OPINION BY MR. JUSTICE ROBERTS, September 29, 1964:
At issue in this litigation is the constitutional validity, under the Fourteenth Amendment to the Federal Constitution of the present apportionment of seats in both houses of the Pennsylvania Legislature.
On March 30, 1962, plaintiffs, Pennsylvania taxpayers and electors, filed complaints in equity in the Court of Common Pleas of Dauphin County against
On January 14, 1964, plaintiffs petitioned the Supreme Court of Pennsylvania to take immediate jurisdiction of this case, and on January 15 we granted
In considering this case, we are aware that a similar proceeding was instituted in the United States District Court for the Middle District of Pennsylvania on November 22, 1963.
For many reasons, we believe that we should decide the issues presented and provide necessary remedies for achieving valid reapportionment. In the presence of the demonstrated willingness of the Legislature
This suit challenges the recent Pennsylvania Reapportionment Acts and the election of state senators and representatives thereunder. More importantly, it challenges — in light of recent decisions interpreting the Constitution of the United States — the validity of certain provisions of the Constitution of Pennsylvania which establish the legislative branch of government. It presents one of the most important constitutional questions ever raised in the history of this Commonwealth. It involves the basic rights of the citizens of Pennsylvania in the election of their state lawmakers. Historically and logically, this Court is the most appropriate forum to determine the issues presented and
Furthermore, jurisdiction with respect to the matters involved was obtained by the Court of Common Pleas of Dauphin County prior to the federal district court, and both the former court and this Court have acted diligently in light of all the circumstances of this case. After the initial complaints were filed in March, 1962, the common pleas court postponed adjudication of the issues involved in order to give the Legislature an opportunity to act at its forthcoming session. At a special session in 1963, the General Assembly enacted reapportionment legislation, and, immediately thereafter, this Court assumed jurisdiction of this case, received findings of fact and a report based on hearing before the Dauphin County court, and promptly heard argument. Meanwhile, the federal district court denied an application for a preliminary injunction which would have restrained state officials from conducting any election for state legislative office, pending final enactment by the General Assembly of reapportionment legislation then being considered.
It is obvious, of course, that the federal district court's decision of April 9, 1964, was made without the benefit of this Court's interpretation of relevant Pennsylvania constitutional provisions, and, more importantly, without the benefit of recent crucial and controlling decisions announced by the Supreme Court of the United States on June 15, 1964.
The General Assembly of Pennsylvania is entitled to an opportunity to enact reapportionment legislation pursuant to the recent Reynolds cases and to our interpretation here of pertinent provisions of the
The Supreme Court of the United States has held that "seats in both houses of a bicameral state legislature must be apportioned on a population basis";
The Act of January 9, 1964, No. 1, which fixes the number of representatives at 209 divides the state into districts as follows:
(Population ratio based on division by 200: 56,597)
No. Population District District of Representatives per Representative County No. Total Philadelphia 1 57,507 1 57,507 2 123,445 2 61,722 3 50,896 1 50,896 4 52,246 1 52,246 5 118,067 2 59,033 6 59,203 1 59,203 7 105,037 2 52,519 8 66,017 1 66,017 9 68,833 1 68,833 10 53,550 1 53,550 11 59,483 1 59,483 12 166,944 3 55,648 13 54,497 1 54,497 14 50,616 1 50,616 15 53,563 1 53,563 16 51,055 1 51,055 17 98,589 2 49,299 18 65,622 1 65,622 19 64,956 1 64,956 20 53,986 1 53,986 21 114,280 2 57,140 22 42,761 1 42,761 23 64,982 1 64,982 24 48,898 1 48,898 25 137,260 2 68,630 26 120,210 2 60,105 Adams 51,906 1 51,906 Allegheny 1 137,544 2 68,772 2 50,690 1 50,690 3 49,644 1 49,644 4 49,413 1 49,413 5 47,301 1 47,301 6 132,115 2 66,058 7 143,605 2 71,802 8 53,515 1 53,515 9 111,365 2 55,682 10 63,944 1 63,944 11 127,373 2 63,687 12 62,839 1 62,839 13 60,727 1 60,727 14 235,672 4 58,918 15 153,108 3 51,036 16 150,966 3 50,322 Armstrong 79,524 1 79,524 Beaver 1 102,521 2 51,260 2 104,427 2 52,213 Bedford 42,451 1 42,451 Berks 1 48,551 1 48,551 2 59,639 1 59,639 3 56,817 1 56,817 4 60,781 1 60,781 5 49,626 1 49,626 Blair 1 69,407 1 69,407 2 67,863 1 67,863 Bradford 54,925 1 54,925 Bucks 1 236,905 4 59,226 2 71,662 1 71,662 Butler 1 58,819 1 58,819 2 55,820 1 55,820 Cambria 1 56,756 1 56,756 2 95,114 2 47,557 3 51,413 1 51,413 Cameron 7,586 1 7,586 Carbon 52,889 1 52,889 Centre 78,580 1 78,580 Chester 1 105,824 2 52,912 2 104,784 2 52,392 Clarion 37,408 1 37,408 Clearfield 81,534 1 81,534 Clinton 37,619 1 37,619 Columbia 53,589 1 53,489 Crawford 77,956 1 77,956 Cumberland 1 62,193 1 62,193 2 62,623 1 62,623 Dauphin 1 79,697 1 79,697 2 140,558 3 46,853 Delaware 1 63,658 1 63,658 2 255,556 4 63,889 3 233,940 4 58,485 Elk 37,328 1 37,328 Erie 1 69,946 1 69,946 2 68,494 1 68,494 3 112,242 2 56,121 Fayette 1 56,971 1 56,971 2 112,369 2 56,184 Forest 4,485 1 4,485 Franklin 1 44,617 1 44,617 2 43,555 1 43,555 Fulton 10,597 1 10,597 Greene 39,424 1 39,424 Huntingdon 39,457 1 39,457 Indiana 75,366 1 75,366 Jefferson 46,792 1 46,792 Juniata 15,874 1 15,874 Lackawanna 1 55,074 1 55,074 2 56,369 1 56,369 3 67,164 1 67,164 4 55,924 1 55,924 Lancaster 1 61,055 1 61,055 2 217,304 4 54,326 Lawrence 1 53,353 1 53,353 2 59,612 1 59,612 Lebanon 90,853 2 45,427 Lehigh 1 108,347 2 54,173 2 119,189 2 59,594 Luzerne 1 55,300 1 55,300 2 56,124 1 56,124 3 55,926 1 55,926 4 58,929 1 58,929 5 57,142 1 57,142 6 63,551 1 63,551 Lycoming 1 51,014 1 51,014 2 58,353 1 58,353 Mercer 1 61,209 1 61,209 2 66,310 1 66,310 McKean 54,517 1 54,517 Mifflin 44,348 1 44,348 Monroe 39,567 1 39,567 Montgomery 1 99,444 2 49,722 2 128,234 2 64,117 3 134,560 2 67,280 4 154,444 3 51,481 Montour 16,730 1 16,730 Northampton 1 55,325 1 55,325 2 52,438 1 52,438 3 93,649 2 46,824 Northumberland 1 50,422 1 50,422 2 53,716 1 53,716 Perry 26,582 1 26,582 Pike 9,158 1 9,158 Potter 16,483 1 16,483 Schuylkill 1 64,196 1 64,196 2 108,831 2 54,416 Snyder 25,922 1 25,922 Somerset 77,450 1 77,450 Sullivan 6,251 1 6,251 Susquehanna 33,137 1 33,137 Tioga 36,614 1 36,614 Union 25,646 1 25,646 Venango 65,295 1 65,295 Warren 45,582 1 45,582 Washington 1 108,030 2 54,015 2 109,241 2 54,620 Wayne 28,237 1 28,237 Westmoreland 1 64,337 1 64,337 2 58,224 1 58,224 3 60,717 1 60,717 4 57,659 1 57,659 5 49,827 1 49,827 6 61,865 1 61,865 Wyoming 16,813 1 16,813 York 1 54,504 1 54,504 2 64,744 1 64,744 3 57,176 1 57,176 4 61,882 1 61,882
An examination of the foregoing apportionment of representatives indicates quite clearly that in numerous instances the same number of representatives is alloted to unequal numbers of constituents. We realize, as does the Supreme Court of the United States, "that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters," and that "mathematical exactness or precision is hardly a workable constitutional requirement."
Several vivid examples, by no means exhaustive, illustrate the gross disparities which exist under the Act. Twelve counties, namely Clearfield, with a population of 81,534; Armstrong, with a population of 79,524; Centre, with a population of 78,580; Crawford,
In examining the districts established by the Act, it is apparent that many population disparities resulted from an allocation by the Legislature of at least one representative to each county in the state regardless of the population of that county. This allocation resulted from the assumption that the heretofore unquestioned pattern of one representative per county was mandated by the Pennsylvania Constitution, Article II, § 17. Although the Supreme Court of the United States has recognized that "a consideration that appears to be of more substance in justifying some deviations
Careful consideration of the legislative districting scheme embodied in the Pennsylvania Reapportionment Act, No. 1, as well as the populations of all of Pennsylvania's counties, compels us to rule that assignment of one seat to each county, regardless of population, results in the submergence of population as the controlling consideration in apportionment and is offensive to the Fourteenth Amendment to the Constitution of the United States. It must therefore be concluded
As we have indicated, the Supreme Court of the United States has held that reapportionment of both houses in a bicameral legislature must be based on population. The Act of January 9, 1964, No. 2, apportions the State Senate into senatorial districts, as follows:
(Population ratio per Senator: 226,387) District 1960 No. of No. County Population Senators 1 Philadelphia (part) 260,767 1 2 Philadelphia (part) 255,869 1 3 Philadelphia (part) 251,415 1 4 Philadelphia (part) 241,032 1 5 Philadelphia (part) 236,148 1 6 Philadelphia (part) 242,667 1 7 Philadelphia (part) 266,242 1 8 Philadelphia (part) 248,372 1 37 Allegheny (part) 236,359 1 38 Allegheny (part) 233,003 1 40 Allegheny (part) 241,633 1 42 Allegheny (part) 226,269 1 43 Allegheny (part) 237,367 1 44 Allegheny (part) 233,086 1 45 Allegheny (part) 222,104 1 9 Delaware (part) 255,888 1 26 Delaware (part) 297,266 1 12 Montgomery (part) 262,794 1 17 Montgomery (part) 253,888 1 39 Westmoreland 352,629 1 20 Luzerne 346,972 1 10 Bucks 308,567 1
13 Lancaster 278,359 1 11 Berks 275,414 1 29 Schuylkill, Lebanon 263,880 1 49 Erie 250,682 1 28 York 238,336 1 22 Lackawanna 234,531 1 21 Butler, Lawrence 227,604 1 16 Lehigh 227,536 1 15 Dauphin 220,255 1 46 Washington 217,271 1 31 Mifflin, Juniata, Perry, Cumberland 211,620 1 19 Chester 210,608 1 32 Fayette, Greene 208,764 1 47 Beaver 206,948 1 50 Mercer, Crawford 205,475 1 35 Cambria 203,283 1 41 Jefferson, Armstrong, Indiana 201,682 1 18 Northampton 201,412 1 24 Columbia, Lycoming, Montour 179,586 1 30 Blair, Huntingdon 176,727 1 25 Potter, McKean, Warren, Clinton, Cameron 161,787 1 34 Centre, Clearfield 160,114 1 27 Northumberland, Snyder, Union 155,706 1 23 Bradford, Susquehanna, Tioga, Wyoming, Sullivan 147,740 1 48 Elk, Forest, Clarion, Venango 144,516 1 33 Franklin, Adams 140,078 1 36 Bedford, Fulton, Somerset 130,498 1 14 Carbon, Monroe, Pike, Wayne 129,851 1
In Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1382 (1964), the Supreme Court of the United States said: "if a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote . . . in the disfavored areas had not been effectively diluted."
Careful consideration of the entire legislative districting scheme for the Pennsylvania Senate, including not only the districts which we have cited above, but other districts as well, requires us to conclude that the Act of January 9, 1964, No. 2, which provides for reapportionment of the Senate by substantially diluting the right to vote of individuals in some districts
In light of our conclusion that the Acts of January 9, 1964, Nos. 1 and 2, are constitutionally insufficient, we have given much consideration to the remedy which should be granted. Recent decisions of the Supreme Court of the United States make it clear that it is for us to determine "whether the imminence of the 1964 . . . general elections requires the utilization of the apportionment scheme contained" in those acts notwithstanding their invalidity, as the following excerpts indicate:
"Since primary responsibility for legislative apportionment rests with the legislature itself, and since adequate time exists in which the Maryland General Assembly can act, the Maryland courts need feel obliged to take further affirmative action only if the legislature fails to enact a constitutionally valid state legislative apportionment scheme in a timely fashion after being afforded a further opportunity by the courts to do so. However, under no circumstances should the 1966 election of members of the Maryland Legislature be permitted to be conducted pursuant to the existing or any other unconstitutional plan. We therefore reverse the judgment of the Maryland Court of Appeals, and remand the case to that Court for further proceedings not inconsistent with the views stated here and in our opinion in Reynolds v. Sims." Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 676, 84 S.Ct. 1442, 1452-53 (1964). (Emphasis supplied.)
"Since all members of both houses of the New York Legislature will be elected in November 1964, the court below, acting under equitable principles, must now determine whether, because of the imminence of that
"Since the apportionment of seats in the Colorado Legislature . . . fails to comport with the requirements of the Equal Protection Clause, the decision below must be reversed. Beyond what we said in our opinion in Reynolds, we express no view on questions relating to remedies at the present time. On remand, the District Court must now determine whether the imminence of the 1964 primary and general elections requires that utilization of the apportionment scheme contained in the constitutional amendment be permitted, for purposes of those elections, or whether the circumstances in Colorado are such that appellants' right to cast adequately weighted votes for members of the State Legislature can practicably be effectuated in 1964." Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713, 739, 84 S.Ct. 1472, 1487-88 (1964).
It is obvious that the Pennsylvania Legislature cannot properly act to reapportion itself in the short time remaining before the election of November 3, 1964, and months after the April 28, 1964 primary election. We do believe, however, that the Legislature made an earnest effort to reapportion itself in 1963. Unfortunately, it was then without the benefit of the views of the Supreme Court of the United States expressed in the Reynolds cases and without an interpretation by this Court of important and relevant provisions of the Pennsylvania Constitution. Serious disruption of orderly
The task of reapportionment is not only the responsibility of the Legislature, it is also a function which can be best accomplished by that elected branch of government. The composition of the Legislature, the knowledge which its members from every part of the state bring to its deliberations, its techniques for gathering information, and other factors inherent in the legislative process, make it the most appropriate body for the drawing of lines dividing the state into senatorial and representative districts. We expect, therefore, that the General Assembly will enact reapportionment legislation in accordance with constitutional requirements.
In order to prevent undue confusion on the part of those who are assigned the primary task of reapportionment, we feel compelled to discuss several provisions of the Constitution of Pennsylvania as well as
Article II, § 16, of the Pennsylvania Constitution, which relates to senatorial districts, provides: "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. Each county containing one or more ratios of population shall be entitled to one Senator for each ratio, and to an additional Senator for a surplus population exceeding three-fifths of a ratio, but no county shall form a separate district unless it shall contain four-fifths of a ratio, except where the adjoining counties are each entitled to one or more Senators, when such county may be assigned a Senator on less than four-fifths and exceeding one-half of a ratio; and no county shall be divided unless entitled to two or more Senators. No city or county shall be entitled to separate representation exceeding one-sixth of the whole number of Senators. No ward, borough, or township shall be divided in the formation of a district. The senatorial ratio shall be ascertained by dividing the whole population of the State by the number fifty."
The first sentence of § 16 embraces fully the population principle expressed by the Supreme Court of the United States in the Reynolds cases. The Constitution's intention to make population the starting point and controlling criterion in senatorial districting is manifest and mandatory. It acknowledges what the Supreme Court of the United States has also acknowledged, "that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters,"
We hold, therefore, that Article II, § 16 of the Pennsylvania Constitution requires that senatorial reapportionment legislation must maintain the integrity of counties and other political subdivisions, insofar as possible, and must provide for compact districts of contiguous territory, subject always to the overriding objective and mandate that such districts shall be "as nearly equal in population as may be." We must emphasize 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. Furthermore, the number of
Article II, § 17, of the Pennsylvania Constitution, which relates to the House of Representatives, provides: "The members of the House of Representatives shall be apportioned among the several counties, on a ratio obtained by dividing the population of the State as ascertained by the most recent United States census by two hundred. Every county containing less than five ratios shall have one representative for every full ratio, and an additional representative when the surplus exceeds half a ratio; but each county shall have at least one representative. Every county containing five ratios or more shall have one representative for every full ratio. Every city containing a population equal to a ratio shall elect separately its proportion of the representatives allotted to the county in which it is located. Every city entitled to more than four representatives, and every county having over one hundred thousand inhabitants shall be divided into districts of compact and contiguous territory, each district to elect its proportion of representatives according to its population, but no district shall elect more than four representatives."
It is clear that the first sentence of § 17 is in accord with the requirements of the federal constitution. It expressly recognizes the equal-population principle as the controlling factor in apportioning the House of Representatives. Division of the population of the state by two hundred, supplies "a ratio" and a starting point in the construction of districts. In contrast to § 16 which provides for a fixed number, i.e., "fifty senatorial districts" with each district "entitled to elect one Senator," nothing in § 17 precludes the establishment of a House of Representatives consisting of more than two hundred members, provided, of course, the equal-population rule is observed.
Although the opinion of the district court sought to anticipate some of the requirements laid down by recent decisions of the Supreme Court of the United States, we feel that it differs in some material respects from the views contained in those controlling decisions. Throughout the district court's opinion runs the theme that if there is equality of representation as between rural groups of counties on the one hand and urban groups of counties on the other, then Pennsylvania will be apportioned constitutionally.
"By holding that as a federal constitutional requisite both houses of a state legislature must be apportioned
Furthermore, the district court announced that it would not invalidate unequal representation resulting from use of the county as a district, provided that the disparity from the norm does not exceed one-half of a ratio. In our view, the establishment of a rigid mathematical standard is inappropriate in evaluating the constitutional validity of a state legislative apportionment scheme. In Roman v. Sincock, 377 U.S. 695, 710 n.21, 84 S.Ct. 1462, 1470 n.21 (1964), the Supreme Court pointed out that the lower court in that case had suggested that population-based variance ratios smaller than 1 1/2 to 1 would presumably comport with minimal constitutional requisites, while ratios in excess thereof would necessarily involve deviations from population-based apportionment too extreme to be constitutionally sustainable. The Court said: "Our affirmance of the decision below is not meant to indicate approval of the District Court's attempt to state in mathematical language the constitutionally permissible bounds of discretion in deviating from apportionment according to population. In our view the problem does not lend itself to any such uniform formula, and it is neither practicable nor desirable to establish rigid mathematical standards for evaluating the constitutional validity of a state legislative apportionment scheme under the Equal Protection Clause. Rather, the proper judicial approach is to ascertain whether, under the particular circumstances existing in the individual State whose legislative apportionment is at issue, there has been a faithful adherence to a plan of population-based representation, with such minor deviations only as may occur in recognizing
Finally, the opinion of the district court declared that there is a discrimination in voting power when voters may, by reason of the arrangement of legislative districts, vote for two, or three, or even four representatives, while others are restricted to voting for one only. Language which appears in the opinion of Chief Justice WARREN in Reynolds, and other cases, indicates that the presence of some multi-member districts in one legislative house is not per se unconstitutional: "One body could be composed of single-member districts while the other could have at least some multimember districts." Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 1389 (1964).
"Single-member districts may be the rule in one State, while another State might desire to achieve some flexibility by creating multimember or floterial districts." Id. at 579, 84 S. Ct. at 1390.
"We do not intimate that apportionment schemes which provide for the at-large election of a number of legislators from a county, or any political subdivision, are constitutionally defective." Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713, 731 n.21, 84 S.Ct. 1472, 1483 n.21 (1964).
While we do not believe that the creation of multimember districts of itself, would violate the Federal Constitution simply because the voters in a particular district (where justified by population) would vote for two or more representatives while those in another district would vote for a lesser number, we do believe that a legislative scheme which creates single-member districts and multi-member districts in an arbitrary manner would be objectionable. We would agree with the district court, however, that in the absence of any reasonable justification (historical or otherwise), such districting might be the result of gerrymandering for partisan advantage and, in that event, would be arbitrary and capricious. In light of the constitutional
Our interpretation of the relevant provisions of the Pennsylvania Constitution makes mandatory only such requirements as are in harmony with the Fourteenth Amendment to the Constitution of the United States. We hope the difficult and complex task of the Legislature will be clarified by the guidelines set out in this opinion as well as by the Reynolds cases.
We have indicated that it is our expectation that the Legislature will proceed in timely fashion to enact reapportionment laws which conform to constitutional requirements. We must recognize, however, that if the General Assembly fails to act in a timely fashion, we shall be obliged to take necessary affirmative action to insure that the 1966 election of Pennsylvania legislators will be conducted pursuant to a constitutionally valid plan. Proper regard for our responsibility compels us to retain jurisdiction of this matter pending legislative action.
Should the Legislature fail to enact a constitutionally valid plan of reapportionment as soon as practical, but not later than September 1, 1965, we shall take such action as may be appropriate in light of the then existing situation.
Jurisdiction retained in accordance with this opinion.
CONCURRING OPINION BY MR. CHIEF JUSTICE BELL:
I join in the very able Opinion which Justice ROBERTS has written for the Court. However, I am impelled
I shall first discuss the question of Constitutionality and then the point which I believe the Supreme Court of the United States has overlooked — namely, the deprivation and dilution of the voice, the vote and the representation of minority groups as a result of that Court's recent reapportionment decisions.
The new concept of reapportionment and the justiciability by Courts of questions of congressional and legislative redistricting, commenced with Baker v. Carr, 369 U.S. 186, which held that State apportionment and reapportionment presented a justiciable question. The limited effect of Baker v. Carr was pointed out by Chief Justice WARREN in Reynolds v. Sims, 377 U.S. 533, 556: "In Baker . . . We intimated no view as to the proper constitutional standards for evaluating the validity of a state legislative apportionment scheme."
The appealing slogan which is now so often relied upon, namely, "One person, one vote", was first enunciated in Gray v. Sanders, 372 U.S. 368, 381, and reiterated in Reynolds v. Sims, supra, page 558. This slogan is susceptible of so many different meanings that it is in reality meaningless. Every person who is qualified to vote is entitled, of course, to one vote and one vote only; but in scores of different matters, in business, in public affairs, in Government, in Senatorial and in Presidential elections and in practical life, the result is often not based or decided solely on arithmetic, and the vote of one person is sometimes more important and weightier than the votes of many or of all those opposed. No contention of "dilution" can alter these practicalities of life.
In Reynolds v. Sims and in the five accompanying decisions of the Supreme Court of the United States
Furthermore, Reynolds v. Sims, supra; and Maryland Committee v. Tawes, 377 U.S. 656, 84 S.Ct. 1442; and Gray v. Sanders, 372 U.S. 368, 381; and WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418; decided, in effect, that it was Unconstitutional for the people of a State or for a State Legislature to allot one Representative or one Senator to each of the Counties or political divisions in that State, even though additional Representatives or Senators were allotted to the more populous Counties or political divisions. The Court also rejected any analogy to the Electoral College or to the Congress of the United States — in the latter, the Constitution allots (as everyone knows) two Senators to each State and at least one Representative to each State regardless of population. It is with a heavy heart, therefore, that I am compelled, by the recent decisions of the Supreme Court of the United States, to hold that certain parts of Section 16 and Section 17 of Article II of the (nearly) century old Constitution of Pennsylvania are Unconstitutional. Under the form and kind of Government established by our Constitution, Pennsylvania has grown prosperous and great, and our people, with rare exceptions, have been satisfied, happy and proud to have such a Republican form of Government.
The Supreme Court has, in effect, declared Unconstitutional and invalidated and outlawed the present allocation of Congressmen, Representatives, and State Senators in nearly every State in the Union — especially
One of the tragic results which we believe has been overlooked by that Court's majority is that this newly devised form of representative Government will almost inevitably deprive minority groups of a fair and effective representation in legislative halls of their principles, customs, traditions, their particular problems and desired solutions, and the preservation of their cherished way of life. Their interests will not only be diluted, they will be in practical effect, frequently completely ignored.
This is so far removed and so different from what the people in each State of the United States have believed
Surely, the unjust and unjustifiable legislative apportionments, as well as the political gerrymandering in certain States or in certain political divisions of a State, can be declared Unconstitutional and prohibited without this wholesale destruction of the age-old just and cherished form of Government which has prevailed in nearly every State in the Union. With due respect, isn't the Court's cure worse than the disease?
My views and my fears are not imaginary. They are supported by public expressions in Congress, in State Legislatures, in the press and news media throughout our Country, and most importantly, by Justices of the Supreme Court of the United States. For example:
In Baker v. Carr, 369 U.S. 186, 267, Justice FRANKFURTER in his dissenting Opinion characterized the Court's decision (on the subject of reapportionment) as ". . . a massive repudiation of the experience of our whole past in asserting destructively novel judicial power . . ."
In Reynolds v. Sims, 377 U.S., supra, Justice HARLAN, in his dissenting Opinion, said (pages 607, 614-615, 625): "It is incredible
". . . today's decisions are refuted by the language of the Amendment which they construe and by the inference fairly to be drawn from subsequently enacted Amendments. They are unequivocally refuted by history and by consistent theory and practice from the time of the adoption of the Fourteenth Amendment until today.
". . . The consequence of today's decision is that in all but the handful of States which may already satisfy the new requirements the local District Court or, it may be, the state courts, are given blanket authority and the constitutional duty to supervise apportionment of the State Legislatures. It is difficult to imagine a more intolerable and inappropriate interference by the judiciary with the independent legislatures of the States.
". . . For when, in the name of constitutional interpretation, the Court adds something to the Constitution [
In Lucas v. Colorado General Assembly, 377 U.S. 713, 84 S.Ct. 1472 and WMCA, Inc. v. Lomenzo, supra, Justice STEWART, joined by Justice CLARK, termed the majority reapportionment decision "woefully wrong" and further said (pages 1429-1431): "To put the matter plainly, there is nothing in all the history of this Court's decisions which supports this constitutional rule. The Court's draconian pronouncement, which makes unconstitutional the legislatures of most of the 50 States, finds no support in the words of the Constitution, in any prior decision of this Court, or in
". . . Instead, the Court says that the requirements of the Equal Protection Clause can be met in any State only by the uncritical, simplistic, and heavy-handed application of sixth-grade arithmetic."
In Wesberry v. Sanders, 376 U.S. 1, Justice HARLAN, dissenting, said (pages 20-22, 42, 48): "I had not expected to witness the day when the Supreme Court of the United States would render a decision which casts grave doubt on the constitutionality of the composition of the House of Representatives. It is not an exaggeration to say that such is the effect of today's decision. The Court's holding that the Constitution requires States to select Representatives either by elections at large or by elections in districts composed `as nearly as is practicable' of equal population places in jeopardy the seats of almost all the members of the present House of Representatives.
". . . Thus, today's decision impugns the validity of the election of 398 Representatives from 37 States, leaving a `constitutional' House of 37 members now sitting.
"Only a demonstration which could not be avoided would justify this Court in rendering a decision the effect of which, inescapably as I see it, is to declare constitutionally defective the very composition of a coordinate
". . . The constitutional right which the Court creates is manufactured out of whole cloth.
". . . The claim for judicial relief in this case strikes at one of the fundamental doctrines of our system of government, the separation of powers. In upholding that claim, the Court attempts to effect reforms in a field which the Constitution, as plainly as can be, has committed exclusively to the political process.
"This Court, no less than all other branches of the Government, is bound by the Constitution . . . . The stability of this institution ultimately depends not only upon its being alert to keep the other branches of government within constitutional bounds but equally upon recognition of the limitations on the Court's own functions in the constitutional system."
Cf. also, Justice BLACK'S dissenting Opinion in Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, where he said (page 934): "I think that the New York law here held invalid is in full accord with all the guarantees of the federal Constitution and that it should not be held invalid by this Court because of a belief that the Court can improve on the Constitution."
See also, Justice CLARK'S dissenting Opinion in Fay v. Noia, 372 U.S. 391, where he said (page 445): ". . . But the Court today in releasing Noia makes an `abrupt break' not only with the Constitution and the statute but also with its past decisions, disrupting the delicate balance of federalism so foremost in the minds of the Founding Fathers and so uniquely important in the field of law enforcement."
Justice FRANKFURTER, in his Concurring Opinion in Green v. United States, 356 U.S. 165, 193 (1958), said (page 193):
Justice JACKSON prophetically foresaw what has now actually happened in the Supreme Court when, in a Concurring Opinion in Brown v. Allen, 344 U.S. 443 (1953), he said (page 535):
"Whatever has been intended, this Court also has generated an impression in much of the judiciary that regard for precedents and authorities is obsolete, that words no longer mean what they have always meant to the profession, that the law knows no fixed principles."
Compare also, Justice STEWART'S dissenting Opinion in Escobedo v. Illinois, 378 U.S. 478, 12 L. Ed. 2d 977, where he said (page 988) that the majority decision was "Supported by no stronger authority than its own rhetoric"; and that "the Court perverts those precious constitutional guarantees."
To summarize: Section 16 and Section 17 of Article II of the Constitution of Pennsylvania and the Act of January 9, 1964, No. 1, P.L. (1963) 1419, 25 PS § 2221 (Supp. 1963), are Unconstitutional. The creation of Senatorial and Legislative Districts
I would require the Legislature of Pennsylvania to enact a Constitutionally valid plan of reapportionment as soon as practical, but not later than September 1, 1965. The new Reapportionment Act should provide substantially as follows: "The State shall be divided
"The House of Representatives shall be elected for a period of two years. For purposes of representation in the House of Representatives, the State shall be divided into legislative districts of compact and contiguous territory and the number of representatives in each district shall be determined on as nearly as is practicable an equal ratio of population basis. Except when entitled to more than one representative, no County shall be divided in the formation of a district unless the practicalities compel such division."
The foregoing requirements are necessarily subject to any change or modification or clarification of the views or mandates of the Supreme Court of the United States. In the meantime, this Court should retain jurisdiction of the subject matter of apportionment and reapportionment.
Under the 1964 Act, this imbalance of district percentages in Philadelphia has been largely corrected. (The ratio per senator is 226,387 — 11,319,366 divided by 50.) For example, the third district with one senator now has a population of 251,415, while the eighth district has a population of 248,372. Several other examples of districts in which imbalances were corrected are: District No. 38, which had a population of 134,345 per senator, now has a population of 233,003 per senator; District No. 40, which had a population of 328,712, now has a population of 241,633 per senator; District No. 42, which had a population of 109,140, now has a population of 226,269 per senator; District No. 43, which had a population of 157,955, now has a population of 237,367 per senator; District No. 44, which had a population of 338,549, now has a population of 233,086; District No. 45, which had a population of 509,886, now has a population of 222,104.
In the House of Representatives, where the ratio per representative is 54,150 (11,319,366 divided among 209 members) or 56,597 (if the population is divided by 200), many population disparities were lessened. Several examples can be cited: District No. 2 in Allegheny County, which had a population of 29,883 per representative, now has a population of 50,690 per representative; District No. 3 in Allegheny County, which had a population of 38,804, now has a population of 49,644 per representative; District No. 15 in Allegheny County, which had a population of 75,506, now has a population of 51,036 per representative; District No.16 in Allegheny County, which had a population of 74,465, now has a population of 50,322 per representative; Beaver County District No. 1, which had a population of 76,152, now has a population of 51,261; District No. 2 in Bucks County, which had a population of 139,293, now has a population of 71,662; District No. 26 in Philadelphia County, which had a population of 36,459, now has a population of 60,105; District No. 1 in Chester County, which had a population of 49,034, now has a population of 52,912; while District No. 2 in Chester County, which had a population of 80,787, now has a population of 52,392; and District No. 3 in Delaware County, which had a population of 90,026, now has a population of 58,485.