See, e.g., Albright v. Abington Mem. Hosp., 548 Pa. 268, 696 A.2d 1159, 1167 n. 8 (Pa.1997).
Second, a Court majority is not required to respond to every issue addressed by a dissenting opinion. Indeed, any judge of sufficient tenure has experienced the phenomenon of the ignored concurrence or dissent. A Court majority's silence on a point raised by a dissent cannot be read as a "specific" rejection of a particular position taken by a dissent, and it certainly cannot be so read where the dissent's point is not independently addressed in the majority opinion. The better and logical interpretation of the majority's silence in In re 1981 Plan, when that case is read against its facts and the specific legal challenges the majority discussed, is that the majority did not deem the dissent's point to be at issue, since the claim forwarded there was not that alternative plans showed that the final plan was contrary to law, but that some appellants alleged that they had "preferable" or "better" plans.
In short, neither the Court's opinion nor Justice Nix's dissent in In re 1981 Plan remotely supports the LRC's contention that this Court has, in prior opinions, limited its scope of review to the four corners of the Final Plan. Moreover, the notion is particularly unsustainable because the LRC itself does not abide by it. Rather, the LRC repeatedly looks outside the four corners of its Final Plan to defend against the instant challenges; indeed, a core position of the LRC, which we discuss below, is that this Final Plan is lawful because it stands up well when measured against prior plans which survived discrete constitutional challenges. In arguing that other, alternate plans are relevant proof of the infirmity of the 2011 Final Plan, the appellants do no less than the LRC does.
This Court is not required to "reverse [sic] four decades of precedent" as the LRC claims, LRC Brief at 30, to hold that alternate plans may help to prove constitutional infirmity, because the LRC reads into our cases a restriction on the scope of review that does not exist and is contrary to settled notions of litigation and judicial review. It necessarily follows that the
Nor does our holding diminish our recognition that the Constitution placed the task of devising a redistricting plan within the bailiwick of the partisan leadership of the legislative branch, in recognition of the General Assembly's "expertise in reapportionment matters." In re 1981 Plan, 442 A.2d at 665. But, equally true is that the same provision of the Constitution placed the task of resolving appeals alleging that the LRC's Plan is "contrary to law" within the bailiwick of the judicial branch, in recognition of this Court's expertise in these such matters. The retention of legislative expertise is accomplished by the fact that the Constitution prescribes remand to the LRC if a Final Plan is found to be contrary to law. We, therefore, reject the LRC's foundational and pervasive argument that we have already adopted, or should adopt, a scope of review that limits our consideration to the four corners of the Final Plan. Our scope of review in these appeals is plenary, subject to the restriction, recognized in Albert, that a successful challenge must encompass the Final Plan as a whole, and the recognition in our prior cases that we will not consider claims that were not raised before the LRC. In re 1981 Plan, 442 A.2d at 666 n. 7. This entails consideration of all relevant evidence, and legal authority, that a Final Plan is contrary to law.
2. Standard of Review
On appeal from a Final Plan, the plan may be found to be unconstitutional only if the appellant establishes that it is "contrary to law." PA. CONST. art. II, § 17(d) ("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...."). The primary "law" at issue consists of the constitutional imperatives set forth in Section 16. PA. CONST. art. II, § 16 (number of districts; compact and contiguous territory; districts as nearly equal in size as practicable; no divisions of county, city, incorporated town, borough, township or ward, unless absolutely necessary). The appeals sub judice present precisely such challenges. The proper construction of constitutional language (or statutory language for that matter) is a question peculiarly suited to the judicial function. The task involves purely legal questions, framed by settled rules of interpretation. Such issues of law typically are subject to de novo or plenary review, and indeed the parties agree that our review is non-deferential. Generally, in conducting de novo review, this Court corrects legal errors without deference to the judgment of the tribunal, agency, or other entity whose determination is challenged, as to the constitutionality of its actions. Pennsylvania Tpk. Comm'n v. Commonwealth, 587 Pa. 347, 899 A.2d 1085, 1094 (Pa.2006) (constitutional challenge poses question of law; therefore, review is plenary and non-deferential); Pap's A.M. v. City of Erie, 571 Pa. 375, 812 A.2d 591, 611 (Pa.2002) (this Court's decision is final word on meaning of Pennsylvania Constitution); see also Hertz Drivurself Stations v. Siggins, 359 Pa. 25,
Notwithstanding its recognition that our standard of review ultimately is de novo, the LRC suggests, throughout its brief, that our review in fact is constrained both by the legislative nature of the LRC's task and our prior precedent. Respecting the first point, the LRC essentially asks that we review the constitutionality of the Final Plan in accordance with the standards applicable to acts of the General Assembly. A statute, of course, is generally entitled to a strong presumption of constitutionality. The presumption "reflects on the part of the judiciary the respect due to the legislature as a co-equal branch of government." Sch. Dists. of Deer Lakes & Allegheny Valley v. Kane, 463 Pa. 554, 345 A.2d 658 (Pa.1975).
However, as the Holt appellants note, the LRC is composed of four leaders of the General Assembly, and is not the General Assembly itself. The Holt appellants thus argue that the Final Plan is not entitled to the same presumption of constitutionality that is accorded to bills adopted by a majority of duly elected representatives to the General Assembly and signed by the Governor into law. Appellants urge the Court to avoid an "unduly passive role" in reviewing the LRC's Plan. Holt Brief at 26-27 (quoting Albert, 790 A.2d at 1000 (Saylor, J., concurring, joined by Castille and Eakin, JJ.)).
We agree with the Holt appellants that a Final Plan approved by the LRC is not entitled to a presumption of constitutionality. First of all, nothing in Article II, Section 17 requires such deference. The LRC's task certainly affects the Legislature, and the essence of the task may be legislative in nature.
Respecting the second point, the LRC states that it has viewed this Court's prior decisions passing upon redistricting challenges as setting guideposts for acceptable levels of population deviation and political subdivision splits. The LRC argues that its Final Plan should be measured against prior plans "approved" by this Court. In the LRC's view, a Plan that measures favorably with (i.e., one that does not drastically depart from) past redistricting plans necessarily must be approved. The LRC argues that allowing a redistricting plan to be proved "contrary to law" by comparing it to proffered alternative plans invites an interminable search for the "better" or "best" plan, that would "create a jurisprudence of doubt and render future [legislative reapportionment commissions] unable to rely on precedent [to] draft a reapportionment plan with any confidence in its constitutionality." LRC Brief at 32-33. The LRC decries such an approach as leaving redistricting to a computer rather than to "the duly-appointed members of the [LRC]." id. at 31 n. 16; 790 A.2d 989.
The Holt appellants respond that the Final Plan is reviewed by the Court to ensure that it is not contrary to law—a burden upon challengers that, in appellants' view, is not heavy. According to appellants, if a Final Plan "ignores a legal mandate ... without explanation and justification in the law," the Plan is contrary to law. Holt Brief at 11. The Holt appellants distinguish our prior redistricting cases and argue that "[t]his Court's approval of prior reapportionment plans has no bearing on the present [appeal]." Id. at 25; 790 A.2d 989.
Thus, the LRC concludes that our de novo review is to be constrained by the specifics of prior reapportionment plans "approved" by the Court. In essence, the LRC understands our prior decisions as pre-approving the levels of population deviation and the number of split political subdivisions that were "approved" in prior redistricting appeals. In contrast, appellants understand the governing "law" to mean applicable constitutional and statutory provisions and on-point decisional law, such as Albert. We agree with appellants.
The Constitution neither authorizes nor requires this Court to engage in its own de novo review of redistricting plans in order to assure that all constitutional commands have been satisfied. Thus, our prior "approvals" of plans do not establish that those plans survived not only the challenges actually made, but all possible challenges.
It is significant that the Constitution does not always require this Court's imprimatur before a redistricting plan can become final: if "the last day for filing an appeal has passed with no appeal taken," the Final Plan automatically attains "the force of law." PA. CONST. art. II, § 17(e). This Court has a role if, and only if, a citizen or citizens file an appeal from the Final Plan. See PA. CONST. art. II, § 17(d)-(e). Unlike some other states,
In short, the current Final Plan is not insulated from attack by decisions of this Court finding prior redistricting plans constitutional, unless a materially indistinguishable challenge was raised and rejected in those decisions.
Indeed, the Court has shied away from such broad pronouncements, which would be in the nature of obiter dicta. Thus, in In re 1981 Plan, in addressing the substantial equality of population challenge before the Court, the Court noted that it was not the judiciary's responsibility to decide "the precise mathematical formula to be applied in dividing the population of the state among legislative districts" and rejected as invalid the premise that any "predetermined percentage deviation [existed] with which any reapportionment plan [had to] comply." 442 A.2d at 667. The Court also expressed the concern that setting a predetermined population equality standard "might well interfere with the [redistricting c]ommission's ability to achieve the goals of compactness and preservation of subdivision lines." Id. at 667-68.
In its redistricting jurisprudence, this Court has not purported to 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. The LRC's reliance on prior cases as creating an expectation that its Final Plan would be found constitutional, is untenable. The "guideposts" to which a redistricting commission is bound are the U.S. Constitution, the Pennsylvania Constitution, and this Court's relevant, specific holdings. We do not doubt that the LRC made a good faith effort to fit the population deviation and political subdivision splits in the current Final Plan within the factual parameters
B. Burden of Proof
The parties' dispute regarding the burden of proof is relatively diffuse but nonetheless important. The LRC's position is that appellants have the burden to demonstrate that the plan is contrary to law. LRC Brief at 15 (citing In re 1991 Plan, 609 A.2d at 136). The LRC notes that, unlike other state charters, our Constitution does not authorize this Court to automatically review a redistricting plan, irrespective of any objections or challenges, or to adopt rules for the production and presentation of evidence in support of the plan. See LRC Brief at 33-34 n. 18 (comparing PA. CONST. art. II, § 17(d) with COLO. CONST. art. V, § 47(2)). Accordingly, in the LRC's view, the burden is not on the redistricting commission, as in those other jurisdictions, where the commission's actions are more closely and automatically scrutinized. Id.
Several appellants argue that the LRC either is or should be required to explain or justify aspects of the Final Plan. Thus, the Holt appellants argue that the Final Plan violates the Constitution "by failing to offer any `specific explanation for why the constitutional prerequisites of compactness and respect for political subdivisions cannot be accommodated simultaneous [sic] with the maintenance of substantial equality of population and enforcement of voting interests of protected groups in the manner prescribed by federal law.'" Holt Brief at 24 (quoting Albert, 790 A.2d at 1000 (Saylor, J., concurring)). Appellants in Costa suggest that the LRC should be required to "offer some demonstration of `necessity'" once an alternative plan is offered that identifies unnecessary subdivision splits. According to the Costa appellants, the LRC should have justified each division or eliminated such division from the Final Plan, rather than relying on generic assertions that respect for subdivision boundaries could not be accommodated. Costa Brief at 32. In a similar vein, but with a more direct approach, the Schiffer appellants ask the Court to consider alternate plans as prima facie proof that a particular political subdivision split was not absolutely necessary; the burden would then shift to the LRC "to show cause why [the Final P]lan was absolutely necessary." Schiffer Brief at 10.
On this point, we agree with the LRC. The plain language of the Constitution requiring appellants to establish that the Final Plan is contrary to law does not leave the door open for a shift of the burden of production or persuasion to the LRC. Moreover, the assignment of the burden of proof to the appellants is consistent with the rest of the Section 17 process, including the provision that the Final Plan shall have the force of law if no appeal is taken. PA. CONST. art. II, § 17(e).
The LRC may, of course, respond to the challengers' allegations in the briefing process, offering explanations for its various decisions, as it has done in some instances here. In addition, the LRC may want to consider a process in its development of a Final Plan where it provides explanations, or responds to objections; whether to do so, however, would appear to be a matter reposed in its discretion. But, shifting the burden of proof is unnecessary. The burden is squarely on appellants, in accordance with the constitutional mandate; and the LRC has a full opportunity,
V. The Governing Law
In the Pennsylvania redistricting scheme, the LRC has a constitutional duty to formulate a Final Plan that complies with law. Considerable discretion is reposed in the LRC to accomplish this task, which requires a balancing of multiple mandates regarding decennial districting, derived from federal and state law, most of which are of organic, constitutional magnitude. The central difficulty of the LRC's task arises not only because of the political and local interests that are affected by any change in the existing scheme, but also because accommodating one command can make accomplishing another command more difficult.
The operative mandates under Article II, Section 16 are to devise a legislative map of fifty senatorial and 203 representative districts, compact and contiguous, as nearly equal in population "as practicable," and which do not fragment political subdivisions unless "absolutely necessary." Although all of these commands are of Pennsylvania constitutional magnitude, one of the factors, that districts be "as nearly equal in population as practicable," also exists as an independent command of federal constitutional law, including decisional law which changes and evolves. Commonwealth ex rel. Specter v. Levin, 448 Pa. 1, 293 A.2d 15, 18 (Pa.1972) ("Specter") (citing U.S. CONST. amend. XIV, § 1 ("No State shall ... deny to any person within its jurisdiction the equal protection of the laws.")).
A. The Federal Overlay of Redistricting
Although state legislative redistricting is primarily a question of state law, the federal equal protection overlay is of substantial effect, and it indeed has significantly affected our decisional law under Article II, Section 16. Familiarity with the background and interplay is important to understanding the issues before us.
In Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946), three Illinois voters challenged the extant Congressional district apportionment in that state as invalid under federal apportionment statutory law and the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. The appellants argued that the apportionment scheme no longer provided sufficient representation for urban areas where population had expanded significantly during the course of the twentieth century, while rural areas that had lost population retained representative power that increasingly outstripped their declining populations. The High Court declined to engage itself, finding "this issue to be of a peculiarly political nature and therefore not meet for judicial determination.... It is hostile to a democratic
Concurring in the Colegrove result, Justice Rutledge wrote: "There is not, and could not be except abstractly, a right of absolute equality in voting. At best there could be only a rough approximation." Id. at 566, 66 S.Ct. 1198 (Rutledge, J., concurring). In dissent, Justice Black, joined by Justices Douglas and Murphy, pointed out that the Illinois districting scheme at issue had been established in 1901 and included Congressional districts ranging in population from roughly 100,000 to 900,000; but the legislative authorities in the state benefitted from the scheme and therefore ensured perpetuation of inequitable apportionment. The dissent viewed the facts presented as "a wholly indefensible discrimination" forbidden by the Equal Protection Clause, which the dissent would have found to be the basis of a cognizable cause of action. Id. at 566-74, 66 S.Ct. 1198 (Black, J., dissenting).
In 1960, the High Court decided Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960), a case primarily involving the right to vote secured by the Fifteenth Amendment. Writing for a unanimous Court, Justice Frankfurter rejected the position of city and county authorities that claims of blatant racially discriminatory redistricting in Tuskegee, Alabama, fell within the discretionary power of local government. Although recognizing that political power was at issue, the Court held that when "the inescapable human effect of this essay in geometry and geography is to despoil [citizens] of their theretofore enjoyed voting rights," the matter entered the constitutional sphere and could be subject to judicial disposition. Id. at 347-48, 81 S.Ct. 125. Later, in 1962, Colegrove was largely negated in the landmark decision in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), where the Court held that allegations that a state apportionment action deprived voters of equal protection of the laws in violation of the Fourteenth Amendment were justiciable and therefore within the sphere of judicial engagement. What followed was as new and dynamic in the voting rights sphere as was the Warren Court's contemporaneous revolution of criminal procedure throughout the land.
Shortly after Baker v. Carr, the Court developed the concepts of "one person, one vote" and the "equal population principle." The language first arose in Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), where the Court disapproved Georgia's use of a "county unit system" to count votes in primary elections for certain statewide offices. The Court found that Georgia's weighting of each county's votes equally, regardless of population differential, violated equal protection, memorably noting that: "The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments, can mean only one thing—one person, one vote." Id. at 381,
Gray was not an apportionment case, however, and Wesberry addressed federal Congressional districting issues. The two concepts of "one person, one vote" and the "equal population principle" became woven together in the state legislature apportionment context in the Court's landmark decision in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). In Reynolds, the Court addressed an equal protection challenge to proposed plans for reapportionment of both houses of the Alabama Legislature. The facts in Reynolds revealed that due to decades of non-reapportionment, for example, rural counties having as low as 13,462 in total population retained two seats in the Alabama House, but Mobile County, which includes the City of Mobile and had a total population exceeding 300,000, was allotted only three seats. The federal district court concluded that the scheme in Alabama led to disparities in which votes in less-populated rural senatorial districts were effectively "worth" fifteen to twenty times as much as votes cast in more densely populated and rapidly urbanizing districts. In an 8-1 opinion by Chief Justice Warren, the Court held: "Population is, of necessity, the starting point for consideration and the controlling criterion for judgment in legislative apportionment controversies.... The Equal Protection Clause demands no less than substantially equal state legislative representation for all citizens...." Id. at 567-68, 84 S.Ct. 1362.
Having so concluded, the Court held that, to ensure the right of voters to have their votes "weighted equally," each house of a state legislature must be apportioned on what the Court termed "a population basis": "[T]he Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable." 377 U.S. at 577, 84 S.Ct. 1362. While recognizing that absolute or exact equality of population would be impossible, the Court expressed that apportionment schemes must still be based "substantially" on the principle of population equality, which was not to be "diluted in any significant way" by a given plan. Id. at 578, 84 S.Ct. 1362.
But, the Reynolds Court recognized that the task was not so simple. Thus, the Court continued that, within limits, a State's desire to maintain the integrity of various political subdivisions and to provide for compact districts of contiguous territory is a legitimate and constitutionally valid countervailing interest. The Court noted that, "[i]ndiscriminate districting, without any regard for political subdivision or natural or historical boundary lines, may be little more than an open invitation to partisan gerrymandering." Id. at 578-79, 84 S.Ct. 1362. To allow for achievement of legitimate goals such as subdivision integrity in apportioning state legislative districts, the Court held that some deviations from the equal population principle
Again, however, the jurisprudence, which evolved through case-specific challenges, was dynamic. Not long after Reynolds, the Court began to express a less restrictive approach to the population equality principle when certain countervailing circumstances were presented. Thus, in Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971), the Court considered a plan to reapportion Rockland County in New York State. When compared with ideal population equality for each of the five districts within the county, the total deviation amounted to 11.9%. Writing for the Court, Justice Marshall reiterated that population equality remained crucial, but opined that "the particular circumstances and needs of a local community as a whole may sometimes justify departures from strict equality." Id. at 185, 91 S.Ct. 1904. Later, in Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973), the Court reviewed and upheld a plan created by the Virginia state assembly to reapportion both of its legislative houses in which political subdivisions were largely left intact, but the total deviation from ideal population equality was 16.4% in the Virginia House of Delegates. The Court recognized that "broader latitude" may be permissible in state apportionment matters, when considerations such as the integrity of political subdivisions are at issue: "The State can scarcely be condemned for simultaneously attempting to move toward smaller districts and to maintain the integrity of its political subdivision lines." Id. at 322, 327, 93 S.Ct. 979. Notably, in a footnote, the Mahan opinion described maintenance of subdivision integrity and providing for population equality as a "dual goal" that the Virginia plan managed to satisfy on both counts. Id. at 328 n. 9, 329, 93 S.Ct. 979.
Finally, in Gaffney, supra, the Court considered a reapportionment plan based on 1970 census data and prepared by an eight-member bipartisan commission and then a three-member board, both of which were appointed by the leadership of Connecticut's General Assembly. The Connecticut state Constitution provided that within the bounds of federal constitutional standards, division of towns (Connecticut's basic unit of local government) with regard to state house districts was not permitted except in narrow express circumstances. The Court critiqued apportionment approaches that would slavishly labor under an "unrealistic overemphasis on raw population figures" such that relevant and legitimate factors and interests that states must account for are submerged. 412 U.S. at 749, 93 S.Ct. 2321. The Court stressed that the work of state apportionment authorities tasked with state legislative redistricting need
Subsequent cases handed down on this issue by the High Court have not established any rigid standards as to what level of deviation from absolute population equality violates the Equal Protection Clause; the analysis is fact specific.
B. Pennsylvania Law
1. The Legal Landscape before the U.S. Supreme Court's Equal Protection Decisions
Apportionment has been part of Pennsylvania's constitutional apparatus as far back as the first state Constitution following independence, which was adopted in 1776 during the American Revolution. The prior, provincial arrangement had resulted in the longer-established eastern and coastal areas of Pennsylvania enjoying over-representation at the expense of the less populated but rapidly growing western portions of the state; the new arrangement recognized and rectified this imbalance by adding new western representatives and setting forth the principle that apportionment be derived in proportion to taxable inhabitants. See generally Gormley, Legislative Reapportionment, at 4-6. Respecting the Pennsylvania Senate, as early as the Constitution of 1790, and carried forward into the Constitutions of 1838 and 1874, was a requirement respecting the integrity of political subdivisions, at least at the County level: "neither the city of Philadelphia nor any county shall be divided in forming a district." 1790 PA. CONST. art. I, § 7; 1838 PA. CONST. art. I, § 7 (as amended). The task of reapportionment fell to the legislature.
The 1874 Pennsylvania Constitution shifted the measure of proportionality from taxable inhabitants to total population, while the task of reapportionment remained in the hands of the General Assembly, which was newly required to conduct a reapportionment after each U.S. decennial census. 1874 PA. CONST. art. II § 18. The section on apportionment of the Senate mandated that: "The State shall be divided into fifty senatorial districts of compact and contiguous territory, as nearly equal in population as may be, and each district shall be entitled to elect one Senator." 1874 PA. CONST. art. II, § 16. Section 16 also required respect for the integrity of political subdivisions: "No ward, borough or township shall be divided in the formation of a district." Id. The provision respecting apportionment of the House was considerably more complicated, but included mandates respecting proportional
2. This Court's Response to Reynolds and the 1968 Constitutional Revisions
In the wake of the then-recently issued Reynolds decision, this Court first addressed state legislative apportionment in Butcher v. Bloom, 415 Pa. 438, 203 A.2d 556 (Pa.1964) ("Butcher I"). The unanimous decision by Justice Roberts noted the high stakes at the outset:
Id. at 559-60.
We then found that the General Assembly's apportionment legislation of 1964 contained such dramatic deviations from the goal of substantially equal population, as newly announced by the U.S. Supreme Court, among both Senate and House districts, that the apportionment violated the Fourteenth Amendment. Id. at 564, 567. Part of the problem with the 1964 plan, as explained by this Court, was the vestigial practice of allocating at least one representative to each county in the state regardless of the county's population. Relying on language in Reynolds, this Court held that the historic practice could no longer continue because it so clearly resulted in unequal representation dynamics in both state houses: "[A]ssignment of one seat to each county, regardless of population, results in the submergence of population as the controlling consideration
Id. at 570-71.
Time constraints precluded the Butcher I Court from fashioning any remedy with regard to the 1964 plan. The Butcher I Court's solution was to direct that the 1964 elections proceed under the infirm legislation, retain jurisdiction, and direct the General Assembly to correct course and devise a constitutionally valid plan for the 1966 election cycle no later than September 1, 1965. Id. at 573. The General Assembly failed to enact a plan, and so this Court found itself obliged to reapportion the Commonwealth on its own. We did so by a 4-3 vote in Butcher II, in 1966. See 420 Pa. 305, 216 A.2d 457 (per curiam). In explaining the plan, the per curiam opinion in Butcher II reiterated the balancing of multiple mandates required in redistricting: "Our primary concern has been to provide for substantial equality of population among legislative districts. At the same time, we have sought to maintain the integrity of political subdivisions and to create compact districts of contiguous territory, insofar as these goals could be realized.. . ." Id. at 459. Justice Roberts, the author of Butcher I, wrote in partial dissent, objecting to the House plan on federal constitutional grounds, i.e., "based primarily on its failure to observe the equal population principle and other guidelines mandated by the controlling decisions of the [U.S.] Supreme Court . . . and set forth in our earlier opinion in this case." Id. at 474 (Roberts, J., dissenting in part).
Perhaps the most significant byproduct of the Butcher decisions is that they led to the Court's experiencing firsthand the difficulties of reapportionment, and particularly in a legal landscape requiring adjustment to account for newly-developing federal law.
Following the difficulties manifested in the Butcher cases, and the significant developments taking place in the U.S. Supreme Court, the question of reapportionment emerged as a main issue in Pennsylvania's 1968 Constitutional Convention; the constitutional provisions on reapportionment were significantly revised; and the new Constitution, with these and other changes, was approved by Pennsylvania voters. Among the innovations of the 1968 Constitution respecting redistricting was a determination to remove the responsibility from the General Assembly as a whole, and to repose the authority in the LRC. An entirely
In this Court's first redistricting decision after the adoption of the new constitutional scheme, we described the new Commission as follows:
Specter, 293 A.2d at 17-18 (footnotes omitted).
As to the other provisions under the new scheme, the guiding principles respecting compactness, contiguity, and respect for the integrity of political subdivisions not only have deep roots in Pennsylvania constitutional law, but, as noted in our discussion of federal law, also have been specifically recognized by the federal courts, beginning with Reynolds, as legitimate interests that may properly be considered in redistricting state legislatures, even as against federal equal protection challenges. Moreover, the commands represent important principles of representative government. As one of the pro se appellants herein has noted: "The requirements of contiguous and compact districts go beyond geographical concern and also embrace the concepts of homogeneity of the district in order to facilitate the functioning of a representative form of government." Baylor Brief at 9. Baylor goes on to note the central and historical role of counties in Pennsylvania as building blocks that are not to be fractured. Id. at 11-12.
It is true, of course, that redistricting has an inevitably legislative, and therefore an inevitably political, element; but, the constitutional commands and restrictions on the process exist precisely as a brake on the most overt of potential excesses and abuse. Moreover, the restrictions 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. In an article concerning racial issues presented in redistricting cases, Dean Gormley has explained the importance of the restrictions, as follows:
Gormley, Racial Mind-Games and Reapportionment, 4 U. Pa. J. Const. L 735, 779-81 (2002) (footnotes omitted).
3. Reapportionment Decisions under the Current Constitutional Scheme
The new constitutional redistricting scheme came into play two years later, after the 1970 census. Eighteen appeals were filed from the 1971 LRC's Final Plan, and this Court found the plan to be constitutional by a 4-3 vote, with Justice Roberts authoring the majority opinion, a mere six years after the Court itself had devised a reapportionment plan. Specter, 293 A.2d at 19. Perhaps inevitably given the newness of the federal (and now state constitutional) command for districts as nearly equal in size as practicable, the Specter majority focused primarily on population divergences, as measured by federal law.
Nevertheless, Specter emphasized that Reynolds still counseled that, in any reapportionment scheme, "the overriding objective must be substantial equality of population." Id. (quoting Reynolds, 377 U.S. at 579, 84 S.Ct. 1362). Given that fact, we noted that "it is not constitutionally permissible to
Turning to the plan under review, the Specter Court noted that, since our decision in Butcher II, the U.S. Supreme Court had issued additional decisions striking down reapportionment plans in two cases involving congressional redistricting. See Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969) and Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1239, 22 L.Ed.2d 519 (1969). In those cases, the High Court had found that the states' expressed desire to avoid fragmenting political subdivisions did not justify departures from the population equality requirement. The Specter Court recognized that the new decisions did not involve state legislative reapportionment. We also recognized that "Kirkpatrick's rejection, in Congressional redistricting, of the maintenance of the boundaries of political subdivisions as a justification for deviations from absolute population equality, cannot be applied in full force to state legislative reapportionment." Specter, 293 A.2d at 20. Nevertheless, we viewed the decisions as "indicat[ing]" that "deviations from equality of population that were formerly regarded as insubstantial and permissible will now be regarded as substantial and impermissible, necessitating a closer adherence to equity of population, even in the area of state legislative apportionment." Id. Our analysis in this regard reflects that, no matter how static the governing constitutional language is, the federal decisional law that must be accounted for is fluid and dynamic.
Ultimately, the Specter Court upheld the 1971 Final Plan, noting, among other things, that: "No decision of the United States Supreme Court or of this Court has ever invalidated a reapportionment plan with population deviations as minimal as those occasioned by the Commission's plan, and we believe that the deviations clearly do not dilute the equal-population principle `in any significant way.' We conclude therefore that the Commission's plan fully achieves the constitutionally-mandated overriding objective of substantial
Finally, the Specter Court concluded that the 1971 Final Plan also met the constitutional elements of compactness and contiguity. Id. at 23-24. On the question of compactness, we emphasized that:
Id. at 24.
In 1981, this Court approved the second reapportionment under the 1968 constitutional scheme, again by a 4-3 vote. In re 1981 Plan, 442 A.2d at 663. Justice Roberts, again writing for the majority, interpreted Specter as holding that "as a matter of both federal and state law, equality of population must be the controlling consideration in the apportionment of legislative seats." Id. at 665 (citing Reynolds, 377 U.S. at 577, 84 S.Ct. 1362). Like the Specter Court, the In re 1981 Plan Court began by examining population deviations, and concluded that the 1981 Final Plan passed constitutional muster: "There is no doubt that this plan, which more nearly achieves the goal of equal population than did the 1971 reapportionment plan in Specter, satisfies equal protection requirements." Id. at 666, 293 A.2d 15. Indeed, "the final plan achieves an equality of population among legislative districts closer to the constitutional ideal of `one person, one vote' than any previous reapportionment plan in the history of the Commonwealth." Id.
The In re 1981 Plan Court then turned to the various specific challenges brought by the appellants. First, the appellants claimed that the plan went too far in pursuing the constitutional goal of "one person, one vote," and in so doing failed to satisfy the requirements of compactness and respect for the integrity of political subdivisions. Specifically, the appellants argued that district deviations from compactness and subdivision boundaries were constitutionally permissible "only if those deviations are absolutely necessary to survive federal equal protection analysis." Id. The Court rejected the notion that these concerns were of equal value to population equality, and stated that "
Similarly, we rejected the theory that we should review the 1981 Final Plan and determine whether there was a standard of population deviation greater than that adopted by the Commission, but less than the maximum deviation permitted under federal law, "which would more closely achieve the goals of compactness and undivided political subdivisions." We noted that our task was "not to substitute a more `preferable' plan for that of the Commission, but only to assure that constitutional requirements have been met." Id. (citation omitted).
Turning to the particulars of the 1981 Plan, the Court began by stressing federal authority that, "`in determining whether a good faith effort to establish districts substantially equal in population has been made, a court must necessarily consider a State's legislative apportionment scheme as a whole.'" Id. at 668, 293 A.2d 15 (quoting Lucas, 377 U.S. at 735 n. 27, 84 S.Ct. 1459). We then concluded that the 1981 Plan "reflects a constitutionally permissible judgment on the part of the Commission that the deviations from mathematical compactness and political subdivision boundaries contained in the plan are necessary to achieve the overriding constitutional goal of districts `as equal in population as practicable.'" Id. We elaborated by noting the inevitability that certain counties and municipalities would have to be split; the relatively small number of subdivision splits; and that none of the arguments by the appellants convinced the Court that the drawing of district lines was based on impermissible considerations. Disapproving of specific, localized challenges, the Court noted that "[m]ere dissatisfaction with the fact that certain political subdivisions have been divided or have been included within particular legislative districts is not sufficient to invalidate the Final Reapportionment Plan as unconstitutional." Id.
By the time of this Court's third reapportionment review, in 1992, our focus on population equality diminished somewhat, perhaps because of our decisional law establishing the primacy of the principle, and perhaps also because of advances in useful computer technology. In his account of the 1991 reapportionment, Dean Gormley recounts that:
Gormley, Legislative Reapportionment, at 18. Gormley recounts that, cognizant of the "super-emphasis" on population equality, the 1991 LRC was armed with tools that could achieve increasingly "ideal" districts, but still sought to remain flexible when faced with additional reapportionment factors, such as those set forth in Section 16, and the belief in the propriety of attempting to achieve political "fairness" by maintaining, to a practicable degree, the parties' existing balance of power. Id. at 26-27, 45-47.
In a decision resolving twenty-five appeals, this Court upheld the 1991 Final Plan, without dissent, in an opinion by Mr. Chief Justice Nix. In re 1991 Plan, 609 A.2d at 147. The Court spent little time dismissing challenges, similar to those raised ten years before, that the imperative of population equality "is not so important that it warrants the division of counties and other political subdivisions." Id. at 138. As in 1981, this argument was premised upon decisions of the U.S. Supreme Court, rendered after Reynolds, which had upheld state reapportionment plans with, by this point in time, variances of up to 16%. Id. at 138-39 & n. 6 (citing, inter alia, Brown v. Thomson, 462 U.S. 835, 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983) (plan with average deviation of 16%)). From that federal authority, the appellants argued that "these cases bind this Court to require greater population variances to protect the sanctity of political subdivision borders." Id. at 138. We disagreed:
609 A.2d at 138-39 (citation omitted and italics in original).
As the text of Article II, Section 16, and our review of our prior reapportionment cases above makes clear, the In re 1991 Plan Court's statement that "Our Constitution requires that the overriding objective of reapportionment is equality of population," is not correct as a textual matter. That "overriding objective," as articulated in our 1972 and 1981 decisions, derived from this Court's interpretation of federal law, and in particular Reynolds, and our effective treatment of that law as coterminous with Pennsylvania's population equality requirement. However, the In re 1991 Plan Court certainly was correct that our two prior decisions had established the primacy of equality of population, in large part in an effort to ensure that Pennsylvania plans complied with federal law.
In 2002, this Court, in a unanimous decision by Mr. Chief Justice Zappala, approved the 2001 Final Plan, based upon
Turning to the specific claims raised, the Albert Court noted that the challengers asserted that the new districts were "not composed of compact and contiguous territory as nearly equal in population as practicable because, in creating the plan, political subdivisions were divided where it was not absolutely necessary." 790 A.2d at 995. We further noted, however, that the challengers had focused "primarily on the impact of the plan with respect to their particular political subdivision, rather than analyzing the plan as a whole, as is required under a proper constitutional analysis. This will become apparent as the individual petitions are addressed." Id. The Court then reviewed in some detail the specific, localized complaints of the various appeals, which cited to specific subdivisions and districts and forwarded various complaints including compactness, contiguity and unnecessary subdivisions. After briefly summarizing the 2001 LRC's response, we again emphasized that the focus had to be on the plan as a whole and not on individual districts: "The Commission persuasively argues that none of the appellants ha[s] met the heavy burden of establishing that the final plan, as a whole, is contrary to law." Id. at 996-98.
More specifically, the Albert opinion credited the 2001 LRC's argument that various claims failed as conclusory or vague; and that the 2001 Final Plan "compares favorably" to prior plans the Court had approved in terms of population deviation. Id. at 998. Respecting the various complaints about particular districts being split unnecessarily, the Court also credited the 2001 LRC's averments that: the overriding objective was equality of population; other factors causing subdivision splits resulted from Voting Rights Act requirements and population shifts; the 2001 Plan compared "favorably" to prior plans "found to be constitutional by this Court"; and the number of political subdivisions split remained relatively small. Id. at 999. Finally, we rejected individual pleas premised upon particular subdivision splits, as follows: "The appellants urge us to consider the `homogeneity' and `shared interests' of a community as guidelines. We believe that these concepts are too elastic and amorphous, however, to serve as a judicial standard for assessing the reapportionment process. As the appellants' arguments indicate, these concepts often reflect nothing more than continuation of the pre-existing legislative districts. Should community interests be fostered merely by residing in the same district, we have no reason to believe that the current reapportionment of the legislative districts will not achieve this result with the passage of time." Id.
In a joining concurrence, Mr. Justice Saylor, joined by Mr. Justice Eakin and this author, although agreeing that the 2001 Plan was consistent with our prior precedent, nevertheless expressed the following concern:
Id. at 1000 (Saylor, J., concurring).
VI. The Global Challenges: Holt and Costa
Our holding that the global challengers have proven that the 2011 Final Plan is contrary to law follows almost inexorably from the global nature of their challenge—global in the sense that it challenges the entire 2011 Final Plan—and our holdings above concerning the scope and standard of review. This is so because the LRC has premised its central defense against these global challenges upon its position on the judicial review points. As noted, our last redistricting decision, in Albert, rejected a number of appeals posing various localized challenges to the 2001 Final Plan, and emphasized, consistently with our prior decisions, that a successful appellant must challenge a final plan as a whole. Albert, 790 A.2d at 995-96; accord In re 1981 Plan, 442 A.2d at 667-68. No challenger did so in Albert, and insofar as our prior Opinions in this area reflect, no challenger did so in the redistricting litigation in 1972, 1981, or 1992, either.
The LRC drew one lesson from Albert, while the Holt and Costa appellants drew a very different lesson. The LRC emphasized in its brief and at oral argument that, in developing the 2011 Final Plan, it heeded and attended to the concurrence's concerns, thus addressing complaints (ultimately unsuccessful in Albert) arising from the more objectionable aspects of the 2001 Plan. (The specifics of this point are unimportant; the point is not disputed.) The LRC also emphasized that, as to certain (but not all) other particulars (population deviation and the numbers of political subdivisions unaffected by splits), its Plan compared favorably to prior plans. We do not doubt the accuracy of the LRC's account of its endeavor, motivation, and results in this regard; nor do we doubt that its actions would suffice if faced with the same sorts of localized challenges that were pursued unsuccessfully in 2002, respecting compactness, contiguity, and curious subdivision splits.
The appellants in Holt and Costa, however, recognizing that prior redistricting challenges failed precisely because they were localized and piecemeal, attended to the Albert Court's central rationale and holding, and its implicit warning to the next LRC, that different considerations, and results, might obtain if a Final Plan were to be challenged as a whole. No doubt assisted by advances in computer technology that certainly would not have been available to redistricting challengers in 1972 and 1981, the Holt and Costa appellants offered challenges to the 2011 Final Plan
In the past, this Court has dismissed redistricting objections which failed to offer "any concrete or objective data" and relied instead on "conclusory" allegations and dictionary definitions to support claims of constitutional violations. Specter, 293 A.2d at 24. The Holt and Costa appellants have not made this error; they have produced, and they submitted to the LRC, detailed plans deriving from concrete data, data also used by the LRC, to support their assertions that the pervasive political subdivision splits in the Final Plan were not "absolutely necessary." Notably, the particulars of these alternative plans have not been materially contested by the LRC.
For purposes of explication, in examining whether the 2011 Final Plan is contrary to law, we will focus primarily on the evidence represented by Holt's alternative plan.
The Holt appellants argue that the Final Plan is contrary to law because, as their alternate plan proves, while the Final Plan may comply with governing law respecting population equality, the Plan flouted independent and coexisting Pennsylvania constitutional mandates of compactness and contiguity of legislative districts, and respect for political subdivision boundaries.
The LRC primarily argues that alternative plans cannot be considered because they are outside this Court's scope of review or, alternatively, that the particular plans proffered as evidence are insufficient to prove that the Final Plan is contrary to law. The LRC's position rests upon assumptions about the scope and standard of review which we have rejected in Part IV of this Opinion. For example, we have rejected the LRC's claim, premised upon a misapprehension of our precedent, that alternative plans offered as evidence that a Final Plan is contrary to law are "irrelevant." We recognize that our prior decisions have made clear that the LRC is not obliged to accept an alternative plan merely because it appears to be, or is offered as, "better" than or "preferable" to the LRC's Plan. See In re 1981 Plan, 442 A.2d at 667; see also Part IV, supra. But, that is a very different point. These appellants do not claim that the LRC was obliged to accept their plans; they just offer those plans as proof that the LRC's Final Plan contained subdivision splits that were not absolutely necessary.
The LRC also levels an individual criticism at the Holt plan, complaining that, although this alternative achieves greater population parity overall, in some specific districts, the population equality deviation is greater than under the Final Plan.
To take the LRC's latter point first, in our discussion of the standard of review, we have already addressed the notion that this Court's "approval" of prior plans, as against certain discrete challenges, acts to pre-approve aspects of future plans, as against distinct, different challenges. Again, we do not doubt that this Final Plan is an improvement over the 2001 Final Plan. And, for all this Court knows, perhaps the 2001 Plan was the best that the technology then available could devise, respecting "absolutely necessary" splits. But, the 2001 Plan was not challenged as a whole, and like every other plan since 1971, it was not challenged with compelling,
Turning to the LRC's complaint that the Holt plan increases population deviation in some specific districts, even though it achieves greater population parity overall, we fail to see how this diminishes the power of the Holt plan as proof that the Final Plan was contrary to law. Our prior cases concerning population deviations have looked to overall ranges; indeed, the Holt plan, in this regard, seems to comport better with the LRC's primary focus upon population equality.
More fundamentally, we recognize that this Court's prior decisions emphasized equality of population as the primary directive in the redistricting efforts of the LRC. That mandate is unique because it is dually commanded by our charter and the federal Equal Protection Clause—an independent force, with contours that may change with each new relevant decision from the U.S. Supreme Court. Our prior decisions have gone so far as to recognize that, "if need be," the concerns for compactness and adherence to political subdivision lines must yield to the "overriding objective" of "substantial equality of population." See In re 1981 Plan, 442 A.2d at 666; Specter, 293 A.2d at 18-19 (quoting Reynolds, 377 U.S. at 579, 84 S.Ct. 1362). We have also stated that "if necessary, any political subdivision or subdivisions may be divided or combined in the formation of districts where the population principle cannot otherwise be satisfied." Specter, 293 A.2d at 25 (quoting Butcher I, 203 A.2d at 570-571). But, all of this Court's cases, going back to Butcher I, have specifically recognized that population equality is not the only command in redistricting. Every one of the cases has an important qualifier, such as "if need be," "if necessary," if the population principle "cannot otherwise" be satisfied. We have always recognized the independent vitality of the requirements of contiguity, compactness, and the integrity of political subdivisions. Moreover, none of the cases identify a population variation that must be achieved in redistricting; just as we did not require the LRC to expand population deviation to the outer limits that might be approved under federal law, In re 1981 Plan, 442 A.2d at 667, we also did not say that compression of population equality to the narrowest point of difference is required, at the expense of absolute, constitutional commands of compactness, contiguity and integrity of political subdivisions. The "practicable" modifier in the "as nearly equal in population as practicable" language necessarily leaves room for the operation of the other constitutional commands.
The Holt alternative plan avoided a highly significant percentage of political subdivision splits and fractures while maintaining a lower average population deviation from the ideal than the Final Plan. A concrete showing has been made that political subdivisions were split, even where the population was smaller than the ideal legislative district and a division was avoidable; and that the number of fractures across the Commonwealth was considerably higher in the Final Plan than the Holt plan proved was easily achievable. This powerful evidence, challenging the Final Plan as a whole, suffices to show that the Final Plan is contrary to law. While the LRC was not, and is not, obliged to adopt any of the alternate plans presented to it, it must devise a new plan upon remand.
Much focus, in the briefs, and at argument, has been placed on the level of proof required to show that a Final Plan is contrary to law, the fear being that "someone can always come up with a better plan." We need not determine a minimum level of
We likewise realize that the absence of certainty is a frustration for the LRC, a concern ably articulated by counsel. But, that is often the case when constitutional principles are at work, and particularly when competing constitutional principles apply. This is reflected in the U.S. Supreme Court's own fact-specific decisional law in the equal protection cases and the Voting Rights Act cases, all factors with which the LRC must contend. In Reynolds, the High Court spoke of the Equal Protection Clause requiring "that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable." 377 U.S. at 577, 84 S.Ct. 1362. We trust, too, in the good faith of the LRC to fashion a plan, upon remand, that comports with all of the requirements of Article II, Section 16.
Although we are satisfied that the Holt appellants have carried their burden of proving that the 2011 Final Plan is contrary to law premised on the existence of a significant number of political subdivision splits that were not absolutely necessary, like the Albert concurrence, we have additional concerns, and particularly respecting compactness, with this Final Plan. These issues may be a product of the excessive subdivision splits, and since we are remanding the matter, we offer the following commentary.
The obvious "compactness" issues with three particular Senate districts were noted by the Court at oral argument. Senate District 3 stretches—in the shape of a wish bone—from the far northeast section of Philadelphia down into North Philadelphia, and then up again into the Roxborough/Chestnut Hill area. Meanwhile, Senate District 35 reaches—like a crooked finger—from the southernmost border of Pennsylvania, north across two thirds of the Commonwealth, and contains all of Bedford County, all of Cambria County, a small portion of Somerset County, then enters Clearfield County, and finally crosses over into Clinton County. Perhaps less overt, but no less facially problematic in terms of compactness, was Senate District 15, described by the Court as an "iron cross," which reaches from North to South narrowly, and then East to West narrowly, to cover a third of York County, a third of Dauphin County, and to timidly reach into corners of Adams and Lancaster Counties. See Transcript of Oral Argument, 1/23/12, at 43-45, 70, 83-85. In response, the LRC explained that the reach of these districts—one of which is in the most densely populated area of the Commonwealth, Philadelphia—is justified by the primacy of the population equality concern. See, e.g., id. at 43, 790 A.2d 989 (LRC counsel
In light of our disposition, we do not decide or address at any great length the remaining appeals, and aspects of appeals, which focus on particular effects on specific political subdivisions. It is sufficient to reiterate, for reasons already explained, that we decline the invitation to revisit prior precedent requiring a successful appellant to challenge the plan as a whole, see n. 18, supra. We also note that the particular political subdivision fractures of which individual appellants complain may well be addressed by the LRC in its new plan upon remand. Having said this, 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. In the end, however, we recognize that the Pennsylvania Constitution permits absolutely necessary political subdivision splits, and that some divisions are inevitable. We do not mandate that the LRC avoid specific divisions, and leave the LRC to conduct its discretionary task within the limits set by the Constitution, reaffirmed above, and the prospective guidance we outline below.
The Court is satisfied that the Final Plan is contrary to law and, as our discussion above has revealed, there is no need to revisit or adjust our existing precedent to reach this conclusion. Nevertheless, as we will explain in Part VII below, we believe that prospective recalibration of certain of our precedents would be salutary and helpful in this unusual area of law, where the Court is called on to rule and speak only once every decade, and usually in circumstances that make it difficult to produce the most reasoned of expressions.
VII. Additional, Prospective Guidance for Remand
Several factors convince us that there would be some benefit in providing prospective guidance in the redistricting realm, even as to points not necessarily joined in this litigation. First, is the fact that this Court is the sole voice passing upon state law challenges to redistricting appeals, but our consideration has been limited to a single, mass appeal, once every ten years, and under severe time constraints which affect the litigants no less than the Court. Second, is the fact that each redistricting plan seems to generate similar citizen complaints concerning the alleged disrespect of political subdivisions, and the formation of odd and non-compact districts of disparate political subdivisions. Third, is the advent of computer technology. As is reflected in Dean Gormley's account of the 1991 reapportionment, and as demonstrated in practice in the alternate plans produced by the Holt and Costa appellants here, this development suggests that this Court's early establishment of the primacy of equalization of population in formulating redistricting plans (a far more difficult task before technological advancements, as the Court itself experienced in the Butcher appeals) may warrant reconsideration—at least respecting the degree to which population equality must be pursued, or must be deferred
Mr. Justice Saylor has twice addressed aspects of these concerns. First, in his 2002 concurrence in Albert, he noted that he remained "circumspect concerning the manner in which state constitutional requirements of compactness and integrity of political subdivisions have been applied by the Court in the prior decisions that are followed here." 790 A.2d at 1000. Second, in his dissenting statement to the per curiam order this Court entered before announcing the reasons for our mandate here, Justice Saylor, joined by Mr. Justice Eakin and Madame Justice Orie Melvin, noted that he was "receptive to the concern that past decisions of the Court may suggest an unnecessarily stringent approach to equalization of population as between voting districts," but he believed "this could be addressed via prospective guidance from the Court." Order, 1/25/12 (per curiam) (Saylor, J., dissenting).
Since we have already announced our determination to remand, and a new plan is to be devised, this Opinion provides the first opportunity to offer prospective guidance, and we will avail ourselves of the opportunity.
First, and most simply, we reemphasize the importance of each of the mandates in Article II, Section 16. Contrary to the suggestion of the Court in In re 1991 Plan, Article II, Section 16 by its terms does not "require that the overriding objective of reapportionment is equality of population." 609 A.2d at 139. Rather, the Constitution lists multiple imperatives in redistricting, which must be balanced. Moreover, as our discussion of the governing law in Part V makes plain, the other imperatives in Article II, Section 16 have all been recognized by the U.S. Supreme Court as legitimate state interests that may affect, and warrant, deviations in population equality.
Rather than deriving from the language of our Constitution itself, the primacy of population equality in redistricting, which is clearly established in our decisional law, derives from federal decisional law, and particularly Reynolds v. Sims. Our earliest redistricting opinions reflected an acute awareness of Pennsylvania's obligations to respect federal law—at the
But, of course, the business of predicting the future course of any dynamic and complicated area of decisional law is an uncertain one, and as it developed, U.S. Supreme Court precedent did not proceed in the constricting way that we predicted in Specter; it instead evolved to permit more flexibility in population deviation as a federal constitutional matter. Notwithstanding this development, and the fact that it was argued to this Court as a basis for permitting greater deviations of population in later redistricting cases, we did not grapple with the implications of our initial prediction, and our effective "constitutionalization" of a prediction of federal law frozen in time. Instead, we continued to suggest an inflexibility respecting population deviation that was no longer required by federal law. The necessary corollary implication was that the Court was devaluing the remaining Section 16 requirements of compactness, contiguity, and political subdivision integrity. It is not necessary to recount the claims, circumstances and results; they are detailed in our summary of the governing law in Part V.
Meanwhile, the development of computer technology appears to have substantially allayed the initial, extraordinary difficulties in achieving acceptable levels of population deviation without doing unnecessary violence to other constitutional commands. Again, the Holt plan proves the point.
Accordingly, we take this opportunity to reaffirm the importance of the multiple commands in Article II, Section 16, which embrace contiguity, compactness, and the integrity of political subdivisions, no less than the command to create legislative districts as nearly equal in population as "practicable." Although we recognize the difficulty in balancing, we do not view the first three constitutional requirements as being at war, or in tension, with the fourth. To be sure, federal law remains, and that overlay still requires, as Reynolds taught, that equality of population is the "overriding objective." But, as later cases from the High Court have made clear, that overriding objective does not require that reapportionment plans pursue the narrowest possible deviation, at the expense of other, legitimate state objectives, such as are reflected in our charter of government. See, e.g., Gaffney, 412 U.S. at 748-49, 93 S.Ct. 2321 ("Fair and effective representation. . . does not depend solely on mathematical equality among district populations. There are other relevant factors to
We trust that our recalibration of the emphasis respecting population equality to afford greater flexibility in reapportioning legislative districts by population should create sufficient latitude that the 2011 LRC, and future such bodies, may avoid many of the complaints that citizens have raised over the years, particularly respecting compactness and divisions of political subdivisions. Like the U.S. Supreme Court, we do not direct a specific range for the deviation from population equality, or purport to pre-approve redistricting plans that fall within that range. Nor do we direct the LRC to develop a reapportionment plan that tests the outer limits of acceptable deviations. See In re 1981 Plan, 442 A.2d at 667. The law in this area remains complex and dynamic, and we stress, once again, that we deem the LRC to retain considerable discretion in fashioning a plan that comports with all constitutional requirements. Furthermore, we have no doubt that the LRC will act in good faith, and with fidelity, in discharging its weighty, difficult constitutional duty on remand—no less than we have in discharging our appellate function.
VIII. Procedure on Remand
Where, as here, aggrieved citizens prove that a redistricting plan is contrary to law, the Constitution specifies that the remedy is a remand to the LRC and the Final Plan does not have force of law. This Court's per curiam order of January 25, 2012, rendered two days after argument, provided the only direction possible to candidates in light of our Constitution and our 2002 decision in Albert, which upheld the 2001 Final Plan. As we have noted earlier, we recognize that our constitutional duty to remand a plan found contrary to law has disrupted the 2012 primary election landscape. That disruption was unavoidable in light of the inexcusable failure of the LRC to adopt a Final Plan promptly so as to allow the citizenry a meaningful opportunity to appeal prior to commencement of the primary season. We trust that the LRC will avert similar delay as it is called upon to faithfully execute its task upon remand, and we trust that future such Commissions will act more promptly.
We are not in a position to predict when the LRC will complete its task of developing a new final redistricting plan that complies with law, nor when such a new plan can become final and have force of law.
Justice SAYLOR files a concurring and dissenting opinion.
Justice EAKIN files a concurring and dissenting opinion.
Justice ORIE MELVIN files a dissenting opinion.
Justice SAYLOR, concurring and dissenting.
The majority opinion is remarkable in many aspects, including its timeliness, its scope, and the passages of salutary guidance which it provides. For the most part, I support the clarification of the appellate review for redistricting challenges, particularly in terms of: the acceptance that alternate plans may be employed by challengers to address their heavy burden of proof; the movement toward a more circumspect position regarding the role of population equality; and the recognition of the interplay among the several requirements of the Pennsylvania Constitution pertaining to redistricting. My thoughts, however, do not align with the majority's criticisms of the Legislative Reapportionment Commission, inasmuch as I have limited perspective concerning the difficulties encountered by the Commission in crafting a redistricting plan.
In light of the inevitability of dividing some political subdivisions in the redistricting exercise, the appellate review of plan challenges preeminently represents an exercise in line drawing. I use this term figuratively, of course, since the Court is not generally in a position to draw the boundaries on a map, but it does determine the degree of latitude to be accorded to a legislative reapportionment commission in arranging voting district boundaries. 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. Indeed, I had no illusions in 2002 that, had the then-existing legislative reapportionment commission narrowed or otherwise altered the range of considerations taken into account in fashioning voting-district boundaries, there could not have been fewer divisions. Moreover, with regard to the 2011 Final Plan, I agree with the majority that it is an improvement over the 2001 plan, see Majority Opinion, at 755-56, which surmounted the challenges raised in the appeals before this Court.
While the majority correctly observes that those challenges were narrower in scope than the lead ones presented here, consideration of the overall plan was encompassed in my own review. The concerns which I set forth in the Albert decision were premised on such consideration, and I adjudged the 2001 plan to be entitled to deference. See Albert v. 2001 Legislative Reapportionment Comm'n, 567 Pa. 670, 688, 790 A.2d 989, 1000 (2002) (Saylor, J., concurring). Ultimately, then, on the merits, and respecting the substantial deference which is to be accorded to such a plan, I believe the 2011 Legislative Reapportionment Plan is also constitutionally permissible. It therefore follows that I remain unable to join the mandate of the Court.
JUSTICE EAKIN, concurring and dissenting.
I join much of the majority opinion. However, I do not find the Legislative Reapportionment Commission (LRC) plan to be contrary to the Constitution, and I join in full the expressions of Justice Saylor in that regard.
The process of redistricting is complex beyond words. The need to consider all the factors necessary—contiguousness,
An 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. For better or worse, there are no means for it to explain individual lines or boundaries. It is never "absolutely necessary" to draw a line in any spot—it could always go elsewhere, but there is no process articulating what considerations were behind the decision to put it where the LRC did.
Since there is no record, we cannot tell why the LRC did what it did. This is a problem for both those who would challenge the plan and for those of us who must evaluate those challenges. For example, the "Holt plan" was not adopted by the LRC, but we do not know what consideration it received. We can surmise reasons it was not enacted, but this is mere conjecture.
It is entirely possible that this plan, lovely on its surface, is not so beautiful when examined in depth—on the other hand, it may be a masterpiece. We do not know and are not possessed of the means to make such an evaluation, particularly given the time constraints cogently detailed in the majority's opinion.
The bottom line is that we do not know whether the Holt plan, or any other plan, proves anything other than that it is possible to divide fewer political subdivisions. This in my judgment does not prove the LRC plan is unconstitutional. The bipartisan LRC, however, has the time, the means, and indeed the mandate to consider all options, and I would give it significant deference. Given that deference, the burden on challengers is indeed heavy and, in my judgment, has not been met in this case.
The 2011 plan has fewer problems than the plan we found constitutional in Albert; it is not unconstitutional under existing precedent. While I do not quarrel with the majority's reordering of constitutional priorities, I do not find a need to make that reordering retroactive.
Redistricting is required to ensure constitutional representation of all voters, reflecting population changes that occur over a decade. Computers or not, drawing a new plan using new rules will not happen in time for this year's elections. Changing the rules and rejecting the otherwise constitutional plan subjects our citizens to continued unbalanced representation. I find this result unnecessary.
As such, I cannot join the order rejecting the 2011 Legislative Reapportionment Plan.
Justice ORIE MELVIN, dissenting.
The Majority Opinion expeditiously provides significant breadth in scope and history of legislative redistricting, but I remain convinced that the Final Plan should be affirmed. The complaints of the various appellants notwithstanding, it is clear that there is no perfect plan. The Majority "recalibrates" the interplay of the constitutional requirements found in Section 16 of the Pennsylvania Constitution. In so doing, it invalidates the 2011 Final Plan, which was carefully constructed by the Legislative Reapportionment Commission (LRC) in accordance with our prior pronouncements concerning redistricting in the Commonwealth. In light of the significant
While our reapportionment precedent is limited, it unequivocally demonstrates that our overarching concern in redistricting matters is substantial equality of population. See Specter v. Levin, 448 Pa. 1, 293 A.2d 15, 19 (Pa.1972) ("Section 16's desire for districts that are `compact' must also yield, if need be, `to the overriding objective. . . (of) substantial equality of population.'") (quoting Reynolds v. Sims, 377 U.S. 533, 579, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964)); In re Reapportionment Plan for the Pa. General Assembly (In re 1981 Reapportionment), 497 Pa.525, 442 A.2d 661, 665 (Pa.1981) (articulating same principle); In re 1991 Pa. Legislative Reapportionment Comm'n, 530 Pa. 335, 609 A.2d 132, 138 (Pa.1992) (same); Albert v. 2001 Legislative Reapportionment Comm'n, 567 Pa. 670, 790 A.2d 989, 993-94 (Pa.2002) (same). Indeed, the Majority recognizes this to be true. See Majority Opinion, at 756 ("[T]his Court's prior decisions emphasized equality of population as
As justification for the conclusion that the 2011 Final Plan is unconstitutional, the Majority cites an alleged excessive number of subdivision splits, admonishing that prior plans cannot serve as a benchmark for scrutinizing subsequent plans. Despite this contention, we have undertaken a comparative approach in the recent past. Specifically, in Albert we compared the 2001 Final Plan with those previously approved by this Court. Finding that the number of subdivision splits was similar, we determined the 2001 Plan withstood constitutional scrutiny. Albert, 790 A.2d at 998 ("[The Commission] claims that . . . no political subdivision was divided in forming a district unless absolutely necessary. Upon comparison of the instant Final Plan with those previously approved by this Court, we agree."); id. at 999 n. 12.
I find it unnecessary to criticize the timeliness of the LRC's actions, see Majority Opinion, at 721-23, and I disagree that it unnecessarily delayed this Court's disposition. The LRC's actions comported to the time frame set forth in Article 2, Section 17(c) of our Constitution, and both the LRC and this Court have proceeded with due diligence in this matter.
The LRC faithfully applied our existing precedent in preparing the 2011 Final
Having reviewed the Final Plan as a whole, and in view of existing precedent, I conclude that it is constitutionally permissible. Therefore, I would approve the Final Plan, thus allowing it to have "the force of law." Pa. Const. art. 2, § 17(e).
Transcript of Oral Argument, 1/23/2012, at 165.
For the proposition that the LRC did not have "usable" data until August 2011, despite the earlier availability of census data, the LRC relied on an account of the 1981 and 1991 Reapportionments authored by Dean Ken Gormley, who was the Executive Director of the 1991 Legislative Reapportionment Commission, and is at present the Dean of the Duquesne University School of Law.
Del Sole Cavanaugh Stroyd LLC Memorandum at 4-5 (citations omitted); see also Ken Gormley, The Pennsylvania Legislative Reapportionment of 1991, at 22-24 (Commonwealth of Pennsylvania Bureau of Publications 1994).
No party to these appeals objects to the notion that the data must be in "usable" form before the LRC can formulate a preliminary plan.
25 P.S. § 2753(a).
Gormley, Legislative Reapportionment, at 55. Of course, we recognize that the LRC has considerable discretion to determine its role in litigation. For better or for worse, the current LRC and counsel have taken a more adversarial litigation approach than their predecessors in 1991.
1874 PA CONST. art. II, § 17.
Respecting the LRC's legal argument, we note that the LRC did not dispute the factual allegations in the Holt petition for review, or allege fraud, impropriety, or material inaccuracy in its response to the petition. We also note that, given its access to the relevant data and its expertise, the LRC is certainly capable of ascertaining and formulating fact-specific claims as to individual plans, and could have done so here. And, finally, we view this argument—that only the LRC's Plan can be reliable—as a variation of its claim that alternatives simply cannot be considered. Respectfully, we do not believe that Article II, Section 16 intends to set such an impossible bar for citizen challengers.
The Costa appellants also offered their alternative plan after the LRC issued its preliminary plan. At oral argument, counsel for Costa explained that the Costa plan did not seek to achieve the minimum number of necessary divisions, but instead to show that the number of split municipalities could be reduced compared with the LRC's preliminary plan, even while maintaining similar electoral performance.
We will not direct that the LRC begin its task on remand with the Costa plan, the Holt plan, or any particular plan. We trust that the LRC will heed to the guidance in this Opinion with alacrity and fashion a plan giving full respect to the multiple commands in Article II, Section 16.