609 A.2d 132 | Pa. | 1992
ORDER
AND NOW, this 14th day of February, 1992, pursuant to Article 2, Section 17(d) of the Pennsylvania Constitution, this Court, after consideration of the objections raised in the above-captioned petitions, finds that the Final Plan of the 1991 Pennsylvania Legislative Reapportionment Commis
The deadline of February 18, 1992 for filing of nominating petitions is hereby extended until the close of business hours on Friday, March 6, 1992.
It is further ordered that as to the nominating signatures acquired prior to the date of this order, the same shall be deemed valid as to timeliness, subject, however, to any other statutory challenge.
Opinions will follow.
OPINION
FACTS
The Reapportionment Plan at issue is the third reapportionment plan since the 1968 amendment to the Pennsylvania Constitution that created the Legislative Reapportionment Commission. See Pa. Const. Art. II § 17.
The Legislative Reapportionment Commission consists of five members. Id. The majority and minority leaders of the House and the Senate, or their appointed deputies, choose the fifth member of the Commission as its chair. Id. If the Commission cannot agree on a chair, the Supreme Court is empowered by the Constitution to appoint the
On September 25, 1991, a majority of the Commission adopted the preliminary Legislative Reapportionment Plan. After objections were filed by the petitioners and publicly heard at a meeting on October 9, 1991, the Commission adopted the final plan on November 15, 1991. That plan is now the subject of our review. Pursuant to Subsection 17(d) of Article II of the Pennsylvania Constitution, the above-captioned appellants filed appeals to this Court within thirty days. See Pa. Const. Art. II § 17. On January 25, 1992, oral argument was heard on twenty-three matters, and two matters were submitted on the briefs.
On February 14, 1992, this Court entered an order that the Final Plan was not contrary to the law and denied the appeals. In that order we stated that an opinion would follow.
ISSUES
The present issues before this Court are whether the Final Plan comports with the Pennsylvania and United States Constitutions and the Voting Rights Act. 42 U.S.C. § 1971, et seq. Twenty-five appellants raise a number of similar issues regarding different counties and representative and senatorial districts. These issues may be characterized in the following ways:
1) Did the Reapportionment Commission violate the constitutional requirement of compactness and contiguity*343 and equality of population and the prohibition against the division of political subdivisions unless absolutely necessary?
2) Did the Reapportionment Commission’s Final Plan violate Federal Constitutional law by depriving various appellants of their rights under the Fourteenth Amendment to the United States Constitution?
3) Does the Plan fail for lack of an effective date, or in the alternative, may the court declare the effective date?
4) Is the Reapportionment Commission prohibited from renumbering even-numbered Senatorial Districts in a year in which odd-numbered seats are elected, in order to avoid the possibility of a special election?
5) Does the Final Plan reflect political gerrymandering which deprives two aspirants of their rights to run for office in their former districts?
6) Did the Final Plan violate provisions of the Voting Rights Act, 42 U.S.C. § 1971, et seq.l
7) May this Court order Discovery of the Commission members to determine motives for the Reapportionment Plan?
STANDARD OF REVIEW
The Constitution of this Commonwealth directs this Court to entertain appeals from any aggrieved person within thirty days of the filing of the final plan. 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 and directing the commission to reapportion the Commonwealth in a manner not inconsistent with such order.” Id. (emphasis added). As the Constitution clearly states, and as we have held in the past, “to prevail in their challenge to the final reapportionment plan, appellants have the burden of establishing not ... that there exists an alternative plan which is ‘preferable’ or ‘better’, but rather that the final plan filed by the Pennsylvania Reapportionment Commission fails to meet constitutional requirements.” In re Reapportionment Plan for Pennsylvania General Assembly, 497 Pa. 525,
Our Constitution empowers the Legislative Reapportionment Commission to reapportion the Commonwealth. Furthermore, this Court may only undertake to reapportion the Commonwealth if the Commission has not filed a plan within the constitutionally prescribed time limits, Pa. Const. Art. II § 17(g); absent that, this Court may only remand an unconstitutional plan back to the Commission for redraft ing. Id. at § 17(d).
BACKGROUND
In the landmark decision recognizing the link between state legislative apportionment and the right to equal protection under the laws of the states in the Fourteenth Amendment to the United States Constitution, the Supreme Court of the United States in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), held that “the 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 practicable”. Id. at 577, 84 S.Ct. at 1388. The Court established a framework for states to reapportion legislative districts built upon the notion that “the overriding objective must be substantial equality of population among the various districts.” Id. at 579, 84 S.Ct. at 1390. The Court recognized that the states have a legitimate interest “to maintain the integrity of various political subdivisions, insofar as possible, and provide for compact districts of contiguous territory in designing a legislative apportionment scheme.” Id. at 578, 84 S.Ct. at 1390. Because those two notions of equality of population and integrity of politi
At the same time that the Supreme Court of the United States was reviewing the state apportionment plan of the State of Alabama, this Court sustained the objections of Pennsylvania voters to the current reapportionment statutes. In Butcher v. Bloom [hereinafter referred to as Butcher I], 415 Pa. 438, 203 A.2d 556 (1964), this Court, having heard oral argument on the case prior to the filing of the opinion in Reynolds v. Sims, supra, relied on the United States Supreme Court’s ruling in its disposition of the case. This Court reviewed Sections 16 and 17 of Article II of the Pennsylvania Constitution of 1874 which governed the reapportionment of Senate and House districts in the Commonwealth after each federal decennial census. Id., 415 Pa. at 444, 203 A.2d at 559.
This Court ordered that the 1964 elections be held according to the then existing reapportionment scheme, but re
In 1968 the citizens of Pennsylvania amended the Constitution, and merged former Sections 16 and 17 into the amended Section 16. Pa. Const. Art. II § 16 (as amended); see Commonwealth ex rel. Specter v. Levin, 448 Pa. 1, 5, 293 A.2d 15, 18 (1972). This Section now provides:
The Commonwealth shall be divided into fifty Senatorial District and two-hundred and three Representative Districts, which shall be composed of compact and contiguous territory as nearly equal in population as practicable. Each Senatorial District shall elect one Senator and each Representative District one Representative. Unless absolutely necessary, no county, city, incorporated town, borough, township or ward shall be divided in forming either a Senatorial or Representative district.
Pa. Const. Art. 2 § 16.
DISCUSSION
After both the 1970 and 1980 Federal Census, this Court reviewed the constitutionality of the Pennsylvania Legislative Reapportionment Commission Final Plans. See In re Reapportionment Plan for Pennsylvania General Assembly, 497 Pa. 525, 442 A.2d 661 (1982) (hereinafter In re Reapportionment Plan); Commonwealth ex rel. Specter v. Levin, 448 Pa. 1, 293 A.2d 15, appeal dismissed, 409
With a fixed number of legislative seats to be apportioned “as nearly equal in population as practicable” and a “population density of this state [that] is quite uneven” in any apportionment scheme there is a certain degree of unavoidable noncompactness and a certain amount of subdivision fragmentation [that] is inevitable.
Id. (quoting Specter, 448 Pa. at 17-18, 293 A.2d at 23). We continue to hold the view that the equality of population necéssitates dividing political subdivisions. It would defy logic to argue that counties cannot be divided to apportion the senatorial and the representative districts when the ideal senatorial district population is 237,633, and the ideal representative district population is 58,531, yet fifteen counties have greater populations than the ideal senate district, and forty counties exceed the ideal representative district population. See 110 Pa. Manual 533 (1991).
The 1991 Final Plan has a total population deviation in its fifty senatorial districts of 1.87% from the ideal population of 237,633. The population deviation for the 203 representative districts is 4.94% from the ideal population of 58,531. This plan compares favorably with the final plans in Specter and In Re Reapportionment Plan
The Appellants argue that the population equality is not so important that it warrants the division of counties
EFFECTIVE DATE
Appellants raise the issue of the effective date of the 1992 Reapportionment Plan. Two arguments are raised. First, the plan is unconstitutional because it does not state the effective date and therefore one appellant whose residence is now outside of his senatorial district may not be able to retain his office. The same appellant asked this Court to exercise its extraordinary jurisdiction to declare an effective date of the Plan after the November 1992 election.
Senate House
1991 1.87% 4.94%
(237,633) (58,531)
1981 1.93% 2.81%
(237,334) (58,456)
1971 4.31% 5.45%
(235,949) (58,113)
“When the Supreme Court has finally decided on an appeal or when the last day for filing an appeal has passed with no appeal taken, the reapportionment plan shall have the force of law and the districts therein provided shall be used thereafter in elections to the General Assembly until the next reapportionment as required under this section 17.”
Id. (emphasis added).
Appellants request that we declare the effective date to be after the 1992 election with respect to those senatorial districts that are not slated for general election in 1992, i.e., the even-numbered Senatorial Districts. We have no power to grant that relief as our Constitution sets the effective date of the plan as above. The effective date of this plan was February 14, 1992, the day that this Court issued an order dismissing the above appeals.
44TH DISTRICT
The Final Plan includes a new Senatorial District No. 44 comprising parts of Chester, Lehigh, Berks and Montgom
Appellants argue that the staggered election mandated by Section 2209 of the Election Code, 25 P.S. § 2209, will be interrupted by the creation of a new even-numbered district. They argue that the only time the election scheme was interrupted was in 1966 when this Court reapportioned the Commonwealth and ordered that the Senators from the odd numbered-districts be only elected for two years. See Butcher II, 420 Pa. at 310, 216 A.2d at 459. Appellants argue that only when this Court declares a prior plan unconstitutional and undertakes to reapportion the Commonwealth itself may the terms of office be shortened. Because this Court had declared in 1964 that the plan was unconstitutional, Butcher I, 415 Pa. at 455 and 468, 203 A.2d at 566 and 573, the candidates and incumbents were on notice that their terms may be truncated.
The Constitution clearly states that “the reapportionment shall have the force of law and the districts therein provided shall be used thereafter in elections to the General Assembly until the next reapportionment as required under this Section 17.” Pa. Const. Art. II § 17(e) (emphasis added). The Constitution does not state “if required.” Thus on its face the Constitution clearly establishes a termination date for the reapportionment plan. Nowhere in Section 17 is there authorization to continue to use a prior
Our review of the Plan is limited to those enumerated constitutional requirements in Section 16 of Article II of our Constitution. That Section does not include a requirement that all senatorial districts be redrawn in such a manner that incumbent senators remain residents of their redrawn districts. The party leaders of both houses of the General Assembly adequately represent the interests of incumbents and it is within their sole discretion as members of the Legislative Reapportionment Commission to consider those interests when renumbering and redrawing the legislative districts.
In addition, Senators Pécora and Lewis are not automatically expelled from their Senate seats by the Commission’s actions. Only the Senate has the authority to judge the qualifications of its members. In re Jones, 505 Pa. 50, 58, 476 A.2d 1287, 1290-91 (1984); see Pa. Const. Art. II § 9. In Jones we held:
Article II is concerned with the composition, powers and duties of the legislature. Nothing in this article even remotely suggests the conference of jurisdiction upon the
*353 courts to test the qualifications of the members of the General Assembly. Indeed, Section 9 of Article II expressly states that each body of the General Assembly shall be the judge of the qualifications of its members.
In re Jones, 505 Pa. at 58, 476 A.2d at 1291 (footnote omitted). Thus the Senators incorrectly characterize the Commission’s actions as depriving the Senators of their offices.
Assuming that the Senate does not seat Senators Pécora and Lewis, nonetheless the Senators are not being deprived of a constitutionally protected interest. Appellants’ interest in their offices is a “highly circumscribed” interest. Sweeney v. Tucker, 473 Pa. 493, 524, 375 A.2d 698, 713 (1977).
An elected office is a public trust, not the private domain of the officeholder. A member of the Legislature has a profound responsibility to represent his constituents in the formation of public policy in this state. He holds office for the benefit of his constituents ... [and] is periodically accountable to his constituents through the electoral process____ A member of the Legislature is thus subject to the political process at all times____ This is properly so for the public interest in the office far outweighs any private interest of the officeholder. An elected official can never have tenure in the same sense as an ordinary public employee.
Id. Thus as we have held in the past, elected officials’ interest in their offices does not merit constitutional protection. Id. See also In re Reapportionment of the School District of the City of Pittsburgh, 507 Pa. 128, 488 A.2d 1106 (1985) (school directors have no legal right to serve out their elective terms superceding need for reapportioning of school districts); Commonwealth v. Moir, 199 Pa. 534, 49 A. 351 (1901); Lyons v. City of Pittsburgh, 137 Pa. Commw. 330, 586 A.2d 469, allocatur denied, 527 Pa. 670, 593 A.2d 845 (1991).
These appellants, and the Republican Committee of Chester County and Senator Loeper raise the argument that
If the Senate will not seat Senators Pécora and Lewis, the citizens of the district will be represented in the Senate by operation of the special election statute. See 25 P.S. § 2778.
Appellants’ claims may be categorized as a denial of access to the political process. They include a claim of political gerrymandering, a claim of deprivation of free and equal elections, and a violation of equal protection under the State and Federal Constitutions. These arguments fail.
The Supreme Court of the United States in Davis v. Bandemer, 478 U.S. 109, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986), addressed the political gerrymandering issue in the Indiana General Assembly’s Reapportionment Plan after the 1980 census. In that case, the Court upheld the General Assembly’s plan which allegedly disadvantaged the Democratic Party. The Court held that a political gerrymandering claim was a justiciable question and that members of one political party could bring a cause of action under the 14th Amendment to the Constitution of the United States Constitution alleging that their votes had been intentionally rendered ineffective to elect the representative of their choice. Id. at 126-28, 106 S.Ct. at 2807-08. The Court however, reversed the District Court’s verdict in favor of the Democrats because they had failed to establish a case. Id. at 143, 106 S.Ct. at 2815. The Court set out the following elements to prove a case: the plaintiff must establish: 1) intentional discrimination against an identifiable political group; 2) an actual discriminating effect on that group; and 3) a “history of disproportionate results appearing] in conjunction with strong indicia of lack of political power and the denial of fair representation.” Id. at 139, 106 S.Ct. at 2814. This Court is persuaded by the holding of the Supreme Court of the United States with regard to the elements of a prima facie case of political gerrymandering. No appellant here who raises a political gerrymandering claim has established the requisite elements under the three-part test as set forth in Davis v. Bandemer, supra.
Appellants Jones’ and Roberts’ claims of political gerrymandering fail because they are individual candidates
Appellants claim that the plan violates the constitutional mandate that “[ejections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” Pa. Const. Art. I § 5. This plan does not violate Section 5 of Article I of our Constitution. This Court has defined Section 5 in the following manner:
‘[Ejections are free and equal within the meaning of the Constitution when they are public and open to all qualified electors alike; when every voter has the same right as any other voter; when each voter under the law has the right to cast his ballot and have it honestly counted; when the regulation of the right to exercise the franchise does not deny the franchise itself, ... and when no constitutional right of the qualified elector is subverted or denied him.’
City Council of City of Bethlehem v. Marcincin, 512 Pa. 1, 8, 515 A.2d 1320, 1232 (1986) (quoting Shankey v. Staisey, 436 Pa. 65, 69, 257 A.2d 897, 898 (1969), cert. denied, 396 U.S. 1038, 90 S.Ct. 684, 24 L.Ed.2d 682 (1970)). Using this analysis, we find that the Commission’s final plan in no way deprives Appellants or any citizens of this Commonwealth of their right to free and equal elections. A candidate’s interest in a specific office can only be less than the incumbent’s interest, which has already been characterized as “highly circumscribed”. Sweeney v. Tucker, 473 Pa. at 524, 375 A.2d at 713. The aspirant has a right to run in his district for any office for which he is qualified; however, his right to run for office does not rise to a constitutionally protected level requiring the Legislative Reapportionment Commission to tailor its plan around the residences of
VOTING RIGHTS ACT
Several appellants raise objections to the Final Plan based upon the Voting Rights Act, 42 U.S.C. § 1971 et seq. (1988). The specific section implicated is Section 2 of the Act which provides:
§ 1973. Denial or abridgement of right to vote on account of race or color through voting qualifications or prerequisites; establishment of violation
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section.
(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
42 U.S.C. § 1973 (1988). The United States Supreme Court described the intended scope of the section as follows:
Subsection 2(a) prohibits all States and political subdivisions from imposing any voting qualifications or prereq*358 uisites to voting, or any standards, practices, or procedures which result in the denial or abridgment of the right to vote of a citizen who is a member of a protected class of racial and language minorities. Subsection 2(b) establishes that § 2 has been violated where the “totality of the circumstances” reveal that “the political processes leading to nomination or election ... are not equally open to participation by members of a [protected class] ... that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
Thornburg v. Gingles, 478 U.S. 30, 43, 106 S.Ct. 2752, 2762, 92 L.Ed.2d 25 (1986) (quoting 42 U.S.C. § 1973(b)).
It must be recognized that Appellants Loeper, et al., are not bringing an action for relief under the Voting Rights Act, but rather they are challenging the proposed plan on the ground that it does not conform with the Act.
The Voting Rights Act, 42 U.S.C. §§ 1971 to 1973bb-l, as amended in 1982, established a statutory cause of action which recognizes claims charging that a “standard, practice, or procedure” results in discrimination on the basis of race. 42 U.S.C. § 1973 (hereinafter referred to as Section 2 of the Voting Rights Act). In 1982, Congress amended Section 2 of the Voting Rights Act in response to the United States Supreme Court decision in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980).
In Bolden, a class action was successfully brought in the United States District Court for the Southern District of Alabama on behalf of the Black residents of the City of Mobile. The suit alleged that the City’s practice of electing commissioners at large by majority vote unfairly diluted the voting strength of Blacks in violation of the Fourteenth and Fifteenth Amendments of the Federal Constitution. Id. The District Court found the City’s plan unconstitutional, and the United States Court of Appeals for the Fifth Circuit affirmed the District Court’s ruling. Id. at 58, 100 S.Ct. at 1494. On appeal, the United States Supreme Court, although unable to agree on a majority opinion, reversed the decision of the United States District Court. Justice Stewart, in an Opinion Announcing the Judgment of the Court, joined by then Chief Justice Berger and Justices Powell and Rehnquist, reasoned that, once the court below found that Blacks could register and vote without hindrance, it was error to find that the Fifteenth Amendment was offended. Id. at 65,100 S.Ct. at 1498. This conclusion was based upon the premise that the Fifteenth Amendment does not guaran
In dissent, Mr. Justice Marshall articulated the view that proof of a discriminatory purpose to support a claim of vote dilution in violation of the Fourteenth and Fifteenth Amendments is not necessary. Id. at 103-105, 100 S.Ct. at 1518-20. To the contrary, he reasoned that the City’s at-large electoral scheme was violative of the Fourteenth and Fifteenth Amendments since it had the unconstitutional effect of diluting the Black vote.
Justice Brennan dissented and agreed with Justice Marshall that proof of a discriminatory impact was sufficient in the matter then before the Court and alternatively that discriminatory intent had been proven. Id. at 94, 100 S.Ct. at 1513. Justice White also in dissent expressed the view
Following the Bolden decision,
[F]irst, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single number district____ [S]econd, the minority group must be able to show that it is politically cohesive____ [T]hird, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it ... usually to defeat the minority’s preferred candidate.
Id. at 50-51, 106 S.Ct. at 2766-67 (citations and footnote omitted).
We will first address the complaint being raised to the Plan as it relates to the Senatorial Districts representing the City of Philadelphia. Appellants argue that the plan for Philadelphia fails to provide for any minority/majority districts where the minority population warrants such districts. Specifically, appellants assert that the plan drafted by the Commission has no “classic [Senatorial] minority/majority districts.” Appellants argue that the Commission “deliberately created a retrogressive plan resulting in the destruction of the three existing minority/majority seats and replacing them with four minority influence districts.” Appellants further charge that their proposed plan included four “classic” minority/majority senatorial districts within Philadelphia.
It must be emphasized that the scope of the instant challenge is very narrow. The test that has been established for determining the viability of the Commission’s plan is whether or not the plan meets constitutional requirements. Pa. Const. Art. II § 17(d). The mere fact that other plans may be offered is of no moment, unless appellants establish that the plan submitted by the Commission is “contrary to law.” Pa. Const. Art. II § 17(d); see In Re Reapportionment Plan, 497 Pa. at 532, 442 A.2d at 665; see also Gaffney v. Cummings, 412 U.S. at 750-51, 93 S.Ct. at 2330-31. Once that plan is found to meet constitutional mandates, the issue of the merits of any proposed plan is irrelevant. Id.
The issue to be focused upon is the interpretation sought by appellants to determine when a group is to be considered “sufficiently large and geographically compact to constitute a majority in a single member district____” Thornburg v. Gingles, 478 U.S. at 50, 106 S.Ct. at 2766. Appellants insist that this requires the creation of districts with 65% minority populations. The Commission’s plan created four minority/majority districts ranging from 60%
One of the intents of Congress in its passage of the Voting Rights Act and its subsequent amendments was incorporating minority voters into the entire political process. See Thornburg v. Gingles, 478 U.S. at 36-38, 106 S.Ct. at 2758-60. This intent can best be served by having the greatest number of minority/majority districts possible. The statutory language prescribing minority participation in the political process is maximized when there are more and
The 1991 plan, which creates an additional minority/majority senatorial district is based on the assumption that minority/majority district requirements are satisfied where the Black voting age population is maintained between 58% and 56%. The plan provides for Senate District No. 3 which will have a Black population of 60.63% and a Black voting age population of 58%; Senate District No. 4 which will have a 61.52% Black population and a Black voting age population of 58%; Senate District No. 7 with a Black population of 61.81% and a Black voting age population of 58%; and finally Senate District No. 8 with a Black population of 60.14% and a Black voting age population of 56%. Thus the ultimate result is that Blacks voters would have the opportunity to enjoy majority status in four (4) of the seven (7) Philadelphia senatorial districts. This result clearly fits within the intent of the Voting Rights Act.
Appellant Loeper also argues that the Commission failed to create a minority influence senate seat in Pittsburgh. A minority influence claim is one “brought by a minority group, not sufficiently large and compact to constitute a majority in a single-member district and thereby elect the candidate of their choice, but sufficiently large and geographically cohesive to influence elections.” Thornburg v. Gingles, 478 U.S. 30, 46 n. 12, 106 S.Ct. 2752, 2764 n. 12, 92 L.Ed.2d 25 (1986). See Chisom v. Roemer, 501 U.S.-, -n. 24, 111 S.Ct. 2354, 2365 n. 24, 115 L.Ed.2d 348, 364
DISCOVERY
The final request of various appellants is for this Court to Compel Discovery of the underlying motives and purposes of the Commission members and its staff. The Commission raises legislative immunity in its response to Appellants’ discovery requests. We need not resolve this issue because we have already held that the plan on its face does not violate the Constitution of Pennsylvania, the Constitution of the United States, or the Voting Rights Act. Therefore any evidence of the motives or discussions of the Commission or its staff is irrelevant and those requests are denied.
Accordingly, the final plan of the 1991 Legislative Reapportionment Commission for the Pennsylvania Senate and House of Representatives complies with all constitutional and statutory requirements, and shall be used hereafter in elections to the General Assembly until the next Reapportionment is constitutionally required.
. This year the Supreme Court appointed Robert J. Cindrich as chairman of the Legislative Reapportionment Commission. See In Re Appointment of Chairman of the Legislative Reapportionment Commission, Judicial Administration Docket No. 105A, May 6, 1991.
. Mr. Justice Larsen did not participate in the consideration or decision of these cases.
Mr. Justice Flaherty did not participate in the consideration or decision of Nos. 190, 194, 196, 199 and 201 E.D. Misc. Dkt. 1991; Nos. 49 and 51 M.D. Misc. Dkt. 1991; and No. 138 W.D. Misc. Dkt. 1991.
Mr. Justice Papadakos did not participate in the consideration or decision of Nos. 190, 194, 196, 199 and 201 E.D. Misc. Dkt. 1991; Nos. 49 and 51 M.D. Misc. Dkt. 1991; and No. 138 W.D. Misc. Dkt. 1991.
. Those two sections provide as follows:
Sec. 16. Senatorial districts; ratio
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 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 of 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.
Sec. 17. Representative districts
The members of the House of Representatives shall be apportioned among the several counties, on a ratio obtained by dividing the
. At the same time that this Court was hearing Butcher I, the United States District Court for the Middle District of Pennsylvania had declared that Section 16 and 17 of Article II of the Pennsylvania Constitution violated the Fourteenth Amendment guarantee of equal protection in the United States Constitution. See 229 F.Supp. 310; Butcher I, 415 A.2d at 443 n. 5, 203 A.2d at 559 n. 5. The District Court enjoined state officials from conducting the 1964 elections. A stay was granted on the District Court order pending appeal to the Supreme Court of the United States, and that Court vacated the District Court’s judgment based upon this Court’s holding in Butcher I. Scranton v. Drew, 379 U.S. at 42, 85 S.Ct. at 208; see Butcher v. Bloom,
. Total Percentage Deviation from Ideal District Population (Ideal in Parentheses)
. See Brown v. Thomson, 462 U.S. 835, 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983) (average deviation of 16%); Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973) (7.83% maximum deviation); White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973) (9.9% maximum deviation).
. Appellant Lewis raises a residency issue as well in his appeal from the final plan, and alleges that it will be impossible for an incumbent senator to have resided in his district for a year before the election, and for all four years of his tenure (as mandated by the Constitution) if the Senatorial Districts are altered by the Reapportionment Commission. This issue is not yet ripe for review because no senator has suffered adverse consequences in the form of losing a seat for failure to satisfy the residency requirement. However, we would note that the constitutional residency requirements may conflict with the constitutional mandate of reapportioning the Commonwealth every ten years. In light of that conflict, it may be necessary that residency requirements be waived when the Commission reapportions the Commonwealth less than one year before an election. These issues and possible resolutions are for the Senate to decide. See In re Jones, 505 Pa. 50, 476 A.2d 1287 (1984). This Court will reserve ruling on this issue until such time that a particular party suffers injury at which point we will address the apparent conflict between the constitutional provisions.
. § 2778. Special elections for Senator and Representative in The General Assembly
Whenever a vacancy shall occur in either house of the General Assembly whether or not it then be in session, the presiding officer of such house shall issue a writ of election to the proper county board or boards of election and to the Secretary of the Commonwealth, for a special election to fill said vacancy, which election shall be held on a date named in the writ, which shall be not less than sixty (60) days after the issuance of said writ. The presiding officer may fix, in such writ of election, the date of the next ensuing primary, municipal or general election as the date for holding any such special election: Provided, however, That should the Governor after the issuance of said writ of election advise the presiding officer that the General Assembly will be called into extraordinary session prior to the date set for such special election, the presiding office may countermand the writ theretofore issued and shall issue a new writ of election, fixing therein such earlier date therefor as is deemed expedient, but which shall not be less than sixty (60) days after the issuance of said writ.
. This Court has never addressed the constitutionality of the special election statute for members of the General Assembly. However, in an analogous case, the United States Court of Appeals for the Third Circuit upheld as constitutional the special election statute governing a temporary vacancy in a United States Senate seat. Trinsey v. Commonwealth of Pennsylvania, 941 F.2d 224 (3rd Cir.) rev’g 766 F.Supp. 1338 (E.D.Pa.), cert. denied, — U.S.-, 112 S.Ct. 658, 116 L.Ed.2d 750 (1991).
. Appellants Clarence Thompson, Leroy Green and Henrietta Bennett all raise claims under Section 2 of the Voting Rights Act as "aggrieved persons", 42 U.S.C. § 1973. While it is true that they satisfy the standing requirements, see Roberts v. Wamser, 883 F.2d 617, 621 (8th Cir.1989) (“those seek[ing] judicial enforcement of the prohibition against the infringement of the right to vote on account of race”), they are not in the proper forum to prosecute a claim under the Voting Rights Act. See 42 U.S.C. § 1971(d) (granting jurisdiction to the United States District Courts).
Our Constitution requires this Court to determine whether “the plan is contrary to law.” Pa. Const. Art. II, § 17(d). Therefore, the plan must be in accord with both State and Federal Law. In this instance it is being argued that Federal Law (i.e., the Voting Rights Act) would be violated by the final plan. Thus, we are called upon to address the legitimacy of the appellants’ claim. For the reasons set forth in the text, it is our view that the plan is not contrary to the Voting Rights Act.
. Justice Blackmun concurred in the result, id. at 80, 100 S.Ct. at 1506, and Justice Stevens concurred in the judgment, id. at 83, 100 S.Ct. at 1508.
. One distinction between the opinion of the Court and the dissenting opinion of Mr. Justice Marshall is that Mr. Justice Marshall characterized the right to cast an effective vote as fundamental. As a result, the deprivation of a fundamental right requires strict scrutiny without any showing of discriminatory purpose. This differs from the plurality’s decision that the only fundamental right is participation on equal footing with other voters. There is no constitutional right to equal representation for identifiable political groups, and, therefore, a deprivation of the right to equal representation based upon racial consideration must be accompanied by a discriminatory purpose in order to merit strict scrutiny.
. As a result of the Bolden decision, Congress, in 1982, amended the Voting Rights Act and created what is now known as the "results test”. The Supreme Court, in 1986, interpreted the "results test" for the first time after the amendment in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986).
. The Third Senatorial District is currently represented by Senator Roxanne H. Jones, the Seventh Senatorial District is currently represented by Senator Chakah Fattah, and the Eighth Senatorial District is currently represented by Senator Hardy Williams. 110 Pa. Manual 95-96 (1991). None of the present incumbents have joined in the instant attack upon the Commission's plan, nor have they evinced in any way their concurrence in the alleged concerns.
. The 65% figure has been used by the Department of Justice as a benchmark for preclearance procedures when a state submits its reapportionment plan to the Department of Justice for approval. United Jewish Organizations, Inc. v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977); Bybicki v. State Board of Elections of Illinois, 574 F.Supp. 1147, 1149 n. 4 (N.D.Ill.1983). However, this 65% benchmark has never been required by the courts, particularly in a district or state which has not been the subject of a determination by the Attorney General under 42 U.S.C. § 1973(b) that tests or devices are maintained to deny or abridge the right to vote based upon racial considerations. Therefore, there is no reason nor authority for this Court to recognize this benchmark in the present appeal.
. The inability of Blacks historically to exercise the right to vote granted by the Fifteenth Amendment was not the result of apathy, but rather from the Black voters’ inability to overcome barriers set up by hostile Whites which included poll taxes, literacy tests, intimidation, violence and other schemes more subtle to discourage their participation.
. The present appeal is clearly distinguishable from the facts and holding of the Armour decision. In Armour, the three-judge panel of the District Court found that there was historical and intentional discrimination violating the Voting Rights Act, the Fifteenth Amendment to the United States Constitution, and the Constitution of Ohio. 775 F.Supp. at 1061. It is also noteworthy that the relief ordered by the court in Armour resulted in a minority influence district constituting “nearly one-third of the voting age population.” Id. at 1059. In this case, the minority population of the 38th Senatorial District is greater than 34%.
. It should be noted that the final plan does contain the 38th Senatorial District in Allegheny County with 34% African-American population. Without establishing any criteria for minority influence districts, this Court would note that it would appear that 34% of the population of a district would provide the minority an opportunity to influence the outcome of elections. See Chisom v. Roemer, 501 U.S. at -n. 24, 111 S.Ct. at 2365 n. 24, 115 L.Ed.2d at 364 n. 24.
