*1 LEAGUE OF WOMEN of VOTERS
Pennsylvania, Febo Mi Carmen San Solomon, Greiner,
guel, James John Capowski, Brandt,
John Gretchen Rentschler, Mary
Thomas Elizabeth Lancaster,
Lawn, Isaacs, Lisa Don Comas, Smith,
Jordi Robert William
Marx, Mantell, Priscilla Richard
McNulty, Ulrich, Thomas Robert
McKinstry, Lichty, Mark Pe Lorraine
trosky, Petitioners
v. Pennsylva
The COMMONWEALTH of
nia; Pennsylvania Assem General
bly; Wolf, capacity Thomas his W. Pennsylvania;
as Governor Michael III, capacity
J. his as Lieu Stack Pennsylvania
tenant Governor Pennsylvania Senate;
President of the Turzai, capacity
Michael C. in his as
Speaker Pennsylvania House
Representatives; Joseph B. Scarnati
III, capacity Pennsylvania in his Tempore;
Senate President Pro Rob Torres, capacity Acting
ert his
Secretary the Commonwealth
Pennsylvania; Marks, M. Jonathan capacity
his as Commissioner Commissions, Elections,
Bureau Legislation State,
Department Respondents
No. 159 MM 2017
Supreme Pennsylvania.
Argued: January February 7,
Filed: *3 Bergman, Esq., Michael
Andrew David Geffen, Churchill, Esq., Benjamin David Center, Esq., Public Interest Law John Freedman, Gersch, Esq., Arak David Paul Jacobson, Esq., R. Esq., Daniel Frederick Williams, Jones, McKenzie, Teti, Esq., Willig, Esq., Alaine S. Esq., Mary M. Stanton Davidson, for Williams & Robinson, Coun- Esq., AFSCME Elisabeth S. John Esq., al, cil Theodore, et Curiae. Amicus Esq., for Petitioners. Atkins, Andrew Ehr- Esq., A. J. Aronchick, Esq., De Robert Claudia
Mark Alan lich, Esq., Groombridge, Esq., Nicholas Palma, Hangley, Esq., D. Esq., Michele Pernick, Signoracci, Esq., Pietro Michael Segal & Pudlin Schil- Aronchick Hangley Esq., Esq., Berson Curtin Yeager, Jordan Howell, ler, Esq., Paul Governors Thomas LLP, Pro- & Heefner for Political Science Counsel, Timothy Eu- Office of General fessors, Amicus Curiae. Everhart, Gates, Blythe Ian Esq., gene Kotula, Esq., Marie Penn- Esq., Kathleen Bazelon, Esq., Bazelon Less Richard L. sylvania Department of State Feldman, P.C., & Brennan for The Center Counsel, Governor- Office General' University York Justice New School Marks, Wolf, Torres, Re- Jonathan Robert Law, Curiae. Amicus *4 spondents. LLP, Black, Jay .Esq., Dechert Martin Levine, Esq., B. Alex Michael
Clifford Cause, Common Amicus for Curiae. Birmingham Mitinger, Esq., Alice Lacey, Bondy, Esq., Thomas M. Hannah Gar- P.C., Esq., Grigsby, & Lazar Mel- Cohen den-Monheit, Esq., Kilmar- Alison Melissa Palnick, Stack, ton for Lt. Esq., Governor Rosenkranz, tin, for Esq., Esq., E. Joshua III, Respondent. Grofman, Bernard, Amicus Curiae and Bloom, F. Esq., Jonathan Karl Gaddie, Keith, Ronald Amicus Curiae. Sfewart Ronon, Stradley, Myers, Esq., Stevens <& Leckman, Diver, Esq., E. Edward Peter L.L.P., for Young, Pennsylvania General Diver, P.C., Esq., Langer Grogan & for Assembly, Respondent. Center, Legal Campaign Amicus Curiae. Gallagher, Carolyn Esq., A. Kathleen Martin, Christopher Esq., James Traci McGee, Giancola, Esq., Batz Russell David Rea, Esq., Wrabley, Colin Emmet Sands McLean, Raymond Esq., Ci- Esq., Jason LLP, Esq., Pittsburgh for Reed Smith Werner, P.C., Hall, Esq., & priani John E. Foundation, Amicus Curiae. Lewis, Tucker, Esq., Patrick'T. Robert J. Walczak, Esq., Civil Witold J. American Braden, Esq., Esq., for Effrem Mark Union, for Liberties Civil Liber- American Turzai, Speaker C. House Michael Pennsylvania, Union of Amicus Curiae ties Respondent. Union, Civil Na- American Liberties Torchinsky, Esq., Sheehy, . Jason Shawn tional, Amicus Curiae. Wixted, Esq., John Patrick Brian Esq., S. Gordon, Anthony & Esq. Brian Gordon Paszamant, Esq., Jason Adam Snyderman, Ashworth, P.C., for Citizens for Concerned LLP, Esq., Blank Rome Pro President Democracy, Amicus Curiae. Scarnati, III, Tempore Joseph Respon- B. ' n dent. SAYLOR, TODD, C.J., BAER, WECHT, DONOHUE, DOUGHERTY, Tabas, Obermayer Esq., J. Lawrence MUNDY, JJ. LLP, & Hippel Timo- Rebmann Maxwell Ford, Esq., Lee War- thy James Rebecca OPINION al, ren, McCann, Inter- Esq., et Brian JUSTICE TODD venors. Aronson,. , Esq., principle republican R. is a core of our Irwin William John It
. Bielski, government form of the. voters Esq., Hoye, Esq., “that Lauren Miller not Ralph representatives, J. should Amy Rosenberger, Esq., choose Louise way case, In the other this Peti- Women Voters3 regis- around.”1 and 18 voters—all Democrats, allege that the tered tioners Con- one from each of our (the gressional Redistricting Act of 20112 state’s against districts — Plan”) latter, Wolf, “2011 does the Thomas infringing W. Lieutenant . Governor Stack, III, upon most central of Secretary Governor Michael J. democratic Torres, rights right Specifically, to vote. Robert they Jona- Commissioner —the 2011 Plan contend that the is an than Marks unconsti- M. (collectively, “Executive partisan Respondents”), tutional gerrymander. Assembly, While fed- General have, date, courts Tempore eral President been unable Senate Pro B. Joseph Scarnati, III, settle a workable which to Speaker standard' and House Michael assess such C. (collectively, “Legislative claims under federal Con- Turzai Re- stitution, spondents”).4 we no alleged find such barriers under Petitioners that the great Pennsylvania our 20Í1 .peo- charter. The Plan provisions violated .several ple of this Commonwealth should never our state Constitution. that, sight
lose
protection
the fact
its
.
22, 2018,
January
On
this Court entered
rights,
founding
essential
our
document
per
agreeing
curiam order6
with Peti-
ancestor,
offspring,
tioners,
deeming
Plan to
Constitution,
federal
We conclude
“clearly, plainly
palpably
violate[]”
matter,
provides
a constitutional
Constitution,
our
enjoined
state
its
and so
standard,
remedy,
if
even
the federal
Order,
further use.7 See
fur-We
1/22/18.
charter
not.
Specifically,
does
we hold
*5
.that,
ther provided
if the'
Assem-
General
I,
the 2011 Plan violates Article
Section
bly and the Governor
not
a re-
did
enact
Equal
5—-the Free and
Elections Clause—
15, 2018,
plan by February
medial
this
Pennsylvania
of the
Constitution.
Court
For
plan.
would choose
remedial
challenge
endeavors,
brought
herein was
in those
forth the
we set
criteria
Petitioners,
by
June
League
2017
in
applied measuring
the constitu-
Berman,
Gerryman
Managing
judge panel
1. Mitchell N.
of the United States District
781,
(2005),
dering,
quot
83 Tex. L. Rev.
781
Court for the Eastern District of
Legislature
ed in
State
v.
In
rejected
Arizona
Arizona
petitioners' challenge.
Agre
See
v.
—
Comm’n,
U.S. —,
dep. Redistricting
135
591,
Wolf,
F.Supp,3d
WL 351603
2Ó18
2652, 2677,
(2015).
S.Ct.
posed of purpose every years ap- en equal as nearly prac- ry; population portioning the States House of United ticable; any and which divide do Following the Representatives. 2010 feder- town, incorporated borough, county, city, census, Pennsylvania’s share al ward, township, or neces- except where was from 19 to 18 House mem- reduced equality population. sary to ensure result, As Commonwealth bers.10 ¶ Order, 1/22/18, Order in- “Fourth.”8 Our congressional required to its redraw dis- that an follow. opinion dicated would This map. trict Opinion, emphasize is that and we rationale, nothing Pennsylvania’s our explicating while districts with, Opinion by legislature is to conflict or are drawn intended the state statute, alter, any way regular subject by set forth in veto the mandate January process Governor.11 While this is Order 2018.9 dictated our case, Thus, January Respon- complex Legislative 8. On and nuanced. involves, instance, application process filed with this dents Court an in the first Court's Order, stay alleging of our the Order would drafting opinion majority of an elections, and, author, course, have a chaotic effect on the 2018 involves exhaustive impor- arguing implicated Order multiple with research interactions other they question law on which tant federal majority opinion complet- is Justices. Once a appeal base an United to the States would ed, other circulated to all of the Justices Supreme Court. filed a similar Intervenors point, for their review At that and comment. applications application. Both were denied on opportunity each other Justices has 25, 2018, January noted dissents concurring his or her own write dissent- Saylor, Justice Baer Chief and Justices ing opinions, expressing Justice’s ulti- 26, 2018, Mundy. January Legislative On Re- presented. mate views the issues These *6 spondents filed with the United States Su- responsive opinions then are circulated to the preme emergency application Court an for a responses, any. Only if other then, for their Justices 22, Order; stay January this Court's every after member of the Court has 5, February application was the denied on opportunity been afforded the time and to 2018. views, express opinions his or her are the majority opinion, point, finalized. At a description process 9. A brief of the Court’s in along any concurring with and dissenting issuing opinions orders with follow is in- opinions, Prothonotary with our filed Upon agreement majority structive. public. process, Court, enter, released to the It is a and it is may shortly the Court the after rigorously one to which argument, this adheres. briefing and per curiam order mandate, setting forth court’s so that the 94-171, by Congress Public 10. Law enacted parties are aware of ultimate deci- the court’s 1975, requires the Census Bureau to deliv- may particu- accordingly. act This is sion and redistricting er matters, to state officials for results larly is so election where time legislative redistricting. § See 13 U.S.C. 141. minority, the essence. in the or who Justices census, order, For any federal the Census Bu- disagree part may issue statements, required redistricting reau concurring was deliver data dissenting or brief 2011, 1, April to the may simply note states no later than with or concurrence from the order. dissent is, contrast, however, By legislative The Court a deliberative the state lines are still meaning by pursu- body, there drawn commission is a na- five-member back-and-forth Constitution, only legal decision-making, ture but to ant Const, See Pa. II, Many analyses, § analysis. such as those art. law, by delegated it is federal states. of redistricting, purpose the ostensible The federal Constitution’s Elections receiving testimony public comment provides Times, Clause Places subject “[t]he on the of redistricting generally. of holding and Manner Elections for Sena- 14, September 2011, 1249, On Bill Senate Representatives, pre- tors and shall be 1520, Printer’s Number principally spon- Legislature scribed in each by State Republican sored leadership, was thereof,” Congress unless should “make or introduced, but absolutely contained no in- Const, Regulations.” alter such U.S. art. concerning formation the boundaries of 4,§ cl. 1. Pursuant to the Elections any congressional districts. On December Clause, passed 2a, § Congress 2 U.S.C. 7, 2011, bill brought up was for first provides following the decenni- consideration, and, 11, 2011, on December reapportionment, al census and Clerk for second consideration. House of Representatives shall Thereafter, the bill was referred “send to the executive of each State Committee, Senate State Government certificate of the Representa- number of where, 14, 2011, on December was tives to which such State entitled” reprinted amended and as Bill Senate state shall be “in redistricted the man- 1249, 1862, provid- Printer’s Number now provided by ner the law thereof.” 2 U.S.C. ing proposed boundaries for each Penn- § so, If the Repre- 2a. state does not do sylvania’s congressional districts, be- sentatives are to be elected further being reported fore out of committee. The
provided in Section 2a.12 day, bill same was referred Committee, Senate Appropriations Passage where
B. Plan again it was and reprinted amended Plan, 1249, The Senate Bill was 1249, 1869, Bill Senate Printer’s Number 2011, 22, enacted setting December reported out of committee to the Pennsylvania’s forth congressional dis- There, floor. Jay Democratic Senator Cos- tricts.13 In the November 2010 general ta bill introduced amendment he election, Republicans voters elected to ma- modify indicated it to create 8 would Re- jorities in both houses of the General As- districts, publican-favorable 4 Democrat- sembly Republican, elected Tom districts, swing districts, favorable and 6 Corbett, Thus, as Governor. to adopt but Senate declined Republican-led Assembly General passed Bill amendment and Senate with reconstituting Pennsylvania’s tasked vote, Printer’s Number a 26-24 districts, reducing their all voting against passage. with Democrats one, number adjusting their bor- day, same Bill Senate Printer’s light population changes ders re- *7 1869, proceeded Number 11, the House of May flected 2010 Census. On 9, 14, 2011, Representatives, referred to Pennsylva- June and June where it was nia Committee,' House Senate State Government the House State Government Committees hearings subject reported held on the out committee. The next 12. Both the particular, fashioning Elections this Clause and Section 2a interpreted envisioning have been that the districts a matter we discuss is redistricting process subject VI, will be to state fully "Remedy.” more below in Part restrictions, veto, including gubernatorial law remedies, referenda, judicial citizen and even history joint stipula- 13. This is based on the reconstitution, initiative, via citizen of the parties. Stipulation tion of the See Joint authority independent to redistrict into redis- Facts, 12/8/17. tricting agencies. generally, The role of courts 15, 2011, The 2011 Bill C. Plan
day, December Senate 1869, 1249, brought Printer’s Number description A the 2011 Plan some consideration, and, on Decem- up first A appropriate.15 is its characteristics 19, 2011, consideration. On De- ber second is 2011 Plan map entire attached 2011, 20, bill was referred to cember Appendix A. Committee, re-' Appropriations House committee, ported passed out in. 1. The Districts vote, voting 136-61 with 36 Democrats On December passage,14 favor of Congressional 1st District a. 1249, Printer’s Number Bill Senate governor’s Congressional to the desk is proceeded District com The 1st parts of Philadel signed, posed Corbett Delaware then-Governor where Counties, appears phia 2011 Plan. as follows: Act 131 into law as See Joint Exhibit
14., legislative history Notably, of the 36 who vot 15. As with Democrats passage Plan, ed in favor of serve districts description upon joint within based 1st, 2nd, 13th, 14th, Congressional or 17th stipulation parties. Districts, which, herein, are as detailed safe *8 under 2011 Plan. Democratic districts Congressional posed b. 2nd District parts of Montgomery and Phila Congressional 2nd District is com delphia Counties, appears as follows: and. Exhibit Joint See *9 Counties, Clarion, Congressional together parts of
c. 3rd District Erie, Counties, Crawford, Lawrence Congressional is com 3rd District Butler, appears posed Armstrong, and Mercer follows: Exhibit See Joint *10 Congressional 4th gether parts
d. District with of Cumberland and Dau phin Counties, appears follows: 4th Congressional The District is com Counties, posed of York to Adams and
See Joint Exhibit Potter, Congressional Venango, Counties,
e. 5th District to Warren Clarion, Crawford, parts gether District com Congressional 5th Erie, Counties, Huntingdon, Tioga Cameron, Centre, Clearfield, posed of Forest, Jefferson, McKean, Clinton, Elk, appears follows: *11 See Exhibit 10. Joint Congressional Counties, Montgomery 6th District appears
f. follows: com Congressional The 6th District Berks, Chester, Lebanon,
posed parts *12 Joint Exhibit 11.
See
g. Congressional ware, Lancaster, Montgomery District Coun 7th ties, appears follows: Congressional District is com
The 7th Chester, Berks, posed parts Dela
See Joint Exhibit Congressional parts Montgomery h. 8th District County, appears as follows: Congressional com The 8th District County, Bucks
posed together
See Joint Exhibit 13. Counties, Congressional Fulton, together 9th District and Indiana
i. Greene, Cambria, Hunting- parts of com Congressional 9th District don, Somerset, Washington, West- Bedford, Counties, Blair, Franklin, as follows: Fayette, appears moreland posed Exhibit Joint See *15 na, Congressional Union,
j. Counties, 10th Wayne together District Lackawanna, Monroe, parts Nor- 10th District Congressional is com thumberland, Perry, Counties, Juniata, Tioga Bradford, posed Lycoming, Mifflin, Sullivan, Pike, Snyder, Susquehan appears as follows: See Joint Exhibit *16 Counties, parts ming together with Congressional
k. District 11th Luzerne, Carbon, Cumberland, Dauphin, is com Congressional The 11th District Counties, Northumberland, Perry Columbia, Montour, follows: Wyo appears as posed of See Joint Exhibit *17 Congressional 12th-
l. District parts Allegheny, Cambria, Lawrence, Somerset, Counties, and Westmoreland 12th Congressional is com District posed of County, together Beaver appears with and as follows: Joint Exhibit 17. See *18 Congressional Phila parts posed Montgomery
m. 13th District of. is com Congressional The 13th District Counties, delphia appears follows: See Joint Exhibit 18. Congressional
n. 14th posed parts District Allegheny and West- Congressional The 14th District is com Counties, moreland appears as follows: *19 See Joint Exhibit Lebanon, Berks, Congressional Northamp Dauphin,
o. 15th District Counties, and as follows: appears ton Congressional 15th District is com Lehigh parts of County posed
See Joint Exhibit p. Congressional Berks, Chester, 20th posed parts District and Lan Congressional
The 16th District is com Counties, appears caster as follows: *21 See Joint Exhibit Luzerne, Monroe, Carbon, Lackawanna, Congressional
q. District 17th Counties, appears Northampton is com District Congressional The 17th as follows: parts County and Schuylkill posed *22 Joint
See Exhibit Congressional 18th r. District Washington, Counties, and Westmoreland :s appears as follow Finally, Congressional the 18th District Greene, composed parts Allegheny, See Joint Exhibit 23. delphia Counties are each among divided congressional districts; Cambria, three
2. Other Characteristics Carbon, Clarion, 'Crawford, Cumberland, Delaware, Erie,19 Greene,. Pennsylvania, Of the 67 Huntingdon, counties Lackawanna, Lancaster, Lawrence, Plan divides total Leba- counties non, Luzerne, congression- Monroe, between at least two different Northampton,20 *23 Northumberland, al Montgomery Somerset, districts:16 is County Perry, divid- Tioga, among congressional districts; ed five Washington Counties -áre split each Berks and Westmoreland Counties are congressional between two districts.21 Ad- among congressional whereas, each four divided dis- ditionally, prior 1992, no mu- 17 tricts; Chester,18 Allegheny, and Phila- nicipalities Pennsylvania were divided previously 16. The 2011 City Plan also consolidates separated 18. The of Coatesville is from Plan, split of Chester prior County. remainder counties: to the 2011 Arm- Butler, Mercer, strong, Venango, Warren 2011, 19. From County at least 1931 until Erie split congressional Counties were between split congressional was not between districts. districts, whereas, Plan, they under the 2011 City separated 20. The is Easton from are not. Northampton County. remainder City Reading separated 17.- The is from the total, congressional 21. In 11 18 dis- County. remainder of Berks From at least tricts contain than three counties which more 2002, County 1962 to Berks en- situated multiple among congressional are divided dis- tirely single congressional within a district. tricts. Rothfus, districts, prevailed in biannu has each among multiple congressional who 2.66%, 68, al Pennsyl- election thereafter. 2011 Plan divides at municipalities between least two vania’s History D. Electoral Congressional districts.22 As claims and grounding parties’ above, Finally, As as General noted briefly evidentiary presentations, we re- reducing sembly the num was tasked with history view the Commonwealth’s electoral Pennsylvania’s congressional dis ber the 2011 was enact- and after Plan before 18, necessitating tricts above, map for the 2011 ed.23As noted congressional two placement at least par- A. The Appendix Plan attached is same The into the district. incumbents copies congres- provided prior ties have placed Plan then-Democratic Con 1943, 1951, 1962, maps sional district —for Congressional Dis 12th gressman 2002—-which were Mark Critz and then-Democratic trict Pennsylvania Manual.24 procured from the 4th Congressional Congressman for They attached Exhibit are Joint Altmire into the same dis District Jason See Stipulations of Fact. Joint Joint faced in an Notably, trict. the two off ¶ Facts, 12/8/17, Stipulation election, ensuing primary which Critz Pennsylvania gener lost subsequently He The distribution seats prevailed. is now-Congressman Keith from 1966 to 2010 shown below: al election Monroeville, Cain, Archbald, Barr, Cumra, Wyomissing. municipalities include 22.The Carbondale, Bethlehem, Cain, Chester, Township Cuna- Spring split sep- are into three Bradford, Carroll, ra, Darby, East East East Three of arate districts. these Norriton, Fallowfield, Glenolden, Harrisburg, municipalities Springs, Shippens- —Seven Harrison, Hereford, Horsham, Hatfield, Ken- burg, naturally divided be- Trafford—are Alsace, nett, Laureldale, Lebanon, Lower counties, multiple tween and Cumra natu- Merion, Gwynedd, Lower Mechanics- Lower Additionally, rally noncontiguous. wards in Millcreek, Monroeville, burg, Morgan, Muh- split Harrisburg Bethlehem between Cambria, Lebanon, lenberg, North Northern congressional districts. Perkiomen, Penn, Olyphant, Pennsbury, Phil- Plainfield, Plymouth adelphia, Piney, Town- above, 23.' As this information is derived from Riverside, Robinson, Ridley, Sadsbury, ship, Stipulation parties’ Joint of Facts. Springs, Shippen, Shippensburg, Seven Shir- Stroud, ley, Spring, Susquehan- Springfield, Tinicum, Pennsylvania regularly Manual is a Trafford, na, Allen, Throop, Upper published book Dublin, issued Upper Darby, Upper Gwynedd, Upper Department cite it Merion, of General Services. We Hanover, Upper Upper Upper Naza- See, Hanover, e.g., reth, Bradford, v. authoritative. Common- West West West Erfer A,2d Norriton, Whitemarsh, wealth, (2002). Whitehall, Whitpain, Pa.
763 Republican Year Districts Democratic Seats Seats 27 1966 14 13 1968 27 14 13 1970 27 14 13 1972 25 13 12 1974 25 14 11 1976 25 17 8 1978 25 15 10 12[25] 1980 25 12 1982 23 13 10 1984 23 13 10 1986 23 12 11 1988 12 11 2?
1990 23 11 12 1992 21 11 10 21 1994 11 10 1996 21 11 10 1998 21 11 10 2000 21 10 11 2002 1Ó 7 12 2004 19 . 7 12 2006 19 11 8 19 ¶ 12/8/17, Facts, Stipulation
Joint at 70. representative, Republican 25. One elective Thomas M. crat or in 1980. Foglietta, was not as either a Demo- elected *25 the 2011 n with in average of the vote an of 73.6% In elections the three since each, again won enacted, Republicans whereas won the Democrats have Plan was districts, of average an districts, with congressional have Republicans same five In vote in each.27 Demo- 63.4% Ofthe In the 2012 the same 13 districts. won vote share election, crats a 44.5% statewide congressional five earned Democrats won races, Republicans in of the contested whereas average of districts with an 76.4% in a 55.5% vote each, won statewide share Republicans the in whereas vote earned races, a 54.1% statewide with contested with congressional districts remaining 13 each, and, aggregate. vote in the share average of the vote in an 59.5% a statewide notably, earned Democrats election, again In the 2016 Democrats vote, average 'an of of the share of 50.8% dis- congressional five won those same district, of 42.8% with a median per 50.4% tricts, average of the vote of with 75.2% vote, Republicans earned of the whereas share of and a statewide vote in each 49,2% of share of the only a statewide 45.9%, Republicans those whereas won vote.26 average of 61.8% with an districts same of share and a statewide vote election, each Democratic candi- In the 2014 54,1%.28 races, again won five dates vote; 5th of the District with 74.5% the Specifically, in candi sional Democratic vote; Congressional Congressional with of the the 1st District District won dates 63.6% vote; Congressional the 2nd of Congressional with of the 6th district 56.3% the with 84.9% vote; vote; 13th Con of the the Congressional with 90.5% District 7th District with the the vote; gressional vote; of the the District with 69.1% Congressional Dis of the 8th 62.0% the the Congressional vote; District with of 14th 76.9% Congres with of the 9th trict 61.9% the vote; Congressional District 17th with vote; and the of 10th sional District with 63.5% the the hand, Repub On other of vote. the vote; 60.3% the Congressional with of the District 71.6% Congressional in the 3rd candidates won lican Congressional of 11th with the District 66.3% vote; 4th Con of the District with the 57.2% vote; Congressional with 12th District the the vote; gressional of the District 63.4% the with vote; Congressional Dis of the 15th 59.3% the Congressional with of the 5th District 62.9% trict, uncoritested, with of which was 100% vote; Congressional District with 6th the vote; Congressional 16th District with vote; Congressional Dis 7th of the 57.1% vote; Congressional of and the 18th 57.7% the vote; Congres 8th with of the trict 59.4% uncontested, District, which was with 100% vote; the 9th with sional District 56.6% of the vote. vote; Congressional District with 61.7% Congressional District with 65.6% the 10th pre again 28.Specifically, Democrats vote; Congressional with 11th District Congressional with vailed in the 1st District vote; Congressional Dis 12th 58.5% the vote; Congressional Dis of the the 2nd 82.2% vote; Congres the 15th trict with of the 51.7% vote; Congres trict with of the the 13th 90.2% vote; of the the 16th sional District with 56.8% District, uncontested, with sional which was vote; Congressional of the with District 58.4% vote; Congressional Dis of the the 14th 100% Congressional District 18th with and the vote; 17th with of the and the trict 74.4% of the vote. 64.0% Congressional with of the District 53.8% vote. Republicans again prevailed in the remainder Specifically, Democrats won districts; Congressional dis of the in the 3rd Congressional with 1st District 82.8% trict, uncontested, which was with 100% vote; Congressional with 2nd district vote; Congressional 4th District with vote; in the Congressional 13th Dis 87.7% vote; Congressional vote; 5th of the Congres 66.1% the 14th trict with 67.1% vote; uncontested, 6th District, of the in the District with 67.2% with which was sional vote; Congressional vote; District with 67.2% the Congressional the 17th of the 100% Congressional District 59.5% Republican in the 7th of the vote. District with 56.8% vote; Congressional 8th in the District Congressional the 3rd Dis candidates won in vote; vote; Congres Congres in the 9th the 4th with 54.4% of the trict with 60.6% *26 765 short, In cycles, the last three election partisan distribution has been as fol-
lows: Republican
Year Districts Democratic Republican Democratic Seats Seats Vote Vote
Percentage Percentage 2012 18 5 13 50.8% 49.2% 55,5% 2014 5 18 13 44.5% 54,1% 2016 5 45.9% ¶ Stipulation Facts, 12/8/18, Joint at 102. other Democratic voters” with the intent to burden and disfavor Petitioners’ and
II. Petitioners’ Action
other Democratic
rights
voters’
to free ex-
pression
Petitioners
and
filed
on
Petition
this lawsuit
June
for Re-
association.
¶¶
view, 6/15/17,
in 'the
105.
Commonwealth Court.
In
Petitioners further
review,
Count
petition
alleged
I
for
Peti-
Plan had the effect of
alleged
burdening
tioners
disfavoring.
the 2011
and
Plan30 vio-
Petitioners’ and
rights
lates their
expression
to free
other Democratic
rights
and
voters’
to free ex-
I,
pression
association under Article
Sections 731
and association because the 2011
Pennsylvania
and 2032
“prevented
Constitution.
Plan
Democratic voters from
specifically,
More
alleged
electing
Petitioners
representatives
of their choice
Assembly
General
created the 2011
influencing
and from
legislative pro-
the'
Plan
“expressly
deliberately
and
suppressed
cess”
consid-
political
“the
views
er[ing]
views,
histories,
political
voting
of Democratic voters.” Id.
expression
¶
party
affiliations of Petitioners
They
107.
contended
Plan
“also
63,3%
vote;
sional
challenged,
District with
in the
30.
Petitioners
and before us con-
Congressional
10th
District with
challenge,
70.2% the
tinue to
the Plan as a whole.
vote;
Congressional
in the 11th
District with
challenges
properly
Whether
such
vote;
Congressional
of the
in the
63.7%
12th
statewide,
brought
specif-
or must be district
'
vote;
District with
61.8% the
in the 15th
ic,
Jubelirer,
open question.
is an
See Vieth v.
vote;
Congressional District with
60.6%
541 U.S.
S.Ct.
L.Ed.2d
Congressional
in the 16th
District with 55.6%
(2004). However,
objection
no such
is
vote;
Congressional
and in
18th
us,
presented to
District,
uncontested,
which was
with 100%
of the vote.
I,
Pennsylvania
31. Article
Section 7 of the
provides
part:
Constitution
in relevant
“The
29.Notably,
Congres
voters
the 6th and 7th
thoughts
opinions
free communication of
sional
Republican
Districts reelected
con
man,
rights
is one of the invaluable
gressmen
voting
simultaneously
while
for
every
may freely speak,
print
citizen
write
Secretary
Democratic nominee and former
any subject, being responsible
for the
Hillary
president.
State
Clinton for
Contrari
Const,
I,
liberty.”
§
of that
abuse
art.
7.
Pa.
wise,
Congressional
voters
the 17th
District
congressman
reelected
Democratic
while
provides:
voting
32. Article
Section 20
“The
Republican
Trump
for
citi-
nominee Donald
president.
right
peaceable
zens have a
Additionally,
manner to
several traditional
ly
together
good
Democratic counties
for their common
voted
now-Presi
assemble
Const,
I,'§
Trump.
dent
....”
Pa.
art.
Id. at
nearly impossible
overcome.”
violates the
Constitution’s
¶
indi-
against
against
retaliation
prohibition
individuals
Petitioners claimed
*27
rights
their
under”
viduals who exercise
in cracked districts under the
who live
¶
Specifically,
Id. at
108.
these articles.
essentially
2011
excluded
Plan are
the
As-
alleged that
General
Petitioners
political
have
process
and
been denied
“cracking”
congressional
of
dis-
sembly’s
any
opportunity
repre-
“realistic
elect
2011 Plan has
in their
tricts
resulted
choice,”
any
and
of their
“mean-
sentatives
representatives
“to elect
of their
inability
ingful
legislative
to influence
opportunity
political process.”
choice or
influence
¶
Finally,
119.
outcomes.” Id. at
Petition-
¶
Id. at 112.
regard to
ers claimed
individuals
II,
Plan
alleged
In
Petitioners
Count
living in
districts un-
“packed” Democratic
of
equal protection
provisions
violates
Plan,
weight
of their
has
der
votes
1,
1 and
of the Penn-
Article
Sections
diluted,”
“substantially
their
been
and
Constitution,
sylvania
and
Free and
“impact
no
on election
votes have
out-
I,
Equal Elections Clause Article
Sec-
¶ 120.
comes.” Id. at
tion 534 of the
Constitution.
Respondents’
In response
application,
specifically,
alleged
Petitioners
More
2017,
16,
Judge
on
Dan Pellegrini
October
intentionally
Plan
discriminates
granted
stay
Commonwealth
against
Democratic
Petitioners and other
pending
Court proceedings
the United
by using “redistricting to maximize
voters
v.
Supreme
States
Court’s decision Gill
Republican
Congress
seats
and en-
(U.S. argued
3,
Whitford, No. 16-1161
Oct.
Republican
trench
members in
[those]
2017).
thereafter,
However,
Petitioners
¶
power.”
116.
Id.
Petitioners further
application
an
filed with this Court
has
alleged that
Plan
an actual dis-
relief, asking that
extraordinary
exer
we
effect,
criminatory
because it “disadvan-
extraordinary jurisdiction
cise
over
tages Petitioners and other Democratic
2017,
9,
grant
matter.35 On November
we
severely
voters at the
and
polls
burdens
plenary
ed the
and
application
assumed
¶
representational rights,”
Id. at 117.
matter, but,
jurisdiction over the
while re
“computer
They
modeling
contended
taining jurisdiction, remanded the matter
and statistical
tests demonstrate
to the
Court
Commonwealth
“conduct
Democrats receive far fewer
discovery,
necessary
appropriate
all
and
they
gerry-
seats than
would absent the
mander,
Republicans’
pre-trial
proceedings
advantage
and that
and trial
so as
1,
1,
right
suffrage.”
provides:
33.
"All men
the free exercise of the
Pa.
Article Section
Const,
I,
equally
independent,
born
free and
and have
§
art.
rights,
inherent
indefeasible
certain
among
enjoying
which are those
and de-
("Notwithstanding
§
35.See
Pa.C.S.
liberty,
fending
acquiring, possess-
life and
law,
any
provision
Supreme
other
ing
protecting property
reputation,
may,
upon peti-
on
motion or
Court
its own
pursuing
happiness.”
and of
Const,
their own
Pa.
any
any
pending
party,
tion of
matter
be-
I, §
provides:
art.
Section 26
"Nei-
judge
any
fore
district
Com-
court or
any political
ther
Commonwealth nor
sub-
involving
issue of
monwealth
immediate
deny
any person
thereof shall
division
public importance,
plenary jurisdic-
assume
enjoyment
any
right,
civil
nor discriminate
any stage
tion of such matter at
thereof and
against
person
any
any
in the
civil
exercise of
right
enter
otherwise
a final order or
cause
Const,
I, §
right.”
art.
Pa.
done.”);
justice
see
to be
also
v.
Vaccone
Syken,
A.2d
provides:
34. Article
Section 5
"Elections
Pa.
(2006).
equal;
power,
shall be free and
civil or
no
military,
any
prevent
shall
time
interfere to
III.
evidentiary
Proceedings
create an
on
Peti
Commonwealth Court
record
may
Supreme
claims
be
tioners’
decided.”
proceedings
In
before the Common
Order, 11/9/17,
at 2. We ordered the
Court,
wealth
initially disposed
that court
basis,
expedited
court to do so on an
pretrial
of various
notably,
matters. Most
findings
to us
of fact
submit
and conclu
the court
discovery
Petitioners’
ruled
no
sions
law
later than December
requests,
Legislative Respondents’
ob
thereto,
Finally,
2017. Id.
jections
we directed that
mat
to gleaning
directed
legislators’
assigned
ter
intent
judge
passage
commissioned
behind
the 2011 Plan. By
opinion
order and
dated
that court.
*28
22, 2017,
November
the court concluded
Court,
The
Commonwealth
the Hon-
Speech
under the
and Debate Clause
Brobson,
orable P.
responded
Kevin
with
Pennsylvania Constitution,37
the
the
speed, thoroughness,
commendable
and ef-
court
authority
the
'to
“lack[ed]
compel
ficiency, conducting
nonjury
trial from testimony
production
or the
of documents
15,
through
December 11
submitting
and
intentions,
to
motivations,
relative
the
and
to us its
findings
recommended
of fact and
legislators
activities
state
and their staff
29, 2017,
conclusions of law on December
respect
with
to the
pas
consideration and
days prior
two
to our
Thereaf-
deadline.36
sage
Plan,
of’ the 2011
Commonwealth
ter,
expedited briefing,
we ordered
11/22/17,
and
Opinion,
Court
so
and
argument
held
on January
quashed
oral
requests 38
2018.
those
36.
ployees,
representatives
The court’s December
2017 Recom-
consultants or
Findings
mended
Fact and Conclusions of
Assembly
General
and former
principal, self-explan-
Law is broken
two
into
discoveiy request
Governor
Corbett.
was
Herein,
atory parts.
we refer to those two
establishing
made for
purpose
the
in-
the
parts
"Findings
of Fact” and "Conclusions
Legislative Respondents
tent of
to dilute the
of Law.”
historically
vote of citizens who
cast their vote
Legislative
for Democratic candidates.
Re-
Speech
provides:
37. The
and Debate Clause
spondents
request, asserting,
opppsed
Assembly
The members of the General
shall
part,
sought
relevant
that the information
was
cases,
treason,
except
in all
felony, violátion
privileged
Speech
under
and Debate
office,
surety
their oath of
and breach
Pennsyl-
Clause Article Section 15 of the
peace,
privileged
dur-
from arrest
Agreeing
Legislative
vania
with
Constitution.
ing their attendance at the sessions of their
Respondents, the Commonwealth Court de-
respective
going
Houses and in
re-
to and
discovery request, excluding any
nied the
doc-
same;
turning
any speech
from the
and for
uments that reflected communications with
they
or debate in either House
not be
shall
Assembly
members of
or “the
the General
questioned
any
place.
other
intentions, motivations, and activities of-state
Const,
II, §
Pa.
art.
legislators
respect
and their staff with
to
sought discovery
38. Petitioners
from various
passage of-
[the
consideration and
Plan],”
alia,
parties, including,
Repub-
third
inter
Opinion,
see Commonwealth Court
Committee,
lican National
Re-
National
11/22/17,
11-13,
and later denied the ad-
Committee,
publican Congressional
the Re-
produced
mission of such information
in the
Committee,
publican
Leadership
State
action.,
federal court
Foundation,
Leadership
State Government
Given the
other unrebutted evidence
Corbett, requesting
and former Governor
all
intent to dilute the vote of citizens who histor-
Plan,
pertaining
documents
all
candidates,
ically voted for
we
pertaining
Democratic
Redistricting
documents
Ma-
(REDMAP),
question
jority Project
need not resolve
of whether
our
all communications
Speech
privilege
reports
and
confers a
Debate Clause
donors that refer to or discuss
protecting
discovery
strategy
the
success,
REDMAP
this information
behind
or evaluate its
one,
case,
any training
materials on
and use at trial in a
such as this
redis-
members,
tricting presented
agents,
involving
challenge
constitutionality
em-
to the
¶
portion
a.
this
addition,
admit,
submitted
sought
Petitioners
In
seal, see
Exhibit
sought to ex-
Petitioners’
Respondents
Court under
Legislative
sealing
required
order
produced
by-
Notably,
clude,
certain materials
a “Public” and a
Speaker Mike Turzai
federal
both
to submit
House
Petitioners
Wolf, supra,
in re-
litigation
Agre v.
in order to
their brief
“Sealed” version of
case,
in that
discovery
sponse
permitted
disposition
our
140.39
discuss Exhibit
Given
expert Dr. Jowei
Petitioners’
along with
matter,
further
address
of this
we do
based
expert reports
testimony
Chen’s
evidentiary
or the court’s
these materials
(As noted, similar dis-
materials.
on those
rulings
respect
them.
case, per
covery
denied
all,
argument
oral
In
court heard
Speech
De-
Court’s
Commonwealth
in limine.40
.eight
motions
and ruled
ruling.)
materials
in-
These
bate Clause
redistricting
revealing partisan
maps
clude
Findings
A.
Fact
level,
precinct
scoring down
demon-
Commonwealth
legislators designing
strating that
some
of testimony,
Prior
introduction
to the
upon
partisan
such
the 2011 Plan relied
stipulated to
parties
Interveners
Ultimately,
per-
court
considerations.
*29
faets,
of which
background
much
certain
these
testimony
Dr.
about
mitted
Chen’s
above,
the intro-
and to
have
we
discussed
materials,
the materi-
but
admit
refused
of deposition
themselves,
portions
of
any
certain
find-
duction
als
refused
make
testimony as exhibits.41
them,
prior
trial
Findings
see
Fact at
ings about
and/or
However,
included:
The other
against
we
40.
caution
a statute.
motions
rul
on
Commonwealth Court’s
reliance
(1)
or
motion to exclude
limit
Petitioners’
interpreted
ing.
never
our
has
This Court
testimony,
including
Intervenors' witness
any
Speech
providing,
as
Clause
Debate.
testimony
existing
con-
precluding the
an
suit,
thing
immunity
in cer
more' than
from
candidate, limiting
gressional
the number
circumstances,
members of
for individual
tain
testify
Republi-
of witnesses who could
See,
Sweeney
Assembly.
e.g.,
v.
General
the
Tucker,
one,
limiting
Party
Chairs to
can
493,
(1977).
largely Plan, really focusing have candidate he evaluated the Democratic “doesn’t that Marx, (1) Lawn testified specific questions: Id. Like whether a chance.” on three represent congressman does that her factor predominant partisan intent issues, she many and that on Plan; (2) so, her views if drawing of what in the his office unsa exchanges with found her number effect the Plan was the at 140-44. tisfying. Id. Republi- Democrats (3) Pennsylvania; Rentschler, cans elected a resident Finally, Thomas ability of the is of the Plan on the he the effect Township, of Exeter testified 12/12/17, Trial, to elect a Demo- registered Democrat. N.T. individual Petitioners lives he congress at 669. Rentschler testified Republican candidate crat Reading, City from the Trial, two miles respective N.T. from their districts. “community of interest” clear he has a 12/11/17,at 165. city. 682. Under the Id. at plan, Dr. In to evaluate the order Plan, however, Reading is in the"16thCon computer that he used Chen testified is in District, Rentschler gressional sets, each with 500 algorithm create two District, Congressional the 6th redistricting plans, computer-simulated Ryan Costel by Congressman represented Pennsylvania’s congressional dis- plans 670-71, lo, at 677. Republican. Id. algorithm computer tricts. Id. 170. The he voted while Rentschler testified the first set simulated used create last for the Democratic candidate (“Simulation 1”) tradi- utilized elections, plans Set contests all three three state criteria, Pennsylvania districting tional Id. Republican candidate. were won view, equality; contiguity; 2011 Plan specifically: population In Rentschler’s 673. chance unfairly splits [his] “has eliminated within mu- compactness; absence actually a Demo elect getting vote and necessary; and absence nicipalities, unless shape and the just cratic candidate counties, necessary. splits within unless Id. at design of the district.” algorithm computer at 167. The used Id. plans create the second set simulated Testimony Expert (“Simulation 2”) utilized the aforemen- Set testimony presented Petitioners criteria, incorporated the tioned but addi- *31 witnesses, Legislative expert four protecting of 17 incum- tional criteria this testimo- Respondents sought to rebut bents,45 which, Chen, according Dr. is experts of their own. We ny through two Id. districting “traditional criterion.” a seriatim n . testimony address purpose 206. Dr. testified that the Chen Dr. Jowei Chen protection to the cri- adding incumbent of computer-sim- of teria for the second set testimony of presented Petitioners whether “a plans ulated determine Chen, areas of expert Dr. Jowei an Assembly hypothetical goal General who redistricting political geography nonpartisan in a University protecting of incumbents positions at the holds research explain or account might manner somehow University, and Wil- Michigan, of Stanford 19 incum- Dr. Chen noted that there were experts presented to Com- 45. 44. None of the congressional 2012 bents in the November objected were based monwealth Court discussed, elections, that, but as expert in their upon qualifications as an following congressional one district lost respective fields. 12/11/17, Trial, N.T. at 207-08. 2010 census. of partisan plans for the extreme bias” the 2011 the sorts of that would have arisen Plan. Id. under districting process following a tradi- districting tional principles Pennsylva- 1, regard With Simulation Set set nia.” Id. at 181. computer-simulated plans utilizing only of criteria, districting traditional Chen Dr. In terms of geographic compactness, Dr. plans, specifically, noted that one of those Chen explained compared that he Simulat- Figure Example “Chen 1: of Simulated 1 to ed Plan the 2011 utilizing Plan two Districting Plan from Simulation Set separate widely-accepted standards. (Adhering to Districting Traditional Crite- First, Dr. Chen calculated the Reock Com- (hereinafter ria)” 1”), Plan “Simulated Score, pactness of partic- which is a ratio which was introduced as Petitioners’ Ex- ular district’s to the of area area the small- hibit results in only being counties est bounding circle that can be drawn to districts, into split multiple congressional completely higher contain the district —the compared to as the 28 counties that are score, the more compact the district. multiple into split districts under the 2011 range Id. at Compact- 175. The Reock Indeed, referring Plan. Id. at 173-74. congressional ness Scores for the districts Figure chart 3: titled “Chen Simulation in Simulated Set 1 was .38 to about “about Following Only 1: 500 Plans Set Simulated .46,” id. at Plan 1 and Simulated had (No Districting Traditional Criteria Con- average Reock Compactness Score Protection),” sideration Incumbent .442, range of compared to the 2011 which was Ex- introduced Petitioners’ .278, that, revealing Plan’s score accord- explained hibit Dr. Chen that the maxi- Chen, ing to signifi- Dr. the 2011 Plan “is split any mum number counties cantly compact” less than Simulated Plan 16, and, plans is 500 Simulation Set 1. Id. at 175. instances, is as few as 11. Id. at several majority 179. The vast the Simulation Dr. Popper- Chen also calculated plans split 12 to 14 have counties. Id. Set Polsby Compactness plans. Score of both Popper-Polsby Compactness The Score respect munici- splits With between measuring calculated first each dis- Dr. palities, Chen observed under the perimeter comparing trict’s it to the Plan, splits, there are 68 whereas of hypothetical area circle with that same range splits under the Simulation Set perimeter. The particular ratio dis- 180; is 40 to plans 58. Id. at Petitioners’ trict’s hypothetical area the area Exhibit 4. contained in Based the data Popper-Polsby Compactness circle is its Petitioners’ Exhibit Dr. Chen noted that score, higher greater Score—the “splits significantly the 2011 Plan more geographic compactness. Id. at 176-77. municipalities than would have resulted range Popper-Polsby Compactness following from the teadi- plans simulated criteria, Scores districts districting split tional also [it] *32 1 Trial, plans up was “about .29 Simulated Set significantly more counties.” N.T. .35,” 1 at and Plan 12/11/17, about id. Simulated at 180. He concluded that average Popper-Polsby an of -had Score 2011 evidence demonstrates that the Plan .310, compared to the 2011 Plan’s score as “significantly the traditional subordinated .164, again of Dr. Chen to districting leading conclude avoiding county splits criteria of avoiding map significantly us that far municipal splits. and It shows “the enacted than split geographically compact” that the far more coun- less Simulat- [2011 Plan] ties, municipalities, as as than 1. Id. at well more ed Plan 177.
772 a, districting crite- Pop- traditional
Utilizing showing dinate[s] the mean chart avoiding per-Polsby Compactness avoiding county splits Score- and the of ria for of Compactness Reock Score each municipal splits mean subordination com- 500 1 as plans, of the Set Simulation justified not those criteria was somehow Plan, see pared the 2011 Petitioners’ by an explained or warranted effort or (“Chen Figure 5 4: Exhibit Simulation Set nonparti- in an protect 17 incumbents Only Following 500 Plans 1: Simulated -layman’s put To that san manner. (No Con- Districting Traditional Criteria terms, to protect effort incumbents Protection)”), of Dr. sideration Incumbent as justified up would splitting not have opined matter Chen “no which meas- municipali- many many and as counties use, very compactness you of it’s clear ure split up, we [2011 ties as saw significantly and com- that the [2011 Plan] Plan]. pletely district- sacrifice[s] traditional at 217. Id. ing compactness geographic principle of compared plans of that would sorts compactness, respect geographic With districting emerged have under traditional Plan explained Chen Dr. Simulated 12/11/17, Trial, principles.” at 184. N.T. average Compactness 1A had an Reock .396, next 500 2011
Dr. Chen Sim- compared addressed the of as Score Plans, which, above, 2 .278, ulation Set noted as Plan Plan’s score and Simulated protect- additional criteria included the Popper-Polsby Compactness 1A had a Dr. stated ing 17 Chen incumbents. .273, compared to the 2011 Score as criteria, establishing the additional 214; Id. Petitioners’ Plan’s score of .164. at given to the no was identities consideration on an Exhibit Based illustration 7. or the incumbents. Id. party affiliations Popper-Polsby Compactness mean Score plans, Simulation Set 2 One the mean Reock Score Compactness of a Figure Example 1A: Simulated “Chen plans, 500 Set 2 each Simulation Set Districting Plan Simulation Plan, compared to the 2011 see Petition- Districting Crite- (Adhering Traditional (“Chen Figure ers’ Exhibit 9 7: Simulation Incumbents)” (here- Protecting And ria 2: 500 Plans Tra- Following Set Simulated l'A”), Plan which was inafter "“Simulated ditio'nal'Districting Protecting Criteria Exhibit re- Petitioners’ introduced’ Incumbents”), Dr. Chen concluded that only being split into 15 counties sulted “significantly 2011 Plan subordinated' n districts, as com- multiple districting geo- criteria traditional [the] split into 28 counties pared to graphic compactness that subordina- the 2011 Plan. multiple under Id. districts compactness tion of geographic districts Exhibit Referring to Petitioners’ justified or necessitated somehow 6: Figure- Simulation Set 2: “Chen titled explained by hypothetical effort to Following Plans Traditional 500 Simulated Trial, N.T. protect 17 incumbents.” Protecting In- Districting Criteria 12/11/17,at 220. further observed that Dr. Chen cumbents/’ (68) regarding Dr. Chen also testified split municipalities more the 2011 Plan of the Plan. plans, partisan Dr. any Set breakdown than Simulated range of splits explained requested in a between he and ob- Chen which resulted data, Dr. Department on this Chen 50 and 66. Based State the tained from voting pre- each opined: actual election data six 2008 Pennsylvania for the cinct to conclude from [Petitioners’ We’re able n elections. Id. at 185-86. Plan] that the subor- statewide [2011 *33 8] Exhibit
773 candidates, Those included elections the elections bent none of plans the 500 President, General, Attorney Auditor a Republican resulted District/Demo- General, and State Treasurer in and cratic District ratio of more than 10 to 8. Id, States election and 221-22; United Senate at 10. Petitioners’ .Exhibit gubernatorial state Id. election 2010. comparison on a Based of the Plan 187. The election data obtained Dr. redistricting plans, simulated Dr. .his many Chen indicated how votes cast “partisan were Chen determined pre- intent party for each By candidate. Id. at 189. drawing of the dominated Plan] [2011 overlaying precinct-level election re- ... and the was drawn with a [2011 Plan] top geographic sults on boundaries partisan intent to 13-5 Republican create a particular map, as shown on a he was able advantage this partisan intent particular determine whether district districting princi- subordinated traditional Republican had more or Democratic votes ples drawing plan.” of the enacted during the elections. Id. at 196-97. Those Id. Republican districts that more had votes consider, was Dr. Chen asked whether would, naturally, be Republi- classified as partisan breakdown of Plan can. might be the of a “hypothetical result ef- that, Dr. the 2011 under Chen.observed fort produce a certain racial threshold of Plan, congressional 13 of the 18 districts having percent one district over 56.8 as Republican. classified Id. at 198. population.” voting-age African-American However, when Dr. pre- Chen overlaid 245,46 question, Id. at To Dr. answer election cinct-level results Simulated analyzed explained .Chen that he the 259 1, only Plan 9 of the congressional computer-simulated plans from Simulation Republican. districts would be classified congressional Sets 1 2 that included Indeed, Id. at 197. in the 500 Simulation voting district with an African-American plans, highest Set number classi- voting age population of at least 56.8%. Dr. Republican fied districts was that, testified of those Chen 259 simulated none of plans 13 of simulated would plans, Republican-Dem- in a none resulted congressional districts be classified as ocrat ratio of to 5. district Republican. data, Id. at 200. on this Based 244-45, Indeed, Id. at the Simulat- Dr. Chen “I’m stated able to conclude with plans, which not take into Set did ed percent 99.9 certainty well-over statistical incumbents, protection account the max- that the of a 13-5 [2011 Plan’s] creation imum was 9 to Simulat- ratio Republican advantage Pennsylvania’s incum- plans, protect ed Set which did Congressional delegation is outcome 8, and, bents, the ratio 11 to maximum emerged would never have from a case, Id.; in one low 8 to 11. was as districting process adhering to and follow- (“Chen 10”). Figure Petitioners’ Exhibit Í5 ing districting principles.” traditional Id. at Republican Dr. Chen “the 13-5 concluded 203-04. advantage of map is an out- the enacted Moreover, plausible, Dr. come that is not if one is Chen testified even even only plans, plans under the Set 2 interested in that create one Simulation percent took into account district with over 56.8 African- preservation incum- Plan, only congression voting- Philadelphia; 46. Under the 2011 the African-American voting- al district with age an African-American population is for that district N.T. 56.8%. 9 . age population Trial, 12/11/17, of more 2nd than 50% the at 23 District, Congressional which includes areas *34 774 mar- probably more comfortable Tri- win voting-age N.T. population.”
American for it “much harder al, 12/11/17, gins,” which makes at 245. to be that scenario able under Democrats asked whether the Dr. also was Chen So, effect, in district. to win the median in 2011 advantage Republican 13-5 for is it’s much harder what that means by political geog- be explained Plan could majority a able win Democrats be is, patterns of geographic raphy —that delegation.” Id. at Congressional of the behavior. Id. at 251. Dr. Chen political can cre- explained political geography that advantages party one over ate natural “Republicans recognized that Dr. Chen that, another; in he observed example, geographic natural enjoy a small clearly Florida, often “far voters Democratic are in because advantage ar- in urban geographically clustered more voters are clustered way that Democratic eas,” much Republicans “are whereas are a bit more Republican voters in spaced out rural geographically more geographies of out across different spread state, Republi- in a resulting parts” of the 255, However, Dr. Pennsylvania.” Id. at advantage in control over districts can range Chen observed that mean/me- Id. at 252-53. in legislature. seats the state any in gaps created the Simulated dian Pennsylva- considering impact In 0 1 “a little over plans was between Set Plan, the 2011 political geography on nia’s majority being of them percent vast explained that he measured Dr. Chen a maximum of 4 percent,” with under by utilizing partisan bias Plan 262-63; percent. Id. at Exhibit Petitioners’ referred a common scientific measurement 5”). (“Chen explained Figure Dr. Chen Id. at 257. To gap. to as the mean-median range,” a “normal a that this is mean, aver- one at the calculate looks very statistically gap 6% “is a extreme particular a age per party share vote explained by voter outcome cannot median, one district. Id. To calculate the districting traditional geography from the lowest up” the “line[s] districts Trial, 12/11/17, at alone.” N.T. principles share; best highest “middle vote range Dr. Chen noted that 263-64. is the median. Id. at 258. The district” by any of gaps created mean/median either is the district that median district ap- not plans also did Simulated Set elec- to win the party has win order 6%, and, thus, that the 2011 Plan’s proach that, tion. Id. Dr. Chen testified under not of voters is partisan “extreme skew Plan, Republican Party has a emerges naturally outcome 47.5%, a median mean vote share geography combined Pennsylvania’s voter 261; Id. at Petitioners’ of 53.4%. vote share districting principles and traditional with a mean- Exhibit This results protect an effort to 17 incumbents 5.9%, which, according to gap median a plausible It’s not nonpartisan manner. Chen, that, under the Dr. indicates Id. given outcome those conditions.” out Plan, spread “Republican votes ... (“Chen 266; Figure Petitioners’ Exhibit 17 so as to advantageous manner very 9”). the Re- way that would allow allow—in sum, “statistically con- In Dr. Chen easily that median publicans to more win extremely certainty high ... 12/11/17, Trial, clude[d] at 259. district.” N.T. geographic certainly, there is a small gap result is converse of this mean-median Republicans, but does advantage for the very packed voters “are Democratic districts, explaining the extreme they come close minority into Republican 13-5 als’ advantage impact the [2011 over a broader area. Id. Final- *35 Trial, 12/11/17, N.T. ly, Plan].” at 255-56. Dr. Kennedy “highjacking” defined combining of two dis- Ultimately, the Commonwealth Court tricts, both of which majority have the credible; Dr. testimony spe- found Chen’s support of one party not drawing one cifically, court —the that Dr. held Chen’s the map thereby forcing two incumbents testimony — “established the General against to run one in primary another Assembly included non- factors other than election, automatically eliminating one partisan districting traditional criteria in of them. Id. at 634. creating the 2011 Plan in order to increase of Republican-leaning number congres- specifically asked When about the 2011 voting sional Findings districts.” Fact at Plan, Kennedy Dr. opined that the 2011 ¶ noted, however, 309. The court that Dr. “negatively impacts Plan Pennsylvania’s testimony Chen’s “failed to take into ac- communities of unprecedent interest to an count the communities of interest when degree and ed contains more anomalies creating districting plans,” and “failed than ever before.” Id. at 579. For example, account the fact that courts have held Kennedy Dr. noted that County, Erie in a legislature engage may some District, Congressional the 3rd split is un partisan level of creating intent when re- der the Plan for “no apparent non ¶¶ 310, districting plans.” Id. at 311. reason,” it partisan previ when had never Kennedy ously split. been Id. at According Dr. John 591. Kennedy, County Dr. Erie is a historically presented Petitioners next testimony and, county, in splitting Democratic of Dr. Kennedy, expert John in the area county, it, legislature “cracked” dilut science, political specializing polit- in the impact ing by pushing its eastern parts history ical geography political county into of the the rural and over Pennsylvania, professor is politi- who a whelmingly Republican Congressional 5th cal science at University. West Chester 597; Id. District. at see Petitioners’ Exhibit Kennedy Dr. testified analyzed he 2011 Plan “to see how it treated communi- interest, ties Kennedy whether there were anom- Dr. next the 7th addressed District, present, alies whether strangely Congressional there are he noted districts, designed certainly systemwide, are become famous whether there “has things sense, just nationally, gerry don’t make if not whether as one most tentacles, there are isth- country,” whether there are in the mandered districts earn muses, ing whether there peculiari- Goofy kicking are other the nickname “the Don Trial, 12/12/17, Trial, 12/11/17, ties.” N.T. at 580. Dr. Ken- district.” N.T. at 598- ald nedy explained 99; also concepts According see Joint Exhibit 12. several used Dr. gerrymandered Kennedy, to create a For plan. Congressional ex- the 7th District ample, he “cracking” historically described that is based southern Dela particular Plan, which a party’s sup- County; method the 2011 it be ware under porters separated they are north into gins County, divided so Delaware moves cannot form larger, political Montgomery County, cohesive then west into Ches voice. Id. at 586. Conversely, “packing” County, finally, is a into ter both north process by which groups County who Berks into individual and south Lancaster reside placed County. point, along different communities At one Route together on partisan contiguous only by based perform- district virtue ance, Trial, 12/11/17, in an effort to lessen those individu- facility, medical N.T. ger- Plan was an unconstitutional
600-01; King of Prus point, at another rymander opinion sia, by single steak as an ultimate connected remains Findings of Id. at 604. Dr. case. question of and seafood restaurant. law. ¶¶ the 7th Kennedy observed that further Fact at 339-41. split, Congressional District contains 26 Pegden Wesley Dr. Id, municipalities. presented testimony next Petitioners Congres the 1st Kennedy Dr. offered expert Wesley Pegden, in the an' Dr. example of a district District as an sional *36 probability, pro- and area mathematical 605; see at been Id. packed.
which has Carne- fessor mathematical sciences He that 70. described Petitioners’ Exhibit Pegden Dr. gie University. testified Mellon in begins District Congressional 1st the the 2011 Plan to deter- that he evaluated overwhelmingly Philadelphia, an Northeast respect it outlier with mine whether “is an district, largely tracks and Democratic and, so, if that if could be partisan bias River, occasionally reaches Delaware but political interaction explained com incorporate out to other Democratic districting crite- geography traditional munities, Ches parts as of the such city Trial, 12/13/17, Pennsylvania.” N.T. ria N.T. town of Swarth'more. ter Plan, 2011 Dr. evaluating In at 716-17. Trial, 12/11/17, 605-08. computer algorithm Pegden a that utilized ,the 4th Con Kennedy also Dr. discussed case, plan this starts with a base —in District, gressional in Petition as shown then a series of 2011 makes Plan —and 75, observing that ers’ Exhibit the. district plan. changes to the Dr. small random very Republican “a historically is district.” Pegden incorporate able various moving tip In the northernmost Id. at 631. maintaining contig- as parameters, such Harrisburg, City of which is pre ‘ districts, maintaining popula- equal uous dominantly city, to the 4th a Democratic tion, maintaining compactness. Id. at from the it Congressional District district Pegden Dr. noted whether 726. then Pennsylva previously with central shared changes series small resulted a de- area, Harrisburg metro nia and the which bias, partisan as measured crease community of inter part of the same Id. at 722-23. mean/median. est, has diluted the Plan Demo Harrisburg. Id. cratic voté at 631-32.47 algorithm made .approximately The trillion random computer-generated sum, Kennedy In Dr. that the concluded Plan, and, of re- changes to the “gives precedence political Plan sulting Pegden Dr. plans, determined over of com- considerations considerations partisan had’less bias 99.999999% them disadvantages of interest and munities 749; Id. at Petitioners’ than the 2011 Plan. voters, compared to Repub- Democratic data, Dr. Exhibit at Based gerrymandered is a lican This voters. Pegden Assembly the General The concluded map.” Id. at Commonwealth 2011 Plan] to “carefully crafted ensure Kennedy’s testimony [the Dr. found advantage.” Ex- However, Petitioners’ Republican credible. it concluded Dr. Kennedy hibit at 1. He further testified “did not be- address intent Plan,” “was outlier specifically the 2011 indeed extreme hind Plan Kennedy’s way bias opinion respect partisan Dr. “disregarded” Kennedy's testimony herein. was not limited to districts 47. Dr. discussed' specific congressional discussion the four n explained by not be vantaged could the interaction party overwhelmingly, wins of political geography districting again, and the wasting large number of votes. Id. Trial, criteria” that he considered. N.T. at 839-40. To efficiency gap, calculate the 12/13/17,at 717. Dr. Warshaw par- calculates ratio of a ty’s wasted?votes over the total number of Pegden’s The Court found Dr. testimony election, votes cast and subtracts credible; however, to be it noted like one party’s ratio ratio testimony, Dr. testimony Chen’s his did number, other party. larger into districting take account “other greater the partisan purposes bias. For considerations, splitting such as not munic- Plan, evaluating Dr. Warshaw ipalities, interest, communities of some explained gap that an efficiency negar of a permissible protection level incumbent percentage represents five a Republican partisan Findings intent.” of Fact at advantage, positive percentage rep- ¶¶ Further, 360-61. Kennedy, with Dr. resents a ¡advantage. Democratic Id. at “disregarded” the Commonwealth Court (The party’s decision of gap' Dr. Pegden’s opinion that the 2011 Plan negative *37 positive deemed versus gerrymander was an unconstitutional —the as an ,-at 854.) arbitrary. polarity scale’s Id. ¶ opinion question on a of law. Id. at 363. —is He up approach the summed as follows: Christopher Dr. Warshaw efficiency gap just way The is a of.trans- presented testimony Petitioners next the lating gerryman- this-intuition what that Warshaw, Dr. Christopher expert of an in dering ultimately is is efficiently about of the field politics specifically, American — translating by wasting votes into seats political representation, public opinion, many your opponent’s of supporters elections, polarization professor and —and possible possible and as few- as —as political of George Washington science at possible your of really just own. So-it’s a University. Dr. that he Warshaw testified captures formula this intuition that was asked to degree evaluate the of parti- that’s what gerrymandering is at its Plan, in san bias the 2011 to place any core. such into perspective.” bias “historical Id. at 840. Trial, 12/13/17, N.T. at 836. that, Dr. testified historically, Warshaw Dr. suggested degree Warshaw that the in states with moré than six partisan of redistricting plan bias in a can districts, efficiency gap is to 0%. close through “efficiency be measured gap,” An efficiency gap of .0% parti- indicates no is a formula that measures the num- advantage. san Id. at explained 864. He for party against ber “wasted” votes one time, 75% the efficiency gap number “wasted” for votes another negative 10%, and, between 10% and less losing party, Id. at 840-41. For a party. all time, than 4% the the efficiency gap is party’s votes are wasted deemed range outside of '20% negative winning votes. For a party, all votes over (cid:127) 20%. Id 865. election, the 50% plus needed win the one, are prac- deemed votes. The In analyzing efficiency wasted gap in Penn- cracking packing sylvania tices can be 2016, used -years Í972 through to create wasted votes. Id. at 839. Dr. that, He during Warshaw discovered explained district, 1970s, in a cracked very there was “a Demo- modest” disadvantaged party narrowly, loses advantage, wast- cratic efficiency but that ing large a number gap relatively 870; votes without win- close zero. Id. at was. ning seat; district, in packed a a the disad- see 40. Exhibit In the 1980s Petitioner’s in only put no the districts were 90s, efficiency gap due to indicated regard party. Id. at 879. With advantage place.” either Id.
partisan “very gap Beginning change efficiency there was a mod- in between the advantage,” elections, effi- est but the Dr. Republican Warshaw ciency gaps very never far possible change in opined “were that “there’s no However, 2012, the zero.” Id. at political geography 870-71. that would lead to such nega- efficiency gap in Id. Dr. Warshaw further dramatic shift.” 24%, indicating that had “Republicans tive efficiency gaps “the concluded that advantage in the 24-percentage-point immediately occured after 2011 Redis- Id. at In districting process.” tricting place are extreme- Plans went into “Republicans large continued have unlikely ly persistent,” and districting with advantage process pro- the “normal electoral remedied and, negative Repub- percent,” cess.” Id. at 890-91. very large licans “continued have testimony regarding In to his addition gap an advantage efficiency robust” efficiency gap, Dr. Warshaw discussed negative 19%.Id. which he concept polarization, de- that, prior Dr. confirmed Warshaw voting patterns fined as the difference Plan, Pennsylvania an
the 2011 had never Republicans in between Democrats and of 15% in efficiency gap favor of either Congress, impact id. at and the party, only once had there been partisan gerrymandering on citizens’ faith efficiency gap even 10%. Id. government. Id. at 953.48 Thus, Dr. concluded that the ef- Warshaw ficiency occurred gaps that after Dr. Commonwealth found *38 prior Plan to the were “extreme” relative credible, testimony par- to be Warshaw’s Indeed, Id. he noted plans Pennsylvania. in ticularly to of an respect the existence with in in efficiency gap Pennsylvania that the Pennsylvania. in efficiency gap Neverthe- largest country in the was the less, opined meaning the court that the full year, largest that effi- and was second gap “requires spec- and effect of the some ciency gap history in modern “since one- take ulation does into account and person, went into in 1972.” one-vote effect considerations, qual- some relevant such efficiency gap Id. at of an impact 874. The candidates, ity incumbency advantage, of 24%, to according between 15% Dr. and Findings at and turnout.” of Fact voter Warshaw, “implies Republicans that won ¶ con- expressed court additional four average Congres- to three extra gap efficiency cerns that “devalues timespan.” sional over year seats each this elections,” in that competitive in a even Id. at 873. parties equal district in which both have an prevailing, chance of a close contest will geog- When asked consider whether efficiency gap result substantial a raphy large may contributed to the have ¶ party. prevailing favor Id. at 390. Pennsylvania, Dr. efficiency gap War- stated, Finally, the court concluded that Dr. War- very shaw “it’s that some unlikely of the comparison efficiency gap shaw’s change political geography or oth- some other states was of limit- aspect voting er behavior have would value, change. likely driven this This ed as it take into change was failed consider- Opinion. explanation aspect of his A detailed testimony unnecessary purposes of this alia, ation whether there were state differences inter that the basis it had not been for drawing validated, methods limitations academically 1170-73; id. at ¶ congressional districts. Id. at 89-90 391.49 many or all plans alternative failed all legally applicable include Wendy tra- Dr. K. Tam Cho and/or redistricting ditional principles “as [she] response In testimony offered them,” 1176; id. at understand^] Petitioners, Legislative Respondents pre- algorithm generated too small a sam- testimony experts, sented their own ple plans size alternative to'establish K, Cho, beginning Ph.D., Wendy Tam probabilistic outcomes. Id. at 1181-85. professor Illinois, University who expert was certified as an in the areas that, Dr. upon Gho testified based her political science with a focus on political Pegden’s, published work, review of Dr. geography, redistricting, American elec- she his methodology believed too was tions, research, statistics, operations prob- flawed, in that incorporate, it failed ordi- ability, high-performance computing; nary redistricting avoiding criteria such as she was Dr. called to rebut Chen’s and Dr. municipal splits protecting incum- n Pegden’s testimony. Trial, 12/14/17, N.T. bents. Id. at 1219. opined upon 1132. Dr. Cho based her however, Notably, Dr. Cho conceded review of one of Dr. prior papers, Chen’s actually she did not review either Dr. believed that methodology she his was a Pegden’s algorithms Chen’s or Dr. attempt flawed at a Monte sim- Carlo codes, 1141, 1296, id. at ie., both Dr. attempt flawed use ran- ulation — Pegden Dr. Chen on rebuttal sampling probability dom testified establish the bulk of Dr. assumptions Cho’s Specifically, outcomes. Cho Dr. ex- regarding thus, their methodology and, plained methodology that Dr. Chen’s — derivatively, because, her criticisms although flawed his thereof —were algorithm 1368-95; Trial, erroneous. Id. at randomly initial N.T. voting selected an district 12/15/17, at Ultimately, 1650-75. compile redistricting plan, which to the Com- monwealth Court Dr. subsequently found Cho’s testimo- followed determined it, ny regard actually compiling thereby course in incredible “with to her criticisms undermining ability algorithms its proba- establish used Dr. Chen and *39 Pegden, bilistic Id. at Dr. regard outcomes. 1137-38. Dr. Cho credible with but on, algorithm also criticized Dr. Chen’s Pegden’s algor- her observation that Dr. (REDMAP letter); Following presentation fundraising of Dr. War- and Petition Maximized”). testimony, per requested (“Map-CD18 shaw’s Petitioners ers' Exhibit 140. above, mission to admit into the doc As record'Several noted the Commonwealth Court uments, including: Respondents’ objections Petitioners’ Exhibit 124 sustained to the ad (Declaration Goede, documents, Republican of Stacie mission these but admitted Conference); Leadership purpose State Petitioners’ them under seal "for the sole of ... (Redistricting Preparing allowing Exhibit Supreme my 2010 Court revisit Success); (RSLC evidentiary for ruling Petitioners’ Exhibit 127 if it so chooses.” N.T. Tri al, 12/13/17, 1061; Redistricting Majority Project Announces see id. at 1070. Peti at (REDMAP); (REDistricting Petitioners’ Exhibit 128 tioners also for the of Ex moved admission 28, 27, 29, 30, 31, Majo rity Project); Exhib Petitioners’ hibits and 33. The court (REDMAP 27, 29, 30, Report: July it 129 Political admit Exhibits refused to and 2010); (REDMAP previously Petitioners’ Exhibit 131 that it reiterated had and Summaiy Report); on Petitioners’ Exhibit 33 and held it was not ad ruled Exhibit (REDMAP Report: Political Final Re missible. Id. at 1077. The also refused court 135, 136, 137, (2012 port); Petitioners' Exhibit 133 RSLC to admit Exhibits Review); Year Petitioners' Exhibit 134 and 141-161. Id. at 1083. incumbency, spending, national quality, splits municipal to avoid ithm failed Id. tides, electorate. and trends permissible incumben- within did not account ¶ Fact at 398. Findings of cy protection.” at 1447-48. Nevertheless, Dr..Cho’s court found meth- McCarty Dr. Chen’s Dr. criticized ,did weight
testimony lessen- the not partisan calculating performance Of od Dr, adher- Chen’s either conclusion district, imperfect is an opining of a re- he as traditional ence what viewed vote of how a district will predictor districting. explain criteria could not Id, congressional elections. at .1458-76. Dr, bias, Pegden’s partisan Plan’s However, Dr. Dr. McCar- Chen addressed Plan a statisti- the 2011 conclusion that 1675-701, rebuttal, criticisms id. at' ty’s on compared maps near- cal outlier Findings Ofthe Court." “to satisfaction population equality, contiguity, ly identical- ¶ at Fact county splits. and number of compactness, ¶¶ Id. 399-400. The court concluded also at Dr. McCarty, also War- Dr. criticized meaningful guid- Cho no that Dr. offered the-efficiency gap as an on shaw’s reliance appropriate to an test for deter- ance contending of gerrymandering, indicator mining the existence of an unconstitutional (1) efficiency not take gap that the does Id, ¶ partisan gerrymander. at 401. that re- partisan bias into consideration McCarty Dr. Nolan (2) sorting; naturally geographic sults testimo- gap have Respondents presented efficiency also proponents in the ny expert an McCarty, developed principled ways Dr. of determin- Nolan redistricting, quantitative election efficiency large area ing gap is too when representation analysis, political (3) sorting; and justified by geographic behavior, behavior, voting legislative on can have an effect close elections public affairs politics professor Trial, efficiency gaps. N.T. calculation McCarty University. Dr. at Princeton 12/15/17, 1484; Legislative Re- at see also reports of expert comment asked He further spondents’ Exhibit at 18-20. McCarty and Dr. Dr. Dr. Chen Warshaw. . components to suggested many there are analyzed whether explained that he parti- not related wasted votes partisan bias Plan resulted 12/15/17, Trial, districting. N.T. san index voting calculating partisan Dr, Finally, McCarty criticized 1483-84. (“PVI”). congressional district. N.T. of each testimony regarding Dr. Warshaw’s Trial, 12/15/17, is calcu- 1421. The PVI polariza- gerrymandering has on the effect voting presidential re- taking lated political at 1477-82. parties. tion of Id. district turns in a Dr. found The Commonwealth elections, subtracting the na- two previous McCarty’s testimony not with re- credible political party, of each performance tional report; to his of Dr. Chen’s criticism gard - average over calculating the then *40 indeed, “the that court concluded PVI, Utilizing Id. elections. those two by Dr. to cal- methodology employed Chen that there no McCarty opined Dr. partisan performance appears culate advantage to the a partisan evidence of election predictor have been a rehable Plan. the 2011 Id. Republican Party under Pennsylvania since outcomes enact- suggested un- 1489-90. He further at Findings of of the 2011 Plan.” Fact ment Party Plan, the Democratic der the ¶409. Moreover, at the Commonwealth of the 18 won 8 should have “Dr. methodol- Court that observed Chen’s seats, so was the and that its failure do for 54 factors, predictions in accurate ogy candidate resulted including of other result 54 congressional out of elections under the san considerations results unconstitu- n n 2011 Plan.” Id. ¶ Id. at 413. gerrymandering. tional regard With to Dr. expert Warshaw’s B. Conclusions of Law report, the Commonwealth Court likewise Commonwealth Court that Dr. McCarty’s determined criticisms (1) were not credible the extent he setting fact, forth its findings After disagreed that gerrymandering not does the Commonwealth offered recom problems polar- exacerbate with associated mended conclusions Preliminarily, law. ization, (2). suggested cracking the court explained that Con the.federal packing may actually benefit voters. requires stitution that seats the Ünited ¶at Id. 410. The rejected court further as States of Representatives House be reap McCarty’s incredible criticism of Dr. Dr.. portioned decennially among the states ac on efficiency gap, Warshaw’s reliance cording populations to their as determined noting that “Dr. Warshaw accounted census, in the and commits post-reappor geographic some sorting analysis in his redistricting tionment to the states’ legis efficiency gap dispute not and did latures, to federal law. Conclusions subject impact close elections can the calculation ¶¶ Law at 1-2 (quoting the federal of an efficiency' gap.” Id. Although Clause). Elections court reasoned McCarty’s court credited Dr. testimony that, in Pennsylvania, although the Gener that proponents efficiency gap have al Assembly in performing post-reappor not developed principled methods deter- redistricting subject tionment is federal mining efficiency gap large an so when is (cid:127) e.g., requirement restrictions— necessarily partisan gerry- evidences districts as equal be in population pos as mandering, and that wasted votes are not the requirements sible and Voting always partisan the result of districting, Rights Act of 1965—it largely is free the Commonwealth Court concluded restrictions, state subject as its task is (1) McCarty’s testimony Dr. did not lessen statutory explicit, specific, or constitutional given “the weight testimony to Dr. Chen’s req The Commonwealth that the 2011 Plan an re- is outlier with uirements.50 that, although party’s Court intimated (2) spect advantage,” to its partisan legislative that a redistricting plan claim is weight 'given “the to Dr. testi- Warshaw’s on ground unconstitutional that it is a mony efficiency that an gap exists in Penn- . ¶¶ gerrymander Id. sylvania.” partisan justiciable is 411-12. also under The court ¶ law, id. McCarty concluded no federal state 10 (citing that Dr. offered guidance Bandemer, de- Davis v. 124-27, test 478 U.S. appropriate legislature’s termining (1986);51 parti- when use S.Ct. 92 L.Ed.2d .85 restrictions, 50. The court Assem-- contrasted General own state see Conclusions Law Const, ¶ bly’s regard (citing, example, at 7 Legisla- freedom in an Va. art. II, § (requiring Virginia's Congressional Reapportionment relatively tive Commission's contiguous compact)). districts to performing lesser legislative freedom in state which, above, redistricting, gov- as noted Actually, justiciability such a claim’s under II, Pennsyl- erned Article Section 16 of is, Bandemer, best, federal law at unclear. In Constitution; political vania subdivisions’ less- Supreme the United States Court held that performing political-subdivision er freedom justiciable Equal claims such under the IX, redistricting, is governed Article Clause, agree Protection but was unable Constitution; Section 11 of the However,, Vieth, adjudicative-standard. *41 performing and other lesser states’ freedom in issue, the- court revisited the and a four-Jus- redistricting subject to plurality they tice indicated would overrule 782 128, Commonwealth, requirements. 794 constitutional Pa. violates See v. 568
Erfer ¶ alia, Singer at 325, (2002)), (citing, id. 16 inter v. it is 331 insufficient A.2d 387, 897, Sheppard, 346 A.2d 900 redistricting employs 464 Pa. plan allege that (1975)). se: partisan political or classifications per
rather, must that the party demonstrate claims, Turning to the Com Petitioners’ partisan politi plan employs excessive or rejected monwealth first Petitioners’ ¶¶ (cit classifications, see id. at 10-15 cal argument 2011 that the Plan violated their Vieth, 307, alia, 124 supra, at ing, inter I, rights speech pursuant Article free J., (opin (Kennedy, concurring) 1769 S.Ct. Pennsylvania Constitution Section 7 parti predicated on ing that such a claim I, assembly free Article pursuant se political per san or classifications Pennsylvania Constitu Section 20 of the on that one nonjusticiable, predicated but acknowledged that these tion. court [partisan politi allegation that “the or provisions First Amendment predate the applied ... were an classifications cal] Constitution, to the United States or in a way invidious manner unrelated that, interpretation is often although their might legislative objective” any legitimate guided by analogy to First Amendment (de Erfer, at 334 justiciable); be 794 A.2d jurisprudence, they provide broader pro justiciability a claim’s as scribing such speech tection of freedom individual cor judicial control or “not amenable cited its association. The court decision for egregious save the most abus rection Working Party v. Families Common es.”); Legislative Reappor Holt v. 2011 (Pa. wealth, 2017), 169 1247 Cmwlth. A.3d Comm’n, 614 tionment Pa. 38 A.3d proposition party for the where a I”) (2012) (“Holt (acknowledging, 711, 745 challenges a statute as violative Article of state redis legislative the context adju Sections 7 and fundamental redistricting tricting, that “has an inevita is a dicative means-ends test framework inevitably legislative, and therefore an bly weighing magnitude “the character element,” political, indicating but that con imposed [statute] burden requirements as a function stitutional against proffered to justify interests “ most potential “brake on the overt of ex ‘regulations specifically, burden”: abuse”)). The cesses and court noted plaintiffs’ imposing burdens severe Petitioners, they challenging insofar rights narrowly tailored must be and ad constitutionality, 2011 Plan’s bear a compelling vance state interest^-] [l]esser unconstitutionality, burdens, however, its proving burden trigger exacting less re view, important regulatory that it is insufficient to dem arid them and a [s]tate’s exists; usually enough justify plan better fairer interests will onstrate rather, they reasonable, nondiscriminatory must demonstrate that restric ” ¶ at clearly, plainly, (quot- Plan tions.’ Law 25 palpably 2011 Conclusions agreed holding, concurring judgment, equal- with an number of in the with the
Bandemer's
it,
they
nonjusticia-
indicating
plurality
al
at bar was
that the claim
Justices
would reaffirm
ble,
political parti
though they
agree on an
he viewed some
remained unable to
insofar as
Vieth,
permissible
adjudicative
political
san or
standard. See
U.S. at
classifications
and,
270-306,
circumstance,
(plurality opinion)
largely
could
motivated
voting
members
36
tive and
in
Democratic
political pro-
participation
tioners’
n
negative
in'
Given
the affirmative.
reasoning
to
cess,
that
intent
essentially'
votes, the 2011 Plan would
Republican
advantage
a
-over
rival-
gain
partisan
a
PA House
passed the
without
not have
to an intent
to
equivalent
not
faction is
fact that
support. The
some
Democratic
voters, that-gleaning
the faction’s
punish
of the 2011
in favor
voted
Democrats
a
Assembly as
of the General
the intent
against
finding
a
militates
Plan
that the
further
largely impossible, and
body was
Assembly
that the
or conclusion
General
represen-
Democratic state
fact that some
Plan, in
or in
passed the 2011
whole
favor of the 2011 Plan
voted
tatives
in
to actual votes cast
part,
response
aas
that its
notion
undermined
intent.was
elections,'
prior
by
.
Democrats
Democratic voters:
punish
to
element,
¶¶
to the third
Peti-
respect
numbering
(paragraph
With
Id. at
35-37
.
failed to
similarly
omitted)
tioners have
adduce
Assembly
that
the General
evidence
ar
Next,
rejected
.
Petitioners’
the court
any
Plan
motive
passed the 2011
with
their
the 2011 Plan violated
gument that
(or
against
others
retaliate
Petitioners
pursuant Arti
rights
equal protection
for Democratic candidates
voted
who
I,
Pennsylva
26 of
Sections 1 and
cle
election)
exercising
particular
for
any
(the “Equal Protection
nia Constitution
right to vote....
their
Guarantee”)
right
to free and
party’s
one
candidates'
Intent
favor
Article
pursuant
Sec
equal
elections
conflated
over another should
Pennsylvania
5 of
Constitution.
tion
against
voters
with motive
retaliate
context
opined
“[i]n the
The court
particular
casting
for
their votes for
Pennsylva
partisan gerrymandering,
no
prior
election.
candidate
There
has
Supreme
stated that
Court
nia
voting
suggest
evidence to
record
coterminous
Guarantee is
Equal Protection
Plan, the
the 2011
General Assem-
of the
Protection Clause
Equal
with the
thereof,
any particular
bly, or
member
to the
Amendment
United
Fourteenth
punish
a desire
was motivated
States, Constitution,”
Conclusions
Law
against Pennsylvanians who
(cid:127)retaliate
¶
(citing
(citing
at 332
Erfer,
45
794 A.2d
In-
candidates.
voted
Democratic
Stroudsburg,
Borough
Love v.
528 Pa.
deed,
assign
singular
is difficult
1137,
(Í991));
320,
1139
Kramer
A.2d
597
dastardly
to a
motive
branch
(Rite Aid
Comp. Appeal Bd.
v. Workers’
up of 253-
government
individual
made
518,
309,
Pa.
A.2d
Corp.), 584
883
532
from distinct
elected
districts
members
Dist.,
Pennsbury
(2005);
Sch.
72
v.
Zmflik
distinct, constituencies
divided
with
(Pa.-
2013),
24
Cmwlth.
n.
A.3d
789
party affiliations.....
(2014);
1096
Doe
1, 104
affd,
Pa.
A.3d
629
(Pa.
Miller,
314 n.9
A.2d
passage of
v.
886'
final
On
Plan
2011
curiam,
2005),
House,
per
587 Pa.
voting,
members
Cmwlth.
PA
affd
).53.54
502,901
(2006)
affirmative,
some
A.2d
136 voted
reviewing equal protec
opined
Supreme
when
Court
53. The court further
Erfer
Amendment
Su
tion claims under the Fourteenth
“consistent with decades
”
holding
precedent
Constitution.’ Conclu
preme
to the United States
Court
Love,
¶
(quoting
A.2d
Pennsylva
‘equal protection provisions of the
sions of Law at 45
.,.
Albert,
1139; citing
v.
analyzed
under the
Commonwealth
nia Constitution are
(2000);
James
v.
Pa.
the United States
A.2d
same standards used
determining
further
Commonwealth
redistricting plan
whether
opined
previously
that this Court has
de was
parti-
on the
unconstitutional
basis
Equal
Elections
Free and
scribed
san gerrymandering;
as requiring that elections “are
Clause
A plaintiff raising a gerrymandering
publie
open
qualified
to all
electors
claim must
"in-
establish
there was
alike;” that “every
has .the same
voter
against
tentional discrimination
an iden-
voter;”
any
right as
other
that “each voter
tifiable political group and that
*44
there
right
the law has
to cast his
under
was an
on
discriminatory
actual
effect
counted;”
honestly
have it
ballot and
that
group.
that
order to
In
establish dis-
to
“the
of the
exercise
regulation
right
effect,
criminatory
plaintiff must
franchise[;]”
franchise
deny
does not
n show:
(1)
group
that
identifiable
has
right
“no
of
and
that
constitutional
been,
be,
or
projected
is
disadvan-
elector
qualified
denied
subverted
(2)
taged
being
at
polls;
that by
but,
him[,]”
ger
in the
partisan
context of
disadvantaged
polls,
at
the identifi-
rymandering, merely
protec
reiterates the
political
group
able
power
will lack
and
Equal
of the
tions
Protection Guarantee.
be denied
representation.
fair
¶¶ 40 (citing
Legisla
Id. at
Pa.
In re 1991
Comm’n,
¶
Reapportionment
tive
(internal
530 Pa.
at
Conclusions of
47
quo
Law
335,
(1992) (quoting
A.2d
City
609
132
marks,
citations,
tation
and brackets
City
Council
v.
Bethlehem Marcin
omitted). The Commonwealth Court ac
of
of
cin,
1,
1320,1323 (1986)),
512 Pa.
515 A.2d
and,
knowledged
s
that
Bandemer
332).55
794
Erfer,
and
A.2d
it,
test,
abrogated
Erfer's,
was
Vieth
law, but, noting
as a
of
matter
federal
that, in
The court
re 1991
explained
In
,
not
Comm’n,
specifically
that
Legislative
yet
Court has
Reapportionment
it,
adopted
suggested
this Court
a standard
discarded
nevertheless endeavored
of
justices
apply
Although
Bandemer for
claim.
plurality
in
it to Petitioners’
137,
1302,
Kramer,
SEPTA, 505
1305
’coterminous[.]”
Pa.
477 A.2d
tections
883
[were]
n
(1984);
Allegheny
Moreover,
Laudenberger v. Port Auth.
our
in
A.2d at 532.
affirmance
52,
147,
Cnty., 496 Pa.
155 n.13
436 A.2d
parties’
in the
was
failure
rooted
Zauflik
(1981);
&
R.R. Co. v.
Baltimore
Com
Ohio
under
analysis
an
v.
conduct
Commonwealth
monwealth,
461 Pa.
A.2d
Edmunds,
Pa,
(1991).
586 A.2d
(1975)).
n.10;
See Zauflik,
note
at 1117
A.3d
infra
Doe,
concerning
Finally,
53.
not
the issue was
Notably,
Erfer,
in
determination that
our
meaningfully litigated before the Common
Equal
Protection Guarantee was to be
Court, and,
event,
any
wealth
this Court
Equal
adjudicated as
with the
coterminous
curiam,
per
rendering
affirmed its decision
Clause
Amend-
of the Fourteenth
Protection
precedential
no
value
salient
the instant
ment
United States Constitution was
Tilghman,
case.
See Commonwealth v.
Pa.
Love,
predicated
merely
on
we
in which
re-
578, 673
(1996) (noting
A.2d
that
903-03
Equal
that the
marked
Protection Guarantee
decisión,
affirming
as
orders
a lower courts
Equal
involve
Protection
the same
Clause
opposed
per
opinion,
to its
not
curiam should
i.e.,
jurisprudential
a means-ends
framework —
endorsing
reasoning).
be construed as
its
taking
suspect
into
test
account a law’s use
classification,
burdening
fundamental
below,
Notably,
although
we
discussed
rights,
justification
light
objec-
its
its
tives,
reject
331-32;
suggestion
did
Love,
that the
Erfer,
Free
See
794 A.2d at
Erfer
Equal
greater
Kramer,
provided
Clause
Elections
true in
A.2d at 1139.
same was
protection
right
Equal
to vote than the
previously
we
where
remarked that we had
Guarantee,
rejection
pred-
Protection
our
was
employed
applicable
“the same standards
persuasive argument
equal protection
icated on the
federal
of a
claims”
that
lack
'
331-32,
dispute
pro-
Erfer,
parties therein
not
“that the
that
did
end.
acknowledging that Petitioners had feelings. finding based Petitioners’ intentional discrimination —in tablished Assembly likely provision is no constitutional the General There of, intended, right in to their the 2011 Plan’s creates a voters elected aware law, of choice. As matter of an deter official political consequences court —the Congress represents could estab elected member mined Petitioners not entirety, they an his or her district its even lish that constituted identifiable within the district who' do not group: those political his or her views. This Court will share light In the standard articulated Congress presume members Erfer, on the ad- based evidence represent only portion constit- them trial, duced Petitioners have estab- uents because some constituents simply discrimination, in that lished intentional priorities views on have different intentionally the 2011 so Plan was drawn issues.... At least 3 controversial grant Republican candidates *45 in 2011 18 districts advantage in certain districts within Pe- Plan are safe Democratic seats.... Although 2011 Commonwealth.... for, can, do, campaign and still titioners give Republican Plan can- was drawn to financially support, vote for their an in advantage didates certain districts congression- in every of choice Commonwealth, candidate Petitioners within al can still exer- Petitioners election.... have failed to meet their burden protest right attempt to to cise their showing 2011 Plan to equated that the public opinion congres- in influence their an against intentional discrimination throughout sional the Com- group.... district and political identifiable Voters (or impor- .... most Perhaps monwealth likely who are to vote Democratic voters Republican) particular tantly, in a district based Petitioners and likeminded issues, ex- regardless on the or from across the Commonwealth can candidates affiliation, political power not political polls the voters’ are ercise their at the political group pur- for will legislators identifiable elect who Governor poses Equal remedy any Protection Guarantee unfairness in address and Pennsylvania through reappor- under the Constitution. the 2011 Plan the next following 2020 Cen- tionment U. S. ¶¶ numbering (paragraph Id. at 51-53 sus. omitted). ¶ of Law at la- (paragraph Conclusions 56
Moreover, the court found that Petition- omitted).56 beling they had failed that would ers to establish polls or lack disadvantaged at the would summary, in a Finally, post-script not- political power or fair representation, its court reiterated view that Petitioners they that ing participate remain free identify managea had judicially failed to processes: democratic gerry partisan ble claims of standard Republi- mandering, predicated contend that its While Petitioners that noted prevail congres- conclusions of law on can candidates who what it viewed represent presented sional their “evidence current state districts do and the law,” that there particular acknowledging important views issues them, ignore effectively pending them and before the United States will matters they allege point, system one imagines 56. On the last al that has been structural- court's right ly designed marginalize comfort in their efforts in Petitioners find cold protest change perpetuity. advocate an elector-
787 Reed, Supreme might impact ap 279, 288, Court that U.S. 112 S.Ct. ¶ 65
plicable legal (citing (1992)). Id. at L.Ed.2d framework. Petitioners further Whitford, v. v. Lam supra; suggest Gill Benisek political nature of (U.S. jurisdictional one state expression voting No. 17-333 inherent deserves 2017)). Sept. ment filed greater than protection even other forms expression, right to participate as “the Arguments IV. electing political our leaders” is the Aligned A. Petitioners [right] democracy.” most “basic in our Id. — Respondents and Amici FEC, (quoting v. U.S. McCutcheon -, 1440-41, S.Ct. L.Ed.2d arguments pre- We now address the (2014) (plurality)). begin sented with Peti- Court. We tioners, Respondents arguing those While recognize Petitioners relief, Petitioners are entitled and Peti- matter, Plan instant the 2011 does not supporting tioners’ amici. entirely limit political voters’ Democratic Petitioners first the 2011 assert expression, they that laws which' note dis expression Plan violates the free and free against protected criminate or burden ex association clauses of pression viewpoint- based on content Const, Constitution, §§ see Pa. art. including speech those render laws which 20, which, they pre-date the highlight, subject less nevertheless effective—are provide First Amendment and broader scrutiny analysis. Petitioners’ Brief strict protections for speech' and associational (citing Adjustment Ins. Bureau v. *46 rights traditionally recognized than those Pa., 210, Com’r Ins. Com. 518 Pa. for of under the federal Consistent Constitution. 1317, 1323-24 (1988)). A.2d 542 Petitioners notion, emphasize with Petitioners here, maintain case that such is the as that, in challenges contrast to to federal Republicans give Plan was drawn to restricting expression, laws of freedom advantage congressional 18 13 of out of in which are under the rubric assessed ¶ (see 52; of districts Conclusions Law at apply scrutiny, termediate courts the more ¶ 291) Findings of Fact at discrimi exacting scrutiny strict standard to chal against viewpoint nates of political lenges to Pennsylva such laws under Democratic the Common voters across nia Constitution. Petitioners’ Brief at See by: traditionally splitting wealth Demo Erie, (citing City 46-47 v. Pap’s A.M. of strongholds cratic to the effective reduce 375, (2002) 571 Pa. 591 (“Pap’s 812 A.2d i.e., of ness the Democratic Erie vote — II”)). County, Reading; remov Harrisburg, and Petitioners, ing
According predominantly municipali to these Democratic broad protections Pennsylvania Consti- ties from under the communities broader I, expression combining tution’s Article 7 free them other Democratic Section with municipalities weight clause of of necessarily to the to extend act dilute Swarthmore, i.e., voting, voting “per- Democratic constitutes direct Ea- vote — ston, Bethlehem, Scranton, Wilkes-Barre, expression sonal or disfavor for favor laws,” particular policies, Valley; or personalities, Allegheny knit River (quoting ting together Republican pre “disparate Petitioners’ Brief at 47-48 Com- 397, Cobbs, excising strong monwealth v. 305 Democratic 452 Pa. A.2d cincts while 25, (1973)), representational 27 holds” to diminish gives voters firsthand i.e., rights Pennsylvania’s opportunity political “express their own Democrats — preferences.” Norman v. 12thDistrict. Brief (quoting Id. Petitioners’ 788 practice terminating government proof of the diminished value ed the
As further
basis); Reynolds
employees
partisan
2011
on a
the Democratic vote under the
U.S, 533,
Sims,
each v.
Plan,
that,
emphasize
Petitioners
377
84
S.Ct.
elections,
(1964)
won
506
(invalidating
Democrats
past
three
L.Ed.2d
drawing
18-seats,.despite winning
practice
legislative
only 5 of the
districts
n
unequal population)).
majority
with
Petitioners ad
the statewide
nearly
ditionally
take issue
Common
half
that vote in
with the
vote in
rely upon
no
also
Court’s conclusion that there is
and 2016. Petitioners
wealth
testimony
right
“nonpartisan,
redistrict
experts’
and alternative
to a
neutral
¶ above,
ing process,”
of Law
they
which
contend
Conclusions
plans, described
“powerful
upon
in-
noting
evidence”
cases
Com
.constitute
reaching this
disadvantage
monwealth Court
tent
Democratic voters.
relied
cases,
Holt
equal protection
Id
at 53
at 756-
were
(quoting
A.3d
conclusion
and,
thus, distinguishable
free
57).,
challenges,
speech-based gerrymandering
light
evidence, Petition-
the above
Jn
proceed
Court
high
which the
allowed
argue
2011 Plan
ers
does
—
McManus,
—,
in Shapiro v.
U.S.
any
satisfy
scrutiny
scrutiny,
strict
—or
(2015).
prong, Petitioners they contend that would Erfer, explain articulated Petitioners have won least several more seats had districting map vio- . the Plan not been drawn to intentionally lates, *48 equal protection the if clause it re- burden Democratic based voters flects against .discrimination “intentional past voting histories. political group” an if identifiable and claim,
In rejecting their discriminatory the Common- “there anwas actual effect upon wealth three-part group.” Court relied the on that (quoting Erfer, Id. at 65 332). test Newspapers, First, regarding Uniontown which re- 794 A.2d at the in- alia, quired, challenger inter the requirement, tentional estab- Peti- discrimination lish that the action “an injury.that overwhelming caused that the tioners maintain likely would chill person ordinary a that proved evidence the 2011 Plan inten- continuing firmness from to engage in tionally against that Democratic discriminated (cid:127) activity.” voters, Newspapers, noting Uniontown the Commonwealth long as politically gerrymander so that such tinue specifically found discrimination Second, respect minority with to the iden- of the occurred. the receives some party Peti- political group requirement, event, tifiable any In Petition- seats. do, argue tioners that Democratic voters that, artificially the Plan argue ers because fact, political an identifiable constitute ability deprives voters of the Democratic group, citing the statistical evidence and, representative, to elect Democratic correlation in regarding high Dr. Chen the polarization be- given political the extreme support level candi- Democratic parties, Republican political tween the two geographic units and particular dates repre- not representatives adequately will opinion respect expert Dr. Warshaw’s interests, shutting thus sent Democrats’ of con- highly predictable to the nature pro- political out Democratic voters par- gressional political based on elections cess. ty- reject Common- Finally, Petitioners Third, Plan Petitioners assert that the that the Plan wealth Court’s conclusion discriminatory effect on had actual equal protection principles satisfies be- Commonwealth, Democratic voters potentially cause Democrats will have the arguing thereby, they have been dis- map opportunity to influence new against in an of their exercise criminated pos- right emphasize civil of Article that “the vote violation Petitioners deprived “equal” of an Section and legislature that itself sibility may Equal election in violation the Free and change remedy the law and the discrimi- noted, Elections Clause. As least Pennsyl- not nation is defense under equal protection, matter of Petitioners Constitution,” as, logic, that vania under (1) prove: that created dis- must the Plan every discriminatory law be consti- would (2) proportionate polls, results tutional. Brief at Petitioners’ they shut out “essentially that have been that this Court requested Petitioners political process.” 794 A.2d at Erfer, legislature develop a give the two weeks to allege, upon the evi- 333. Petitioners based new, non- plan that satisfies constitutional above, they satisfy detailed that dence criteria, plan partisan adopt first Plan we drawing element because special of a purposely effectiveness of ourselves with the assistance diminish give Republicans Democrats’ if so. legislature votes master fails do advantage polls dispro- at the created Wolf, Respondents Executive Governor results, portional denying Demo- election Torres, Secretary Marks Commissioner political power representa- crats fair Stack have filed Lieutenant Governor submit, however, tion. Petitioners Petitioners, arguing, for supporting briefs process” second the political “shut out largely by Pe- reasons advanced same element eliminated because should be titioners, 2011 Plan that the violates “unwoi’kable,” Er- vague claiming that expression provi- free association free provided guidance regarding no fer Constitution, sions of the type satisfy that would evidence equal protection principles and well as Bandemer, standard, supra, upon and that Further, Equal Free and Clause. Elections based, impose did Erfer agree the evi- Respondents Executive requirement. such a Petitioners further *49 provided by Petitioners was suffi- dence suggest “essentially imposing that shut counterintuitive, to that the is unconsti- requirement out” as cient establish Plan it to tutional. partisan map would allow drawers con- Petitioners,
Beyond
points
raised
For
part, Respondent
his
Stack adds
that,
Wolf, Torres,
Respondents
Executive
while he concurs with Petitioners’
that,
position
although
Marks assert
the Common-
that the Plan fails strict scrutiny
analysis,
view,
wealth
his
Court found that Petitioners
the Plan also
were
fails
standard,
under the rational basis
required
provide
a
to
as the
standard
assess
Plan
legitimate
interest,
“lacks a
partisan
state
when
creating
considerations
impermissible
instead advances the
inter-
redistricting plan cross the line into uncon-
of achieving
est
partisan advantage.” Stack
stitutionality,
bright
no such
line rule was
Respondent
Brief at 24.
Stack further ar-
necessary to determine that
Plan
was
that,
gues
“[although
Legislative
Re-
case,
unconstitutional in
given
this
the ex-
spondents proffered
hypothetical
state
and, indeed, flagrant
treme
parti-
level of
interests of redrawing
maps
the district
san gerrymandering that occurred. Addi-
conform to
census,
the results of
they
tionally, while the Commonwealth Court
cannot and
any
do not offer
rational rela-
suggested that Petitioners’
must
standard
tionship between that
the map
interest and
account for a variety
specific
variables
they drew.” Id. at
Additionally,
with
such as the number of districts
must
which
respect
to Petitioners’ claim under
be competitive
constitutionally
and the
Clause,
Equal
Free and
Respon-
Elections
permissible efficiency gap percentage, Re-
dent Stack emphasizes that “[t]he constitu-
Wolf,
spondents
Torres,
argue
and Marks
requirement
tional
equal
‘free and
elec-
precise
that
required,
calculations are not
tions’ contemplates that all voters are to
noting that
routinely
“courts
decide consti-
equally.”
be treated
Id. at 25. As the Plan
using
tutional
judicially manageable
cases
overtly
Republicans,
drawn to favor
that are
standards
rooted
constitutional
Respondent Stack maintains that the Plan
principles
that
susceptible
but
are not
heavy
“exhibits the
hand of
action
state
Wolf,
precise
Marks,
calculation.”
...
violating
to democracy,”
offensive
(citing, e.g.,
Stack Brief at 8
N.
BMW of
duty
Commonwealth’s
ensure
Am.,
Gore,
559, 585-86,
Inc. v.
517 U.S.
provides
equal
free and
elections. Id. at 26.
(1996)
116 S.Ct.
792 criteria, as creating plan, districting as.well process a new traditional
As to the
Wolf, Torres,
requirements.
Voting Rights
Marks as
Act
and
Respondents
federal
10-15,
Respondent
is a
time
sert
three weeks
reasonable
Brief at
Stack
that
Stack
Assembly
spe-
the
and Gov
period for
General
should retain a
offers that
Court
sign
.master,
a new
ernor to
and
into law
enact
Dr.
cial
could reference
who
plan,
redistricting
noting that the General
drawing
map
guide
a new
a
Chen’s
revised
Assembly previously enacted a
produce
fail
map,
legislature
the
should
only
districting
plan within
in a
map
timely
fashion.
Wolf,
days of
so.
10
the court’s
do
order
Cause, like Petition-
Amicus Common
v,
Vieth
Torres,
25
(citing
Brief at
Marks
ers,
Plan violates
that the 2011
contends
478,
Pennsylvania,
F.Supp.2d
the
and
Clause
Equal
Free
Elections
Vieth,
(M.D. Pa. 2003),
sub nom.
aff'd
Constitution, asserting
Pennsylvania'
the
1769). However,
S.Ct.
U.8.
if
greater protec-
provides
thát
this clause
Assembly
plan
to enact
fails
General
than the
right
tions to
vote
federal
deadline,
Respondents
the Court’s
Clause,
Equal Protection
Torres,
Wolf,
suggest that this
Marks
upon
should draft
plan
consider
Relying upon our seminal decision
by the
of the
ation
submitted
evidence
Edmunds,
provides
supra,57 which
League
Id. Women
parties.
(citing
right
whether a
analyzing
framework
Detzner,
v.
Voters Florida
Protection Clause should not viewed as Third, argues Common Cause n (cid:127) n coterminous. relative, ju- law dearth case from other risdictions, suggests Cause also that Penn equal Common free regarding .and elec- sylvania supports giving case law the Free tions illustrates was a Equal independent Elections Clause in- guaranteeing right “trailblazer vote,” effect, noting states, interpret noting original that this has of -the Delaware, 1860s, only early Pennsylvania, ed the clause since Mas- evaluating the constitutionali- a clause standard sachusetts Constitutions contained equal Id. ty map of a district guaranteeing free and elections. under Cause that at Equal offers the Free and Elections Clause. Ad- at 14. Common While found ditionally, principle legis- least other regarding one state —Alaska—has provides greater deference, constitution argues that its state lative Common Cause *52 than gerrymandering protection against legislative give deference does not Constitution, see Penin- Kenai the federal Assembly General unfettered discretion State, Borough v. 743 P.2d sula engage gerrymandering partisan in with- (Alaska 1987), suggests Common Cause interference, that, judicial noting out un- comparable provi- general lack Constitution, Pennsylva- like the federal other indicates sions state constitutions in specifically nia’s requires the Constitution that,. Pennsylvania in should “[a]s challenges legisla- state review declaring right in Const, lead the states II, Pa. art. tive district See maps. elections, stamp- this by free fair time 17(d). § Cause Common While concedes ing Cause gerrymandering.” out Common legislature typically sub- enjoys Brief at 14. matters, redistricting stantial in deference maintains it not Common Cause asserts that the that such deference is Lastly, circumstances, Pennsylvania Constitution tradi- defeats such as warranted policy arguments support case, tional made the “faction in control instant where practice gerrymandering, such as legislature” authority of the used its difficulty identifying a purported political advantage, than to create rather to assess workable standard constitutional map create which reflects “true will notion of def- legislative violations and the at 17. people.” Common Cause Brief congressional drawing erence in districts. four Asserting that the Edmunds fac- respect specifically, More with to the diffi- giving Equal tors the Free support standard, culty of identifying Common effect, independent Com- Elections Clause long that the three criteria Cause submits mon that the 2011 Plan Cause concludes drawing voting for districts in Penn- used because, provision violates as exhibit- contiguity, in- sylvania compactness, — evidence, it is com- ed Petitioners’ tegrity political provide subdivisions— nor pact contiguous, respect or does by which to sufficient standard assess Moreover, political boundaries. subdivision map whether the Free an electoral violates that the Common Cause asserts secretive and Equal Elections Clause. Common manner in the Plan was which created that, because Cause stresses these criteria legislature strongly suggests that the drew Pennsylva- are into specifically written im- with the districts Const, Constitution, II, § nia see Pa art. proper, highly partisan motive of benefit- ... com- (“representative districts shall be ting Party, rather Republican than do- posed territory .compact and continuous ing people so with the will of the in mind. equal population practicable as nearly circumstances, Under these Common absolutely necessary .... no coun- Unless up- argues Cause that this Court should town, ty, borough, town- city, incorporated principles hold democratic the Penn- ship forming or shall be divided in ward sylvania and strike Constitution down the representative dis- either a senatorial gerrymandered pursuant Plan the Free trict”), provided and have the basis Equal Clause. Elections legislative maps invalidating state district Amicus Center Justice supra, they see- Holt Brennan past, (“Brennan Center”) argues likewise sufficiently present a be- precise feasible can, trine, half Petitioners that this Court hamstrung has also federal should, indeed strike down the 2011 Plan courts in partisan cases, gerrymandering asserting, as unconstitutional. In so Bren- does not this restrict Court from acting in emphasizes although nan Center cases, such as this Court held that degree good political “give- some faith political question doctrine renders a case and-take” bound to occur the redis- with non-justiciable only when tricting process, presents par- this case Constitution “explicitly or implicitly” dem extreme, ticularly unconstitutional form of onstrates “the clear intent to entrust partisan gerrymander which must be legislature with prerogative the sole remedied the Com- Court. While effort[s],” assess the adequacy its own monwealth highlighted Court below (quoting id. at 19 Penn William Sch. Dist. difficulty identifying a workable stan- — Educ., Dep’t -, v. Pa. Pa. when, dard to precisely, partisan assess *53 (2017)), A.3d Pennsylva and the unconstitutional, gerrymandering becomes nia Constitution contains no such limitation Center “judicial Brennan maintains that regard with interpreting the constitu stamp action to gerrymanders out extreme tionality partisan of congressional redis limited,” can be focused and Brennan Cen- tricting. 6, explaining ter Brief at that of cases Finally, Brennan Center that contends extreme, gerrymandering unconstitutional partisan extreme gerrymandering, such as relatively are easily rare and are detecta- case, “contrary the instant to funda- two, upon objective ble based sin- indicia: mental constitutional and val- democratic gle-party redistricting pro- control of the ues,” undermining legislative both ac- history competitive cess and recent of countability legislative people the elections. Id. at Brennan Cen- statewide 7. representativeness. Id. at Brennan ter observes that these factors have been finding Center asserts Plan un- the present every past state in decade the constitutional in this case will “enhance congressional districting which had a map legitimacy Pennsylvania’s of democra- bias, showing partisan including extreme cy” among and restore confidence Penn- Pennsylvania during the creation sylvanians in Id. political process. 2011 Plan. Brennan further Center offers metrics, accepted quantitative that other efficiency gap, such as the the seats-to- points Similar to the raised Petition- curve, votes and the mean-median vote ers, amicus, argues AFL-CIO share, can of partisan measure the level 2011 Plan is unconstitutional under bias in identifying a state and assist in I, I, Article Sections 7 and and Article gerrymandering, noting extreme that the Constitution, 5 of Pennsylvania Section performed poorly Plan of under each provides independent which asserts these metrics. sug- basis for relief. The further AFL-CIO I, gests that Article Section 1 of the Penn-
While Brennan acknowledges Center Constitution, sylvania equal- which ensures that federal courts have been hesitant law, ity under the and Article jurisdiction gerry- exercise Section partisan over Constitution, of Pennsylvania mandering claims because concerns over protects Pennsylvanians against federalism on the denial and excessive burdens docket, suggests rights, pro- federal Brennan Center discrimination their civil that this Court is not to the vide additional bases for relief subject same under state Moreover, constraints. support reviewing Brennan law and Plan Center under highlights question that the doc- political scrutiny. strict nature. provisions pur- highlighting pernicious its each these Grof-
Analyzing suggested factors, provide man and also Gaddie Edmunds the AFL- suant assessing partisan gerry- standard highlights history rich CIO cases, that a mandering proposing parti- Constitution, including, most Pennsylvania gerrymander is unconstitutional if san Constitu- notably, following elements is each three of-ensuring the forefront ro- tion was at (1) partisan asymmetry, meaning shown: representation- rights associated bust districting “disparate map had a im- the-right such to freedom democracy, al pact political on voters affiliar based association, right speech tion,” partisan by degree as measured law, right and the equality under gap, bias and mean-median Grofman which, elections, equal in free vote (2) 14; Brief lack respon- Gaddie extended, Pennsylvania, *54 maintain their standard is Gaddie that right any er same other vot- has the as judicially manageable, it ap- can be er; each the law under has when voter plied by courts “coherently consis- right to cast have his ballot and it the cases, urge tently” they across counted; honestly regulation the of when Id. adopt it. at 36. right the the does exercise franchise amicus, Also, Civil Lib American itself, or make deny the franchise it (“ACLU”) Union argues support erties denial; toas a so difficult amount to of Plan Petitioners that the 2011 violates quali- no right when of constitutional expression free and association clauses is fied elector subverted denied him. Constitution, Pennsylvania of assert at Winston ing, (quoting AFL-CIO Brief 20-21 position, consistent Petitioners’ Moore, v. 244 Pa. at A. 520 Pennsylvania pro that Constitution (1914)). The AFL-CIO maintains that the greater protections for rights vides these of unique history provisions these demon- than, does First Amendment to the they heightened pro- "provide strates that United States ACLU Constitution. any analogous beyond provisions tections notes the unique also nature of the Penn thus, constitution,” and, pro- in the federal sylvania Equal Free and Constitution’s legal finding separate basis vide a Clause, which, suggests, Elections it 2011 Plan unconstitutional. Id. at 4. more grants protections robust for the Grofman, professor Amici Bernard of right to vote than the-federal Constitution. University of political Further, science at the Cali- aas policy, ACLU matter fornia, Gaddie, professor Keith suggests that greater protections University political associational, at speech, rights science voting Oklahoma, Petitioners, the call “marketplace echo consistent with the ideas” and other amici Respondents, developed concept Executive Oliver Justice Wen Holmes, notes, which, provide high for this Court act and check ACLU dell importance partisan lights government gerrymandering, on extreme view ed, ever-evolving point neutrality maintaining technology the free which makes it exchange of critical to democra more than ever to gather specif- ideas our feasible ic cy, proqess data about voters and utilize particularly where electoral that data ACLU at to “tailor durably maps.” is at stake. Brief 6-9. biased Political 12. These am- Science Brief at Professors’ Petitioners, main- the ACLU Similar to ici warn that instances of partisan extreme partisan gerrymander- that tains extreme only' will gerrymandering worsen as this unconstitutional, that ing explaining is un- technology develop. continués partisan gerrymandering constitutional is po- Plan, from the “distinct inevitable to the these amici Turning incidental partisan litical considerations and effects agree represents all particularly that occur,” instead, id. may 22, and, partisan egregious form of gerrymander- when a an intent to occurs state acts with ing. that the They suggest challenge to the by drawing “lines for “entrench” district Plan justiciable Pennsylvania is under purpose locking advan- partisan Constitution, they judicial- assert that regardless likely tage the voters’ ly manageable standards exist which Id. Arizona State (citing 22-23 choices.” constitutionality assess the Plan. 2658). Legislature, S.Ct. at The ACLU Pittsburgh More specifically, Founda- political suggests such entrenchment tion offers redistrict- case, present and it was instant ing “(1) plan is unconstitutional' if it: Assembly’s that the maintains General de- designed intentionally predominantly to at- mi- against liberate effort discriminate result; (2) partisan tain largely disre- scrutiny, nority-party triggers voters strict gards districting accepted traditional and the ACLU Legislative notes the Re- criteria; (3) (or has been demonstrated spondents satisfy. have no made effort to reliably predicted) have an actual Thus, argues the ACLU this Court disparate impact on and unfair a substan- Pennsyl- find the Plan should violates tial number- Pitts- voters.” vania Constitution. burgh Brief at 13. Political Foundation *55 Science Professors submit
Additionally, courts Profes- Political Science simulations, Foundation,59 computer sors,58 should use as well Pittsburgh measures, as to objective, social science Legal Campaign Center each -filed have bias, districting map’s partisan amicus curiae briefs in of Peti- assess a support amici focus efficiency gap such largely as the and the mean- tioners. These increasing prevalence partisan gerry- Lastly, Campaign median Le- of difference. gal argues mandering occurring that this Court across the United Center should States, they sophisticat- which to adopt proposed attribute Petitioners’ standard.60 identify quality Pittsburgh region Science them- 58. Political Professors of life university “nationally recognized issues, re- selves as addressing community evaluating and political scholars search scientists from responsible promoting philanthropy, and con- the foremost some of academic institutions necting to the donors critical needs country Pennsylvania from across Foundation, Pittsburgh community.” The behavior, collective whose studies on electoral (last http://pittsburghfoundation.org visited n identity, redistricting United voter in 29, 2018). Jan. published leading States have been scholar- bopks.” ly journals and Pro- Political Science application file 60.The to an brief amicus Brief fessors’ at 1. tunc, pro filed Concerned Citizens nunc granted. Democracy, is Pittsburgh non-profit is Foundation improve organization which “works to Elections, F.Supp.2d Bd. Ill. State Legislative Respondents B. (N.D. 2011)). Ill. arguments to turn nowWe Moreover, on this Court’s deci relying They .Legislative contend Respondents. Reapportionment in Holt v. sion as districting legislation, such Commission, Pa. 67 A.3d issue, implicate, not Plan at does let (2013)(“Holt II"), Legislative Respondents violate, speech or associational free alone political” highlight “inherently nature “is to voter lights because directed which, they note, redistricting, Respon- speech Legislative or conduct.” constitutionally permissible. Court found Rather, according at 23. Brief dents’ Legislative Respondents’ (quot Brief at 27 Respondents, Plan Legislative creates II, 1234). Further, ing Holt 67 A.3d at districts,” giving Peti- equipopulous “18 distinguish in the extent that Petitioners as weight votes the same other tioners’ permissible argument “polit their between allowing fully Pe- voters and they ical considerations” and what deem political pro- participate titioners intent,” impermissible “partisan Respon by voting for the their cess candidate concepts maintain that “the two are dents any associating political choice and intertwined,” inextricably “political par Id. party they or candidate so choose. constituencies, comprised ties are which part includes ‘communities interest’— Regarding reliance on cases Petitioners’ argue ‘good’ what Petitioners side ef which less involving speech laws made ” such, ‘political’ Legislative Id. at 28. As suggest fective, Legislative Respondents Respondents that Petitioners’ ar contend to the inapplicable case those decisions gument that no partisan considerations they bar because concern laws permitted during the should be redistrict actually speech, restricted whereas the II ing process runs afoul Holt and nec instant Democrats Plan case allows essarily They suggest must fail. through such communicate desired otherwise, any Pennsylva find would allow candi voting for preferred means as their challenge, in potentially nia voter to dates, con joining Party, the Democratic validate, plan designed protect finan representatives, tacting s or protect incumbent “corhmunitie about. cially supporting they care causes Respon “sweeping interest” —a rule” Legislative Although Respondents concede law, justified by dents contend is not might that the Plan make it more difficult facts, public policy. Id. at 29-30. “persuade majority of Petitioners 705,000+ dis other voters in their Next, Respondents assert that Petition- *56 agree to with them on the candidate tricts requirements the of a satisfy ers cannot 25, they emphasize at they prefer,” id. upon the Relying claim. retaliation Union- or as speech have test, that Petitioners no free Newspapers Legislative town Re- right agreeable or more sociational “an spondents argue first that fail Petitioners audience,” citing persuadable at id. provide establishing evidence record holding that variety of federal cases the that Plan was enacted with a redistricting plans challenged therein did retaliatory to coerce Democratic motive voters’ Amendment differently not violate First voting they into than voters (citing, e.g., rights. League Id. Women To contrary, would vote. Re- otherwise 1:11-CV-5569, Quinn, legislature v. No. that spondents Voters no maintain (N.D. 28, 2011); *2-3 that reasonably gerryman- WL Ill. Oct. would believe voters to Map dering Comm. a Fair and Balanced v. would coerce vote differ- ently, they respect that submit With further the second prong, Erfer record Respondents demonstrates maintain that that was Plan Petitioners bipartisan passed indicating with failed establish that the Plan support, had a discriminatory the Plan was not effect on Democratic “dastardly drawn voters and, Id. specifically, more prove failed to Respondents motive.” also con- that the Plan in political resulted a lack of that prove tend Petitioners failed to that power which .effectively shut out Demo- the Plan a person “chilled” from continu- from political process. crats Respon- ing participate political process, that, argue contrary dents to Petitioners’ as the evidence of record not show a did assertions, specifically Court found decrease voter partic- turnout civil or that merely voting political .for a candidate ipation following the Plan’s enactment. who loses an election does shut out a Lastly, Legislative Respondents highlight Erfer, see political voter process, that political fact gerrymandering is they that, A.2d at submit not typically type of government con- event, any the five “safe” Democratic seats retaliation; duct associated with a case in the delegation demon- rather, Respondents note that retaliation that strate Democrats shut are not out. typically claims involve overt in- actions Respondents that, further observe al- tended to invoke fear target, in the such as though suggest, Petitioners to con- due police intimidation organized tactics gressional polarization, that in- Democrats’ campaigns. harassment adequately represented terests are not Next, Legislative Respondents assert congressmen, their they provide fail to evi- that Petitioners failed to that prove substantiating dence this claim and fail to 2011 Plan equal protection violated and identify the interests Democratic voters Equal Free and Elections clauses allegedly represented are not in con- upon Relying Constitution. gress, particularly Democrats those who Erfer, Respondents contend that Petition- “split are ticket” voters. no produced Plan ers evidence that Moreover, to the extent that Petitioners designed
was to intentionally discriminate suggest that element .second voters, against Democratic emphasizing test should be as unwork eliminated Erfer bipartisan manner in which Plan able, Respondents maintain that we.should adopted, claiming Petitioners’ deny request, claiming Petition statistical data does not account for the ers seek eliminate that element because nonpartisan various factors considered they simply Respon are unable to meet it. Plan, drawing the such as preserving the argue advocating dents further districts, core of existing com- preserving element, the removal of Peti the second . interest, munities incum- protecting essentially seeking tioners a state con Respondents bents. suggest also right proportional represen stitutional Democratic voters do not constitute tation, which Supreme States the.United political they “identifiable group” because Bandemer. See expressly rejected people beyond Bandemer, encompass a range wide 139, 106 S.Ct. 2797. U.S. belong those Party, event, who Democratic any Respondents emphasize In *57 Pennsylvania frequent- and because voters Petitioners met their burden of have not ly split their tickets establishing Democratic depart between that this Court should candidates, Republican and it making upon diffi- precedent the federal and Erfer clearly relies, cult to identify solely protection a it equal voter as which as the guarantees “Democratic.” under States and the United Respondents that Legislative they Constitutions are cotermi submit nous, suggest not other and Petitioners do a should receive new trial.
wise. Legislative conclude Respondents Respondents further assert even if not cautioning adopt Court should that this were to abandon the Court standard this redistricting beyond legal criteria for those in Erfer, Petitioners’ claim articulated Constitution, claiming in Pennsylvania’s because, pursuant fail nevertheless would infringe legisla- doing so that would Supreme United Court to recent States tive function and run afoul the federal managea- is judicially there precedent, no Accordingly, Respon- Elections Clause. to claims which evaluate ble standard ask to affirm the Com- dents our Court protection to involving equal violations due monwealth Court’s decision and find that Vieth, gerrymandering. See partisan did not demonstrate that Petitioners Respondents S.Ct. U.S. at and plainly, palpably clearly, 2011 Plan attempt that not Petitioners do observe violates Constitution. manageable judicially a standard to offer standard, place of the apply Erfer C. Intervenors they proposed by nóte that standards voters, Republican candi Intervenors — similarly unavailing, as they amici are office, chairpersons, committee incompatible each other. each are with dates Republi of the other active members Additionally, Legislative Respondents Party they have can invested —stress policy weigh contend considerations time, money, and effort pre substantial creating this against Court heavily new upcoming for the election paring deadlines standard, for evaluating partisan gerry-’ Plan, they upon sug the 2011 based mandering Pennsylvania’s under claims require gest this should clause, they as claim the equal protection congressional’ map before the 2018 new legislature uniquely competent en- be a primaries, as “monumental would redistricting, judicial oversight gage in changes task” educate voters about implicates this area separation-of-pow- in time for the districts Respondents suggest ers concerns. further election. Intervenors’ Brief 17. Interve- variety positive there are ele- problems highlight potential also nors using political ments considerations confusion, as voter as well overall various redistricting, including preserving “core challenges congressional candidates would incumbency, as well constituencies’’ as changes the 2011 face as a result Plan right their the states’ establish districts including poten during cycle, this election they Moreover, manner in the so choose. having to tially new nomination circulate Respondents highlight Legislative various petitions having direct cam redistricting process, on the state checks paign potentially activities to new voters provision the “Make -or Alter” such as demographics. Executive Re While the federal Elections Clause United Constitution,61 spondents the date maintain 'that political States threat extended, turn, primary Intervenors political when' could retaliation tides and, imposed that an Pennsylvania, legislation contend extension bi-partisan cycle late in the “result in commission to election would establishes ’ Nevertheless, significant logistical challenges county lines. draw district should standard, administrators,” decide select a new this Court as well sub election 742; supra p. 61.- See
801 stantially borne the costs state Intervenors increase submit that we should likewise Id, at county governments. 29. Accord give legislature the a reasonable and ade- Intervenors, ing to the above-described to quate time Plan, which correct the challenges particularly pro be would they suggest could which in place be for respect special nounced with elec the 2020 elections. counseling Further District, Congressional tion the 18th against the remedying immediate year. this March 13 of scheduled deficiencies, 2011 Plan’s constitutional In- find, highlight tervenors the fact that Petition- Intervenors would based While ers, Vieth, explanation, without upon have that Petitioners not three waited elec- (almost gerrymandering that their partisan cycles years) shown' tion seven bring justiciable, claims, are this Court indicating claims should any that constitu- justiciable nevertheless find the claims pressing. tional issues are not Intervenors unconstitutional, they argue the 2011 Plan also cite the United Supreme States give legislature we must the first that Gill, pending Court’s decision Plan, opportunity correct the as order they impact note may resolution this giving legis ing new districts without case. rectify any constitu lature chance separation-of- violations tional would raise Analysis V. so, In doing concerns. Intervenors powers analysis begin We our the chal that our assert Court should follow the lenge to 2011 presump Plan for relief this Court en standard that tion that Assembly General did not Bloom, 438, 415 Butcher v. Pa. dorsed intend violate the Consti (1964), wherein, finding 203 A.2d after tution, “in part judi there because exists redistricting plan state violated cial our presumption that sister branches supra, our Reynolds, Court declined take constitutional seriously their oaths.” redistricting in light immediate order Commonwealth, 539, Stilp v. “[sjerious Pa. orderly disruption state 918, (2006); see A.2d also 1 processes governmental 938-39 Pa.C.S. election basic 1922(3). pre § Accordingly, from the statute functions” result would valid, immediate action. Intervenors’ and will Court’s sumed to be declared ‘ Butcher, 203 (quoting Brief at 17 A.2d only if the challenging unconstitutional Instead, 568). note Intervenors heavy proof parties carry burden place until opted plan leave the after “clearly, palpably, that the enactment upcoming as to election so allow Constitution.” See plainly violates the West legislature to have a opportu “reasonable Zahorchak, v. District School Area Mifflin nity legisla reapportionment to enact new (2010). 607 Pa. 4 A.3d tion,” giving legislature almost a full Butcher, (quoting to do so. Id. at 23 year review,62 for the fol Upon 569). 203 A.2d at reasons, persuaded by are lowing Peti we presentation's before the other Claiming that tioners and the same concerns in case, clearly, plainly, instant present Butcher in the us the 2011 Han consideration, following Given us as the this case is before will due afford them' grant jurisdiction, hearings jurist extraordinary presided over was in our our who Further, position facts.” An standard review is novo. al determine ck best Pa, 581, Commonwealth, though findings by Judge nenberg made fact v. omitted). Court, (citations (2000) binding Brobson are on this "we A.2d *59 802 Further, if, process in the of un Elec- Equal violates the Free and
palpably
provision
dertaking explication of a
of the
of our Constitution.63
tions Clause
Constitution, any ambiguity
Pennsylvania
plain language
in
apparent
the
becomes
Equal
Free and
Elections Clause
A.
rules
inter
provision,
the
we follow the
Constitution,
Pennsylvania’s
when
generally
pretation
appli
similar to those
1776,
as
adopted
widely
in
was
viewed
“the
See,
construing
e.g.,
when
statutes.
cable
radically
early
of all the
democratic
most
Commonwealth,
v.
Township
Robinson
Gormley, “Over-
state constitutions.” Ken
(2013);
564,
901,
Pa.
83
945
Com
623
A.3d
Law,”
view of
Constitutional
Omar,
595,
v.
602 Pa.
981 A.2d
monwealth
ed.,
Gormley,
in
appearing
as
Ken
The
(2009).
179, 185
If the constitutional lan
Treatise on
Pennsylvania Constitution A
explicit,
is clear
we will not
guage
Indeed,
Liberties,
(2004).
our
Rights and
3
meaning
by
of the
“delimit
words used
Constitution,
adopted over a full
which was
to a
intent.” Robinson
supposed
reference
Constitu-
decade before
United States
Township,
(quoting
at 945
83 A.3d
Com
tion,
temp-
served as
foundation —the
Acker,
ex Mac Galium v.
monwealth
rel.
Id, Our au-
late—for the federal charter.
(1932)).
29,
159,
162
If
Pa.
A.
160
308
Constitution,
than
state
rather
tonomous
provision
constitutional
are not
words
juris-
“reaction” to federal constitutional
may
explicit, we
resort
considerations
prudence,
as a
stands
self-contained
than
plain language
discern
other
law,
body
self-governing
of constitutional
intent,
context,
including, in
occa
wholly independent protector
as a
and acts
necessity
provision;
for the
sion and
of the
Com-
rights
of the
citizens of our
circumstances under which
amendment
monwealth.
ratified;
remedied;
mischief
be
attained;
object to
be
and the contem
interpretation
touchstone
legislative history. 1
poraneous
Pa.C.S.
provision
constitutional
is the actual
1921, 1922;
Williams,
§§
Robert F.
accord
Ieropoli
language of the Constitution itself.
Interpreting
The Brennan Lecture:
State
138,
919,
Corp., 577
A.2d
v.
842
AC & S
Pa.
Legal
Unique
Docu
Constitutions
(2004).
language
925
“[T]he Constitution’s
189, 195
ments,
City
Okla.
L. Rev.
27
U.
&
must
its
interpreted
controls and
(2002) (state constitutions,
ratified
sense,
people
popular
by understood
electorate, are
as “voice of
characterized
they
adoption.” Id. In
when
voted
its
people,”
inquiry
which
into
invites
so, reading
doing
provisions
understanding”
provision;
“common
rel
any
or
Constitution
technical
“strained
considerations include constitutional
evant
manner” is to
Jubelirer v. Ren
be avoided.
that reflect
convention debates
collective
(2008).
dell,
Pa.
A.2d
body,
leading
intent
circumstances
therewith,
favor
Consistent
must
“we
adoption
provision,
purpose sought
reading which
contradic
natural
avoids
accomplished).
to be
implementation,
and difficulties
tions
completely
to the intent of
Moreover,
Equal
conforms
Free
the framers and which reflects the views
Clause has no federal counter
Elections
and, thus,
comparative
ex
ratifying
Commonwealth
rel.
seminal
part,
voter.”
our
Isaac,
v.
483 Pa.
standard
Common
Paulinski
A.2d review
described
(1979).
Edmunds,
is not
supra,
directly
v.
wealth
equal protec-
expression
the free
we
decision on the
address
Given
base our
Clause,
arguments
by Petitioners.
Equal
Free
Elections
we need not
tion
advanced
Nonetheless,
applicable.64
certain
limitations inherent
gov
form of
obviously may
factors
assist
Edmunds
us
people
ernment
chosen
of this Com
Const,
Jubelirer,
analysis.
our
953 A.2d
524-
Ill, §§
monwealth. See Pa.
art.
28-
*60
Edmunds,
25;
Indeed,
persuasive. A.2d Language 1. n.12. I, Pennsylvania 5 of the Article Section Finally, we Article I is emphasize that Constitution, “Elections,” entitled con- is Commonwealth’s Declaration tained within Constitu- which Rights, spells out contract the social which, as Rights,” tion’s “Declaration government people between and and above, is an fun- noted enumeration “general, great which is such and essen- rights pos- damental human individual quality tial” as to as “invio- be ensconced people sessed of this Common- Const, 25; I, § late.” Pa. & art. Preamble specifically exempted wealth Const, (“All I, § Pa. power see also art. powers government of Commonwealth gov- is all free people, inherent above, As noted section diminish.65 authority ernments are founded on their provides: safety peace, and instituted no Although equal; the Gener- be free happiness.”). plenary, Elections shall absolute, Assembly’s police military, al power power, any not civil shall at time is legislative power prevent restric- subject interfere to the free exercise suffrage. right tions enumerated in Constitution and above, provisions juris- interpreting 64. As noted in our decision similar of that landmark constitution; (4) policy Edmunds, diction's consider- four-part our forth Court set ations. examining routinely we test which follow in interpreting provision Common- of our Const, I, ("To guard § art. 65. See Pa. organic wealth's examines charter. This test against transgressions high powers of the (1) provision relevant of Penn- text of the delegated, we have declare we Constitution; (2) history sylvania of the everything excepted this article is out law; provision, including Pennsylvania case general government for- powers of and shall inviolate.”). (3) jurisdictions case ever relevant law from other remain Const, § This first Constitution and Pa. clause Commonwealth’s art. form, in our meaning through appeared, albeit different ascribed to it we have organic first charter Commonwealth’s our-caselaw. years
governance adopted be- .Constitution was fore States the United History contrast, States adopted. By United no explicit furnishes Our Commonwealth’s centuries-old Constitution —which electoral protections individual’s for an unique history has influenced the evolution minimum rights, any standards nor sets Equal of the text of the Free and Elections pro- for a electoral conduct.of state’s Clause, interpreta- as our Court’s well contain, nor it ever has cess-does Although gener- provision. tion *61 provision. See contained, analogous an during al of character our Commonwealth Right The Un- to Vote Douglas, Joshua A. of the colonial era reflective the was funda- Constitutions, der State L. Rev. Vand. founder, Pennsylvania’s mental of desire (2014) (observing that “the U.S. Penn, a haven of William that'it be toler- right not to grant Constitution does for ance non-discrimination adherents and right through It instead defines vote. beliefs, in religious of various the manner detailing the negative gloss, various rea- colony governed its which the from franchise,”). limit the sons states cannot inception nevertheless certain excluded of text the first clause The broad participation from in official groups its clearly of mandates and un provision this Catholics, government. Roman for exam- possible in the ambiguously, broadest and ple, colony not office in the could hold terms, that all elections conducted in requirement 1693 to to the in the due equal.” Commonwealth must “free and Privileges, precursor Charter of to our In plain expansive with the and accordance in Penn set Constitution which forth sweep equal,” of the words “free we and colony,66 governance manner of for the of view them indicative the framers’ as re- every candidate office was of aspects pro intent that all the electoral quired he in to did-not “that believe swear cess, degree greatest to the possible, be transubstantiation, doctrine that he kept open the voters unrestricted and regarded Mary of the Virgin the invocation Commonwealth, and, also, our conducted superstitious and the as saints guarantees, in manner which idolatrous,” Popish Mass J. Paul Sel- greatest degree right possible, a voter’s sam, Pennsylvania Constitution equal participation process in the electoral Thus, (1971). although successive for the his or representa selection of her at- immigrants European waves of were Thus, government. tives in Article Sec its Pennsylvania tracted colony to the after guarantees 6- equal an tion our citizens promise religious toler- founding by right, citizen, par every with .other ance, in every group which settled elect representatives. their another Stated legal the equal was afforded way, plain language actual and the. Sec Re- right governance. in its participate tion all mandates that have voters thereto, colony lated became divided equal opportunity translate votes their in by geographical time areas This over representation. interpretation into settled, which immigrants these as well the historical consistent both reasons provision religious of this in their inclusion beliefs. our Dist., 418 -19. A.3d at William Sch. Penn English Quaker immigrants fleeing ment. The eastern Presbyterian adherents persecution England a group first to formed were the known as “the Proprietary arrive, Party,”, so part- settled named eastern .their faithful- because- ness colony City in and of-William Penn’s reli- around the tenets gious and political Philadelphia philosophy, they Chester and Bucks joined by were the Anglicans who had also immigrants Counties. German .arrived settled the Philadelphia region. The thereafter sizable numbers and settled Quakers, disillusioned Penn’s embrace primarily in the central northeastern n of Anglican faith, united with German part colony, finally came a pietistic religious sects to party form a large influx of Presbyterians Scots-Irish Quaker known as the “Anti-Proprietary primarily who lived in .the interior and Party.” 6-7; Branning, Selsam at 10. regions frontier colony: first Scots-Irish, angry who at .having .The were Lancaster, York and Cumberland Coun- pleas during for assistance ties, expanding and then westward French and Indian ignored by the War. beyond mountains, areas the Allegheny assembly, colonial was dominated congregating in and near the settlement Proprietary Party, aligned with the Id. which became day Pittsburgh. modern Anti-Proprietary party as a means 4-5. *62 achieving goal their of representation fair groups along These were divided eco assembly. in Branning the at 10. religious- nomic and English The lines. Although political these re- alliances Quakers engaged in who extensive com 1770s, early mained intact until the they banking merce and the most became began to unravel with the tensions occa- wealthy and aristocratic in elements the by general sioned the colonial revulsion at Id colony. at 6. immigrants reap German heavy-handed. the tactics of the British ed a living farming, the comfortable e.g., the imposition of Stamp the Crown— fertile of lands their Rosalind ..settlement. Act the use of of writs assistance Branning, Pennsylvania Constitutional enforce the Revenue Act—which ultimate- (1960). Development, Scots-Irish, The ly in‘the-Revolutionary culminated War. who, occupied regions, the frontier eked Quakers The and the Anglicans remained out through hunting, an existence trap loyal to the British Crown as these ten- ping, farming; and subsistence however, However, sions rose. the Scots-Irish in they tradesmen, also became highly skilled region, western who dominated the Anti- proficient in construction, masonry, and Proprietary Party, strongly support- were ironworking, began to be described as ive of cause of opponents of the which, aprons,” although “the leather in crown, they began to reforms demand pejorative tended as a by members of the by assembly, be made colonial con- colony’s aristocracy, they proudly adopted by Proprietary including trolled Party, badge as a of honor of their" reflective reapportionment representation of to the considerable skills in and abilities their Id. They joined west. at 11. in were professions. chosen Brunhouse, Robert by large of segment effort the working- The Pennsylvania Counter-Revolution in population of the City class of Philadel- 1776-1790, 16 (1942). phia, by requirement disenfranchised groups began align These various Privileges of the Charter of imposed into themselves political nascent factions property ownership requirement for the which, by. 1760s, varying This, exerted de- coupled vote. with the Char- right grees of control over the govern- representation colonial in of restriction ter’s counties,- legislatures un-
assembly to in the belief that bicameral one resulted City by of Philadeh who derrepresentation of the house dominated elites were elect- affairs, monetary property well as deni- in colonial ed on the phia basis region western representation will of qualifications al would thwart the assembly’s deliberately slow repre- to the people, due their expressed'through recognizing in that pace chamber, new counties in the whose sentatives lower Thus, early 1700s, by Id. colonial area. those by were elected whose members by the government remained dominated similarly right suffrage con- of' Chester, Philadelphia, counties Foster, Joseph S. The Politics strained. Bucks, they eclipsed though had been even The Constitution- Ideology: regions of the population the western 1789-1790, Pennsyl- al Convention of City colony Philadelphia. Sel- History, (April No. 2 vania J. Vol. Although, in an sam at 31-33. effort 1992). though with foun- Even concerned groups, assembly grant- these placate such as the structure of dational matters giving seats a concession the west 28 ed government, delegates, response assembly, retaining for the in the while being excluded from experience east, mollify this did little to fervor government, in the participation colonial groups Branning reform. these further explicit provisions estab- included two at 11. right lish protections people The reform opportunity such arose equal representation to fair and adoption of the with the formal Declara- governance of their affairs. Independence by tion of the Continental repre- requirement was that first Congress Congress This also same proportional population sentation be suggesting adopted that the resolution reapportionment legislative seats adopt colonies constitutions the event Const, years. every seven See Pa. done *63 they government had sufficient to “no I, § by of As noted art. IV. one exigencies the their affairs.” at 12. of Id. commentator, product the direct this was Pennsylvania colony, For the was the this majority of personal history the of the of catalyst which the from reformers enabled delegates, requirement the of the City regions the of Phila- the western thus, was, equal representation intended to delphia, now known as “the radi- who were the protect against future individuals ex- cals,” calling a constitu- achieve the of legislative process “by clusion from the convention, tional This convention. persons gained power and who intended to Franklin, presided by Benjamin over Gedid, keep “History it.” John L. of in serving also was at the time who same Pennsylvania as appearing Constitution” Congress, adopted Continental our ed., in Gormley, Ken “The Commonwealth’s Constitution of Rights A Constitution Treatise on which, time, very for its was considered (2004). Liberties, 48 Many Id. at 13. of its thinking. forward requirement, Concomitant with this
provisions prevailing reflected the senti- delegates deliberately incorporated also of delegates ment from the radical into Declaration of that Constitution the City of for a Philadelphia frontier and the Rights they to be considered an political power devolution centralized —-which few, integral part from hands its framework—and there- very of a order Section government respon- the first version Article directly form a more Thus, ought to people. sive to the of the it which "declared that “all elections needs free; legislature having on the that all men adopted unicameral free -with; sufficient evident common allegiance uphold interest gov- frame of new and attachment to community, ernment, have a groups, further those alienated right officers, to elect or to be elected into chiefly state,' part the eastern' of the Const, I, § office.” Pa. art. VII. for whom such oaths their violated reli- gious groups beliefs. Id. These united and
This section
delegates’
reflected the
de-
became known as- the “Anti-Constitution-
sire
secure
pro-
access to the election
alists,”
and later
designation
Re-
cess
all people with an
interest
and,
publicans
still,
later
Federalists.67
they
communities in which
lived—univer-
Supporters of
gover-
the new charter of
suffrage by prohibiting
sal
exclusion
—
nance were allied into a political faction
process
from the election
of those without
known
the Constitutionalists.
property
It, thus,
or financial means.
es-
“leveling”
tablished a critical
protection in
The strife
groups,
between these two
an
effort
establish the
right
uniform
and deficiencies
the structure
new
people
of this
Commonwealth
select
government
ie.,
strong
the lack
ex-
—
representatives
government.
It
ecutive
ill-defined
for a puta-
role
sought to
right
ensure that
body
tive
by the
executive
created
people
equal
would forever
no
remain
mat-
given
Constitution
power
the leg-
over
ter their financial situation or social class.
islature, the Council of
rapidly
Censors—
Gedid,
51;
Selsam,
(“The
see also
at 190
intensified, such that the Commonwealth’s
long struggle by
people
control
government
paralyzed- by dysfunc-
became
rewarded”).
-finally
their affairs was
tion, so much so that the Continental Con-
Opposition to the new Constitution arose
gress
Gedid,
to take it over.
threatened
immediately,
almost
chiefly by
driven
52. These
factions -vied for control
two
Quakers, Episcopalians, and
who
Germans
the- Council of Censors and the General
fought
Revolution,
not
had
and the Assembly throughout
the late 1770s and
commercial
City
interests in the
of Phila-
though
1780s. The Republicans,
well repre-
delphia. Branning at
groups
17. These
felt
Censors,
sented
the Council
could
excluded from participation in the new
garner
necessary
to call a
votes
government just as the factions who had
constitutional convention under its rules.
written the
previously
1776 Constitution
However, popular
dissatisfaction
Moreover,
significant
did.
resentment
gov-
chaotic state of the Commonwealth’s
grew
increasing political power
over the
grew to
degree
ernance
such a
*64
and
of
by
attainment
elected office
those Republicans gained control of the General
of
period
lower
status in
socioeconomic
the
1788, and,
Assembly
in
in November
after 1776. The social and commercial aris-
they passed legislation to call a constitu-
tocracy of the Commonwealth resented the
Branning,
tional
19.
convention.
acquisition
political
of
gov-
of
control
state
Although
to
by
opposition
ernment
there was some
the “leather aprons.” Brun-'
Further,
calling
by
house at 16.
the
of
the
of
the convention
the Consti
exclusion
tutionalists,
of
population through
given
some
the
that the
the re-
1776 Constitu
quirement of
explicit
in
tion contained no
authorization for
“test oaths”
1776 Con-
the
stitution,
voters,
so,
nevertheless,
required
assembly
they,
which
all
to do
candi-
the
office,
agreed
participate
dates
and office
to
to
swear
the convention
holders
history,
As
designation
Republican Party
in this
this
utilized
the modem
which came
only
proper
Gedid,
referred
views on
being
years
the
into
later.
at 52.
governance,
structure of
refer to
and does not
24,1789,
began
against
Rath
voter
on his
eco
November
based
social
which
status,
residence,
continuing
geography
the internecine strife
nomic
of
er
his
than
the
continually
had
new
religious
threatened
or his
Id. at
political
and
beliefs.
n
government, the leaders
Commonwealth’s
137-38.
Constitutionalists,
promi
who
were
of
Consequently,
repre
popular election
deep experience,
leaders
political
nent
by
new
sentatives was
the
Con
maintained
government,
in the
serving
Commonwealth
stitution,
applicable
all
and
elections
Findley, forged what was
such as William
legislature.
of
houses
the bicameral
both
unexpected alliance with
regarded as an
the
Importantly,
evident
consistent with
leadership
of
of
members
the
the
powerful
delegates.to
of
neutralize the
desire
the
James
particularly-
Wilson.
Republicans,
formerly given
had
rise to
factors which
Foster,
of
coalition
dele
at 128-29. The
amongst
peo
the
such
division
rancorous
by Findley
gates shepherded
and Wilson
representa
ple
the selection of their
a new Constitution was re
producing
I,
tives,
Section 5
language,
the
of Article
markable,
ideologi
given
regional
the
and
prior ambiguous
revised
remove all
conven
preceded
which
the
cal strife
had
place,
qualifying
the
language. In its
dele
of
represented
members
the
tion. Its
language
gates adopted
the
present
the
of
counties,
they
came from
state’s
first
which
clause of Article
Section
divergent
of
widely
regions
the
geographic
day by
unchanged to this
remained
the
has
Commonwealth,' ranging
Northamp
states,
of
It
people
this Commonwealth.68
region
County in the northeastern
ton
shall
simply
plainly,
that “elections
-
Washington
Allegheny
state
equal.”69
free and
delegates thus
in the west. These
counties
backdrop
viewed
against
When
spectrum
people
represented
wide
unending
seemingly
intense and
re-
ideological,
reli
political,
with diverse
ideological,
strife
gional,
and sectarian
de-
Id,
yielded
gious .-views.
work
Their
-
above,
bitterly divided
tailed
which,
making the
a- Constitution
while
state,
regions
our
people
various
reforms
the Commonwealths
structural
then
provision must be
-understood
government
by
Republicans,
favored
salutary
by
delegates
effort
the learned
legisla
the-adoption-of a
such as
bicameral
end, once
convention to
and for
the office of chief
ture
creation of
all,
primary
popular
dissatis-
cause
legislation,
with .veto power
executive
over
governance
faction which undermined
principle
preserved
cherished
also
Pennsylvania:
namely,
dilution of
namely,
most
.Constitutionalists —
right of
of this Common-
people
popular
people’s
in which the
elections
govern
to select representatives
wealth
gov-,
representatives
right
elect their
.to
their affairs
on considerations
all,
based
equally
ernment would be
available
lived,
they
would,
intentionally
region
hereinafter,
state which
not be
religious and
béliefs which
political
diminished
laws
discriminated
ment. Minutes
Constitutional Conven-
ratified
1790 Constitution was never
*65
vote; however,
Ours, thus,
con-
by popular
subsequent
of
became the
all
1789 at 377.
tion
language is
in which this
included
language,
stitutions
this
first
and
constitution
utilize
to
Com-
by
people
have
monwealth,
the
Delaware,
been ratified
following
such
our
other states
lead,
language
adopted the
their
same
into
years later in
constitution a mere
1792.
two
Indeed,
expressly
majority
delegates
the
69.
of
other
then have included a
Eleven
states since
rejected
proposal
remove
to
the “and
equal”
"free
constitutions.
and
clause
equal” language
am'end-
from the revised
they
lenge
These
adhered.
historical motivations
legislature
act of the
an
establish
of
undergirded
ing
the
eligibility
framers have
our
qualifications for electors to
Court’s
of
vote in
interpretation
the Free
all
elections
in Philadelphia,
held
Equal
throughout
specifying
Elections
the
Clause
the manner in which those
conducted,
years since its inclusion
our
elections are
Constitu-
recog
be
we
tion.
nized
while our
gives
Constitution
the
Assembly
power
General
pro
the
3.
Law
Case
mulgate
elections,
governing
laws
those
enactments .are
subject to
nonetheless
As one
the
on
Penn-
noted commentator
requirements of the
Equal
Free
sylvania Constitution,
Elec
Buckalew,
Charles
n
tions'
Constitution,
of
and,
Clause
our
himself
delegate
1873 Constitu-
hence, may
by
be
Convention,
our Court
given
“in
opined,
tional
the afore-
invalidated
case of plain;
palpable and clear abuse of
history,
words “free
mentioned
n
power
actually
I,
equal”
infringes
in Article
used
have
Section
electors,”
rights
Patterson,
of
60 Pa. at
a broad and wide sweep:
75
.
They
only
privacy
par-
strike
at
elections,
tiality in
popular
but also
In answering
of
the question
how elec-
corruption, compulsion,
other undue
tions
equal,
must
made
we stated:
]oe
may
influences
which elections
“Clearly by
arrange
shall
laws which
all
assailed;
regulations
of
all
law which the-qualified electors into 'suitable dis-
impair
right
suffrage
shall
of
rather
tricts,
potent
and make their
equally
votes
than
reasonably
facilitate or
direct the
election;
in the
so
some
shall not have
exercise,
of
manner
its
and at all its
others,
more votes than
and that all shall
limitations,
by the
unproclaimed
Consti-
equal
have
filling
share in
offices of
tution, upon
eligibility of
the electors
Thus,
Id.
Commonwealth.”
with this
they
office.
not only
And
exclude
all decision, our Court
that 'any
established
invidious discriminations between indi-
legislative
has the effect'of
scheme'which
electors,
electors,
vidual
of
or classes
but
potency
impermissibly diluting,
of ’an
also
or places
between different sections
individual’s vote for
for elective
candidates
in the State.
office
other voters
.relative
will
to.
guarantee
“free
equal”
violate the
Buckalew,
Charles
An
R.
Examination I,
elections-
Article
Section 5.
afforded
Pennsylvania.
the Constitution
Exhibit-
Bethlehem,
City
See
More in our Court Erfer, spe- the Free and Elections Equal Clause be- cifically challenges held that to the enact- gerrymandering. Al- political cause redistricting plan ment of a congressional though alleged in petitioners that case impermissible po- on claims of predicated plan at may brought redistrieting litical that the issue therein gerrymandering un- I, Therein, I, our der Article we re- violated Article Section Court Section I, argument Article they provided Section had buffed determined' scope application 5 was limited its to interpret reasons for us -our sufficient officials, only elections of Commonwealth provision furnishing constitutional as addi- nothing plain inasmuch was there right to protections tional of the vote be- provision text of this would so limit which yond recognized the United those Likewise, it. our own of the histori- review Supreme conferred States surrounding cal its inclusion circumstances Equal Protection Clause United Constitution, above, in the 1790 discussed (“Peti- id. See at 332 States Constitution. supports interpretation. our persuasive no ar- provide tioners us with should, junc- as 'to at this gument why we
Moreover, rejected Erfer, we the ar- ture, interpret constitution in such a our by Legislative Respon- gument, advanced to vote more right fashion that post-argument filing seeking dents expansive than found guarantee stay of our of January Court’s order constitution.”). Thus, 2018,70that, I, adjudicat- federal we because Article Section 4 of challenge the United confers on the Article Section States Constitution ed 70. See supra note for that The voters’ chal solely equal protection on candidate office.
case federal it, brought both the lenge, under rejected the test grounds, and based *68 Equal and Clause the by plurality Free Elections the such claims articulated for Equal the Pennsylvania Constitution and Court in Supreme United States of the Bandemer, United States supra. Protection Clause the Constitution, alleged require these Er- however, our Court in Importantly, wrongfully equated public petitions ments challenges un- not foreclose did future fer ballots, thereby imposing with more a I, solely resting Section 5 on der Article to stringent vote for their be standard' Indeed, grounds. independent state the casting than that voters bal which counted above, discussed unique historical reasons major party for had to lots candidates I, genesis of Article the Sec- were which meet. straightforward tion and its directive applied constitution- Our Court different equal” shall free and “elections be in claims. In deciding al standards these separate analysis a war- suggests such I, considering rejecting the and Article Equal Free and ranted. Elections can- third-party the claim—that Section equal- to specifically intended Clause was right to be- vote was didates’ diminished in our Common- power ize the voters special requirements these cause process, it explicitly and election wealth’s —our the applied interpretation contrast, guarantee; by the confers this forth Free and Elections Clause set Equal Clause to Equal Protection added Winston, supra, that, because in and ruled years Constitution 78 later United States required major party the statute candi- of the Fourteenth ratification with party dates and third demon- candidates to legal in- Amendment manifest address same level of voter strate the numerical contributing causes equities were which counted, for support votes War, persisted the Civil and which its by fact thát this demonstration was made aftermath, it contains no such unam- and opposed" by petition ballot as did biguous protections. process unequal. By render the election Moreover, prop importantly, and when contrast, adjudicating equal protec- erly presented argument, our claim, tion our the test for Court utilized brought Court entertains claims distinct equal protection an clause articu- violation Free, Equal Elections under and Supreme Court lated States the'United of our Constitution the federal Clause and examined the statute whether served Clause, Equal, adjudi we Protection impermissibly classify voters without a separately, utilizing them relevant cate reasonable basis to do so. In federal standards. Staisey, Shankey v. petition 436 Pa. Given nature of the 257 A.2d (1969), group third-party argument a E-rfer, voters ers’ which was founded challenged Pennsylvania apparent protec a election on their statute belief specified that, indi of Article order for tions Article Section coextensive, for a vote third-party vidual’s were our Court Section candidate therein, office upon, particular a election was to reassess primary not called counted, the Shankey aggre validity of to be use of total number Court’s separate adju gate third-party votes for that standard voters distinct equal legisla dicating had particular office exceed the number claim that a required signatures pro on a electoral nominating involving tive enactment listed Equal to be petition ballot Elections cess violates Free Clause, it, expressly to determine if used and presently disavow reaf- violates Equal enactment the federal Pro- firm with Sharkey accord Thus, reject Clause. tection we Justice particular history of the Equal Free and us, assertion that requires Clause, above, Elections recounted the two Mundos Erfer decisis, principles of stare under subject entirely distinct claims remain adjudicate utilize the same standard separate jurisprudential considerations.71 of violation of Equal claim the Free and
Elections Clause and Equal the federal 4. Other Considerations Dissenting Protection Clause. See Opinion *69 J.) (Mundy, at 834-35. To the extent that In the addition to occasion for the can proposition, adoption of and Equal read that the Free we Elections Erfer Pennsylvania, plication Like interpretation number of other and a their elections 71. go merely recognizing further decision, states than the early In clauses. an the Illi Illinois vote, right provide to and additional inde- and Court, Supreme considering challenge nois a through pendent protections provisions in statute, congressional apportionment to a cit guaranteeing their constitutions their ed to the Illinois Constitution and concluded: Pa, Const, equal." shall be "free elections and election is free where the voters are “[a]n I, specifically, § 5. More art. the constitutions exposed improper no to intimidation or influ of twelve contain additional states election ence and where each voter is allowed to cast charter, requiring clauses identical to our his ballot as his conscience dictates. own equal.” to be “free and These elections twelve equal Elections when the are vote of each Ariz, Const, Arizona, II, other states are: art. equal upon voter influence in its result the Const, 21; 3, Arkansas, 2; § ware, § Ark. art. Dela- every the vote of elector—where other each Const, Ill, 3; Illinois, I, § Del. art.- every ballot is as as other effective ballot.” Const, Const, Ill, 3; Indiana, § art. Ind. art. 526, Bowley, Moran Ill. 179 v. N.E. 1; 6; Oklahoma, § Kentucky, Ky. § Const. (1932). early Const, Const, Similarly, Kentucky in an Ill, 5; Oregon, § Okla. art. Or. involving printed lack of II, decision 1; the ballots Dakota, VI, § art. S.D. South Const art. Const, 19; leaving Tennessee, 5; voters unable T, numerous to exercise § § Tenn. art. Const, franchise, I, 19; high Washington, the § state’s offered Wash. art. court and Const, Wyoming, Wy. § very purpose of art. While elections is to “[t]he few reapportionment challenges, have full, fair, faced state expression free a of the obtain and meaning courts have breathed into these matter, popular may upon will whatever it the unique provisions, few constitutional be, people approval for their to the submitted by way are set of example. forth below which substantial, rejection; any or and when num Specifically, year, Chancery last the Court are, cause, legal any ber of denied voters Delaware, in-depth in an treatment of Dela- vote, right the election the is not and free Constitution, engaged ware's much like that equal, meaning [Kentucky] in the Con-stitution." challenge today, our considered Ingram, Ky. Walbrecht v. family-focused polling places events on (1915). 175 S.W. day parents election which induced stu- Thus, with identical constitutional other states vote, operated impedi- dents to but which provisions applied considered and their have voting by elderly ments to and disabled. variety elections clauses to a of election chal- concluding . In such violated Dela- conduct lenges, important providing protections for Clause, Constitution’s ware Elections their voters. While states whose consti- those provid- court reasoned an which election equal” tutions "free have identical lan- targeted group specific ed a incentives to vote guage to that of Constitution noting equal, neither free was nor histori- have identical issue before addressed regarding integ- concerns in cal Delaware states, today, they, us other have been rity process. Young Clay the election v. Red School, 713, 758, willing invigorate provi- A.3d Consolidated consider (Del. 2017). right similarly, providing equal Ch. sions an citizen, states, citizen, every apt, par Even more Illinois each on other two and Ken- tubky, long regarding ap have representatives. traditions elect their Clause, circumstances in which the Conclusion adopted, mischief to be provision was analysis of the Free above obtained, remedied, object to be plain lan Equal Clause—its Elections above, consequences described guage, its the occasion history, also relevant particular interpretation are which provision and the circumstances ger- Specifically, analysis. partisan in our adopted, interpreting law the case rymandering dilutes the votes those clause, conse and consideration of the party for the prior elections voted who us to interpretation quences our —leads power power give party not in given should be conclude the Clause advantage. lasting placing vot- By electoral governs one which interpretation, broadest preferring party’s ers one candidates aspects process, all of the electoral districts their votes are wasted where provides people this Common or likely (cracking), to lose candidates equally power effective to select wealth where their placing such voters districts choice, representative of his her votes cast for candidates destined to people’s power bars the dilution of the party’s (packing), win non-favored so. do *70 are It is axiomatic that a votes diluted. vote, not an as all equal diluted vote is equal do not to opportunity
voters have an Compliance of B. Measurement into representation. translate their votes I, Article Section healthy repre- This is antithesis of a the question turn the of what We to now Indeed, democracy. sentative for our form to measures be utilized assess a should intended, government operate of as Equal claim the Free dilution under every Pennsylvania each and must voter Pennsylvania of the Con- Elections Clause opportunity have the and equal same free I, 5, nor Article Neither Section stitution. representatives. As our to select his or her Constitution,- any provision of our other illustrated, foregoing has our discussion explicit articulates standards which Commonwealth’s to neutraliz- commitment in of congressional be used the creation ing unfairly impede factors which dilute However, of since the inclusion districts. rights represen- individuals’ their select Equal the Free and Elections Clause of our bitter tatives was borne forebears’ our Constitution certain neutral perni- personal experience suffering the have, matter, general been criteria as a resulting previous cious effects from elec- traditionally guide the formation utilized dis- toral that sanctioned such schemes legislative of our Commonwealth’s districts Furthermore, of adoption crimination. of an indi- prevent order the dilution guards against the interpretation broad representative the vidual’s vote for a unfairly of rendering nugatory, risk votes place Assembly. These standards General artificially entrenching representative greatest creating the emphasis repre- par- power, discouraging voters sentational that both the districts maintain ticipating in electoral process because the of the geographical social cohesion they power have come to believe that the con- people communities in which live and of their vote been diminish- individual has of af- day-to-day duct the majority point ed the “does not count.” A fairs, equal weight to the votes interpretation of accord broad and robust Article of of residents in the various districts against as a each Section 5 serves bulwark of ger- composition consequences partisan determining of the ultimate adverse legislature. rymandering. the state time, of Significantly, involving framers scandals evils wrong people notorious constitution who authored Free and open disgrace to republican Equal Elections also institutions.” Thom Clause included White, Raeburn Commentaries on the mandatory requirement therein for the Constitution (1907). legislature’s formation of state senatorial of Although delegates to that convention counties, covering multiple districts name- not completely practice did eliminate this ly adjoin that the counties one anoth- must through of governance the charter Also, er. the architects that charter they adopted, and which voters subse prohibited expressly any division of quently approved, they in nevertheless Commonwealth, county City or the significant protections against cluded its Philadelphia, such the formation of through explicit occurrence Const, adoption of Thus, § Pa. districts. requirements legis certain which all state preventing the dilution of individual’s thereafter, were, lative districts required of paramount vote was concern to that (1) to meet: population such districts group, august they it is con- evident (2) equal, must be possible; extent maintaining con- geographical sidered the district that is created must be com subdivisions, tiguity political and bar- prised compact contiguous geo ring splitting process in the thereof (3) graphical territory; and the district re districts, creating legislative to afford im- spects existing political boundaries portant safeguards against pernicious therein, subdivisions contained such that prospect. district few of divides as those subdivi eight-plus In the decades after Const, as'possible. Pa. sions art. Constitution became our Commonwealth’s great § 16. Given the concern of dele *71 plan governance, many fundamental of over of gates practice gerrymandering the problems corruption of arose the the recognition of cor by occasioned their the process by in- political special well-heeled on rosive effects our entire democratic groups represen- terest who rendered our through the deliberate dilution of process democracy dysfunctional by tative deeply votes, citizenry’s our the individual focus weakening an power the of individual’s viewed, these factors must be on neutral alia, inter selection, through, vote their then, part by as of effort a the broader backing pro- financial in the electoral delegates to to that convention establish cess, representatives of exclusively who representation best “the methods of se their narrow interests and not served just popular of expression cure the will.” Gedid, of people those the as a whole. Branning Wayne (quoting at 59 Mac supra, by One of the 61-63. methods Veach, the Debates Convention to of process manipulat- which the electoral was Pennsylvania, the Amend Constitution of by groups ed these interest those attain (1873)). I Consequently, at 45 Volume objectives practice gerryman- was the of applicability factors these have broader be popular dering, revulsion of which became setting drawing for the of yond standards driving popu- one of the behind the factors legislative districts for state of electoral for calling lace’s demand of the the 1873 fice.
Constitutional Convention. utility requirements of to pre- these by authority
As an through noted on gerrymandering eminent vent vote dilution law, Pennsylvania by vitality, the as continuing constitutional retains evidenced convention, Constitution, present adopted time of that gerrymandering our charter, regarded requirements basic flagrant as “one of the most In these .-in which geographical area the of were the creation senatorial districts based for but, which, indeed, retained, explained ex- only as not were the individual resides — govern above, prohibits— the voters estab- also panded Article Section for contiguity, lishment the selec- of compactness, of election districts the use of in the state integrity tion their of representatives maintenance of the the bound- Const., of art. Representatives. Pa. political House maintains aries subdivisions §16; electing strength vote an individual’s congressional representative. an When deeply factors are Because these is grouped with other members individual our law of organic rooted Common in a community or her of his wealth, to be and continue the foundational com- purposes voting, for district legislative dis requirements state which monality of interests shared with tricts must meet under community other voters increases Constitution, these we find neutral bench ability of con- the individual elect a particularly marks suitable be for gressional representative the district assessing congres whether measure personal prefer- or her who reflects his districting plan potency sional dilutes This no approach political inures to ences. ability con select an individual's It party’s simply benefit detriment. gressional or her representative his goal of fair achieves constitutional choice, the Free and violates thereby equal our Common- elections all judgment, Equal Elections In our Clause. Finally, these wealth’s voters. standards they are consistent over with the wholly comport, require- also minimum arching the 1790 intent the framers of guaran- congressional districts ments for Constitution individual’s electoral Constitution, .by the teed United States power through any diminished law Supreme interpreted by the United States discriminatorily power dilutes Court, Wesberry Sanders, v. See U.S. and, thus, vote, they are a his or her (1964) 1, 18, S.Ct. L.Ed.2d by which whether .the assess measure objective (holding plain guarantee citizenry our “free and Constitution is to make United. States elections; Article, equal” I promised by equal “equal representation numbers congres selection of Section goal for the House people fundamental representative has sional been violated. *72 Representatives.”). of of is Because the character these factors nature, reasons, fundamentally impartial in of for all these Consequently, the utilization likelihood of the in of as set forth Order reduces our expressly 22, 2018, of congressional January creation districts which adopt we these measures on advantage a any unequal determining confer voter appropriate as whether weight by giving greater congressional redistricting his or her vote plan violates congressional representa the-selection of a of the Elections Free arid Clause Equal I, Therefore, prohibited by as tive Article Section Pennsylvania Constitution. the Thus, objective sub inquiry use of these factors of such an is an part an essential stantially the risk a congressional reduces that voter in a. the examination of whether particular congressional redistricting plan district un will a districts created under of of fairly suffer his power dilution the are: the
or her vote. compact contiguous composed of territory; equal in
Moreover, nearly population impermissibly rather than lessening practicable; of an and which do not divide power individual’s vote- to, town, 5; any rather, county, city, incorporated bor- Section it is sufficient estab- ward, ough, except a township, or lish violation of where this section show .that these necessary popula- of traditional criteria were equality ensure subordinat- to. tion. ed other factors. However, this not the exclusive means ¶ Order, 1/22/19, “Fourth.”72 at I, a by which of violation Article Section 5 recognize 'We factors that other have may be As we established. repeatedly have historically a played drawing role of emphasized throughout discussion, our districts, legislative preserva- as the such objective overarching of provision lines, prior tion of protection district our constitution is to prevent dilution of an incumbents, or po- the maintenance individual’s mandating vote litical balance' existed after the prior of his or power her vote in the selection of I, reapportionment. See, e.g., Holt 38 A.3d representatives equalized great- be However, these factors at we view degree possible all est with Pennsyl- other wholly the neutral subordinate to crite- recognize, then, vania citizens. We of compactness, contiguity, ria minimiza- possibility there exists the that advances in subdivisions,. political the division of tion map drawing technology analytical population equality maintenance of potentially software can allow maprtiakers, among congressional districts. These neu- future, to engineer congressional provide tral criteria of protection a “floor” which, districting maps, although minimal- against
for an individual dilution of his comporting ly these neutral “floor” her vote in such districts. creation criteria, operate nevertheless to unfairly particular power group’s dilute a When, however, that, it is demonstrated congressional vote representative. districts, creation of Trial, 12/13/17, '(Dr. Ñ.T. See 839-42 these neutral been subordi- criteria have discussing concept Warshaw of an effi- nated, in part, whole or in to extraneous ciency gap based on the number “wast- gerrymandering considerations such as minority political ed” votes for the party partisan advantage, political unfair con- particular redistricting plan). under gressional redistricting plan violates Arti- However, may as the case bar be re- I, Section of the Consti- cle solely solved basis consideration that, tution. We note with our consistent degree which neutral criteria prior interpretation of Article Section pursuit parti- were subordinated re Borough see In New Britain School political below) advantage, san as discussed District, supra, not re- this standard does juncture we need at this address quire showing that the of con- creators possibility of such future claims.73' gressional intentionally districts subordi- confident, however, criteria to nated these traditional other We are tech- considerations in creation of the nology employed dis- can also be aid *73 I, expeditious trict in order it to violate Article of development districting Nothing suggest plan might herein is to though 72. intended that show dilution even future congressional' maps redistricting district must not also the neutral criteria were adhered and, law, comply specifical- most with federal "undermines to that there is conclusion” Act, ly, Voting Rights § 52 U.S.C. 10301. Dissenting Opinion a violation in this case. However, J.) (Mundy, as at 835. we state below, dissenting opinion, Mundy aboye, In her Justice as discuss further and we as- inexplicably fully, solely, contends our allowance for of and that sessment those criteria possibility challenge supports to that a a our in this case. conclusion future 818 compelling most Perhaps of drawn evidence
maps, the
which are
boundaries
to neutral criteria.
Dr.
scrupulously
to
adhere
from
concerning the 2011 Plan derives
I,
Indeed,
highlighted
as
in Holt
this Court
expert
testimony. As detailed
Chen’s
technology
development
computer
“the
above,
of 500
Dr. Chen
two sets
created
substantially
appears
allayed
to have
computer-simulated Pennsylvania redis-
initial,
meet-
extraordinary difficulties in”
first
tricting plans, the
of which—Simulat-
760;
I,
ing
Holt
38
such criteria.
A.3d
employed
traditional redis-
ed Set
1—
(noting
see also id. at
since
750
equality,
tricting
population
criteria
allowing
tools
technology
provided
has
compactness, contiguousness,
political-
and
mapmakers
increasingly
to “achieve
‘ideal’
integrity
ie., a
subdivision
simulation
—
districts”)
Gormley, Legislative Re-
(citing
redistricting
potential range
plans
26-27, 45-47); see also
apportionment, at
apply
to
redis-
attempting
the traditional
Cox,
F.Supp.2d
1342
Larios v.
305
Dr.
Set
tricting criteria.
Chen’s Simulated
(N.D.
2004)
recent
in
(“given
advances
Ga.
plans
population equality
achieved
technology,
plans
constitutional
computer
range
Compact-
of Reock
contiguity; had
period
can
short
as one
be crafted
.46,
approximately
ness
from
.31
Scores
views the
day”). As this Court
record
significantly
compact than
which was
more
case,,
computer
the context
.278;
score of
had a
2011 Plan’s
clearly
technology of
this thesis has
range
Compactness
Popper-Polsby
proven.
been
.35,
approximately
.29 to
Scores
Application to the 2011 Plan
C.
significantly
compact than
which was
more
Having established the means
Further,
the 2011 Plan’s score of
his
.164.
which measure a violation Article
we
plans generally split
simulated
between
that measure to
apply
Section we now
municipalities,
12-14 counties and
40-58
so,
clear,
Doing
plain,
Plan.
sharp
great-
far
contrast
the 2011 Plan’s
palpable that
subor
Plan
splits
county
municipality
er
criteria
redistricting
dinates the traditional
words,
splits.
of Dr. Chen’s
In other
all
partisan advantage,
the service
were,
1 plans,
again,
which
Simulated Set
thereby deprives
state
Petitioners
potential range
simulation of the
of redis-
right
equal
constitutional
to free and
elec
tricting plans
apply
the tra-
attempting
Dis
tions.
West
Area School
See
Mifflin
criteria,
redistricting
more
ditional
were
trict,
Indeed,
compel
820 cannot, to 15 advantage between as a that increase that fact that the 2011 Plan matter, In relative to share. plan be a directed .at 24% vote
statistical to statewide words, re redistricting traditional complying disregard with of the other its tradi factors, sufficient establish 2011 quirements redistricting Plan tional Equal the Free and Elections consistently violates accom and works toward Nevertheless, acknowledge the Clause. we power of plishes of the concentration of evidence introduced and, multitude historically-Republiean con voters its showing that de Commonwealth versely, corresponding dilution Peti requirements from’these traditional viation repre power tioners’ chosen to elect'their of, to, effectively works was in service sentatives. partisan Republi advantage unfair Indeed, il analyses these statistical ’ -congressional in future candidates can Kenne lustrated some .Dr. degree and, conversely, Petition dilutes elections dy’s particu 2011 Plan’s discussion repre power congressional for ers’ vote Kennedy, example, explained lars. Dr. represent who Dr. sentatives views. level, that, district-by-district at the explained Chen while his simulated 2011 Plan’s oddities and divi geospatial range up created a plans safe political and their sions subdivisions Republican districts a mean-median effectively wards to establish serve a.few 4%, Plan vote the 2011 creates gap overwhelmingly Democratic districts and a Republican mean- 13 safe districts with majority of large strong, never less but gap of Dr. Chen vote 5.9%. also median likely Republican For theless ex districts. rejected that the 2011 credibly the notion District, ample, Congressional 1st be regard Plan’s outlier status Philadelphia ginning Northeast attempt to an to account attributable River, largely tracking Delaware occa Pennsylvania’s political pro geography, inland, sionally “tentacles” incor reaches or to es congresspersons, tect incumbent Chester, Swarthmore, porating and other majority-African Plan’s tablish historically regions.77 Democratic Contrari Indeed, explicitly American district. he wise, although.the Congressional Dis 3rd redistricting traditional concluded formerly traditionally-Dem trict contained jettisoned in criteria were favor unfair entirety, County Erie in its ocratic gain. testimony Dr. partisan Warshaw’s Congressional 3rd 5th Dis Plan’s similarly 2011 Plan detailed how the constituency, making tricts now divide that only preserves the natural advan modest likely Republican districts both to elect efficiency in favor tage, gap, or vote Additionally, it is notable candidates.78 Republican congressional candidates rela the 2011 Plan’s for Penn accommodation vote share— Republicans’ tive to statewide n sylvania’s congressional loss seat of one historically owes the fact that 12th redrawing took the form Con its Democratic voters tend self-sort into District, 120-mile-long gressional district testified, metropolitan areas which he four Plan, pitted far that abuts until the was “never others two ' percent zero” also creates’ congressmen districts Democratic incumbent —but Notably, congressional three In the 2012 elec the last tions, Congressional elections, District voters the 3rd Congressional 1st voters in the Dis- Republican ’. elected candidate with 57.1% trict elected a candidate with Democratic vote, and, respectively, and 2016, 84.9%, vote, 60.6% 82.8%, respec 82.2% Republican unop ran candidate tively. posed, *76 against one another the next cycle’s in that eventuality, would .we fashion election, primary after which the a-judicial victor plan: remedial to Republican contest lost candidate Second, should Pennsylvania Gen- gleaned general who 51.2% of the election Assembly eral to choose submit a con- geographic idiosyncrasies, vote. These gressional districting plan that satisfies evidentiary shows, record to served the requirements of the Pennsylvania strengthen the votes inclined to voters Constitution, it shall submit plan such Republicans vote for in congressional for consideration by the Governor on or 2018; races and weaken those inclined vote February 9, before If the Gover- for Democrats. nor accepts the Assembly’s General con- gressional. districting plan, it shall be sum, In we conclude that the evidence to this submitted on or before detailed above remaining and the evidence February 15, 2018. of the record aas whole demonstrates Third, should the General'Assembly Petitioners have established that the 2011 not a congressional submit districting Plan subordinates the traditional redis- plan February on or 9, 2018, before or tricting criteria in achieving service of un- should the not approve Governor and, partisan advantage, thus, fair violates Assembly’s General plan on or before (cid:127) Equal Free and Elections Clause of February 15, 2018, this Court pro- shall Constitution. Such a expeditiously adopt plan ceed based plan, achieving at partisan aimed unfair on the evidentiary developed in recorcf gain, undermines ability voters’ to exercise In anticipa- Court. Commonwealth right their “equal” vote in free and tion of parties that eventuality, shall ,the elections if interpreted the term is to be heard; wit, have the opportunity be. any way. credible parties all may intervenors submit to, extensive, An corrupted by election so- proposed the Court remedial district- phisticated gerrymandering partisan ing February plans 15, on or before dilution of votes equal.” is not In “free 2018. circumstances, such “power, or mili- civil ¶¶ 1/22/18, Order, at “Second” and “Third.” wit, tary,” to Assembly, has in General As to preferred the initial and prevent fact “interfere[d] free exer- path legislative action, and executive we Const, right cise of suffrage.” Pa. primary note that responsibility and 1, § art. authority for drawing congression federal al legislative squarely districts rests Remedy
VI. Const, legislature. the state See U.S. art. Having 4; Butcher, why § set forth the 2011 (“[W]e Plan is 216 con A.2d 458 infirm, constitutionally turn to our we Jan- sidered it appropriate Legislature, that the 22, uary 2018 Order which a rem- organ government directed primary with the edy Therein, illegal plan. our Court responsibility for the task of reappprtion initially ment, invited our sister branches —the opportuni be afforded additional legislative and ty executive branches —to take reapportion enact constitutional action, through the Emison, enactment of a plan.”); remedi- ment Growe v. U.S. 507 however, 34, 1075, al districting plan; 25, 113 S.Ct. 122 L.Ed.2d recognizing possibility legisla- (1993) that the (stating “the Constitution ture and executive unwilling would primary responsibil leaves with States act, unable to we indicated in ity apportionment of Order federal our. con- districts”); all contingency, which afforded legislative state crafted gressional and full and fair parties U.S. Intervenors a Lipscomb, v. Wise (1978); Reyn opportunity proposed remedial 57 L.Ed.2d submit S.Ct. Thus, consideration, olds, with- plans for our was well U.S. S.Ct. tenet, but recognizing authority, supported by this foundational iil judicial our n constitutionally considering both the also only our and statutes Constitution districting plan above, infirm and the imminent noted but Commonwealth and *77 2018, for we approaching primary elections federal well similar reme- precedent, sister enact requested these branches high by the courts of other provided dies districting legislation regarding a new acting states when their sister branches approxi to plan, providing a deadline do so fail remedy plan. an unconstitutional to mately from of our the three weeks date balancing of the Perhaps clearest the Indeed, legislature if execu Order. the legislature’s primary districting role timely plan sub tive enact a remedial against obligation .to the court’s ultimate Court, mit it to our role this matter our plan forth constitutional was set ensure a concludes, unless and until the constitu matter, in our Butcher. In decision tionality plan challenged. of is the new Court, concluding our after a constitution- ally redistricting of
When, however, infirm of houses both legislature Assembly act, in an im- General resulted is unable or not to it becomes chooses vote, pairment right of our citizens’ to judiciary’s appro role to determine the found allow prudent legislature to redistricting plan. Specifically, priate while opportunity legal additional enact a re- presumption statutes cloaked with' Butcher, at plan. medial 216 A.2d 457-58. duty it is constitutionality, this Yet, Court, clear failure to we also made that a government, as a co-equal branch act declare, by Assembly by a the General date appropriate, certain acts when Indeed, judicial certain result action “to would unconstitutional. matters concern of this voters proper ensure individual ing interpretation applica their constitu- are afforded organic tion of our char Commonwealth Commonwealth’s equally weighted tional to cast an right are at day ter the end of for vote.” II, Id. at 458-59. After the deadline only Pap’s Court—and this Court. 812 passed required enactment of the without (noting Supreme at A.2d Court has relief, statute, fashioned af- we affirmative meaning Pennsylvania final word on Constitution). ter Further, proposals by the submission possess our Court parties. Id. at 459. Our this mat- Order authority meaningful es broad to craft ter, above, V, entirely is consistent with cited required. remedies Pa. art. when Const. our in Butcher. 1, 2, 10;. remedy also Mellow v. §§ § See (granting 42 Pa.C.S. 44, Mitchell, 204, 205-06 530 Pa. 607 A.2d power to “enter a final order or otherwise (1992) leg- done”). (designating master in right wake justice cause redistricting remedy islative failure Thus, as preferable an alternative Rep- seats for the House of creating legislative route for a remedial which was held to be resentatives unconsti- Order, redistricting plan, in our we consid- tutional). legislature possibility ered upon Our also agree legislation approach by, not buttressed Governor would thus, and, with, plan, States providing entirely a remedial United consistent Supreme ruling landmark in Baker prospect judicially- allowed for the Court’s we Carr, v. narrowly Our 369 U.S. imposed plan. remedial S.Ct. (1962), only by L.Ed.2d 663 not recognized and more recent deci been this Court Supreme sions States United appropriate but action the States in judi Court which make concrete state such cases has specifically been encour- ciary’s ability formulate a redistricting aged. See, Growe; necessary. e.g., when plan, Scott, (quoting Id. 381 U.S. Germano, v.
Scott
381 U.S.
85 S.Ct.
1525)
added).
(emphasis
S.Ct.
1525, 14
(1965)
curiam).
(per
L.Ed.2d 477
high
Wise,
As
Court in
described
Thus, the Growe Court made clear the
“Legislative bodies
not leave
should
important
judiciary
role
the state
reapportionment
tasks
the federal
ensuring
schemes,
reapportionment
valid
courts; but
legislative
when
re
those
only
not
through an
assessment
consti-
sponsibilities
respond,
do
the immi
tutionality,
through
but also
the enactment
nence of a state
it impracti
election makes
legislative redistricting
of valid
plans. Pur-
so,
cal
them to do
it becomes the
Growe, therefore,
although
suant
obligation,’
Finch,
‘unwelcome
Connor v.
*78
legislature
responsibility
has initial
to act
407, 415,
1828,
431 U.S.
97 S.Ct.
52
[
matters,
in redistricting
responsibility
that
(1977)],
L.Ed.2d 465
of the federal court
shift to
if
judiciary
can
a
state
state
to
a
impose
reapportionment
devise and
legislature
act,
unwilling
is unable or
to
pending
legislative
plan
later
action.”
to
only
and then
judiciary
the federal
once
Wise,
540,
98
437 U.S.
S.Ct. 2493. The
legislature
judiciary
the state
or state
have
authority to
is
same
act
inherent
remedy
to
a
not undertaken
constitutional-
judiciary.
state
infirm plan.
ly
Growe,
Specifically, in
the United States
Finally, virtually every other state that
Supreme Court was faced with the
issue
looked,
has
the issue
when nec-
considered
jurisdiction
concurrent
between a federal
essary,
judiciary
to the
to
state
exercise
district court
judiciary
the Minnesota
and
power to
remedy
its
craft an affirmative
regarding
legislative
Minnesota’s state
and
reapportionment
and formulate
valid
congressional
high
federal
The
districts.
See, e.g.,
rel.
plan.
People ex
Salazar v.
Court, in a
decision
unanimous
authored
(Colo.
Davidson,
1221,
2003)
1229
79 P.3d
by
Scalia, specifically recognized
Justice
(offering, in addressing the issue of how
role of
judiciary
crafting
the state
frequently
can
con-
legislature
draw
context,
reapportionment
relief: “In the
districts,
gressional
that United States Su-
required
judges
the Court has
federal
to
preme
clear that states have the
Court is
disputes
[to]
defer
consideration
involv-
responsibility
primary
re-
ing
State,
redistricting
through
where
districting,
that
courts
federal
must
branch,
legislative
judicial
begun
its
or
has
states,
courts,
including
to
defer
state
highly
to address that
political task itself.”
especially
turning
on state con-
Growe,
matters
33,
require reapportionment supervision valid or to state for- redistricting plan Supreme mulate a valid that the Court has has United States 824 Butterworth, in such priate action cases Brown States v.
encouraged); 688-89, 2002) (D.C. 683, App. encouraged!’ Fla specifically has been So.2d power “[rjeason of state (emphasizing argue constitutional experience both require judiciary reapportion valid appor empowered to invalidate courts Bartlett, ment); Stephenson v. 355 N.C. transgresses tionment statute con (2002) 377, (noting S.E.2d left cannot be without stitutional mandates only Supreme Court of that it North relief.”); appropriate the means order that can state Carolina answer constitu Elections, v. Board Jensen Wisconsin questions finality, and tional 639 N.W.2d Wis.2d redistricting the context of “within state (2002) curiam) (noting (per deference disputes, is well reapportionment regarding courts “consideration of federal ‘power judiciary within disputes involving redistricting where the to, or require reapportionment State valid State, judicial through legislative its formulate, redistricting plan’” valid branch, begun highly has address that Germano, 409, 85 (quoting 381 U.S. “any itself’ political task redis 1525)); Fallin, 262 v. P.3d S.Ct. Wilson plan by a tricting judicially ‘enacted’ state 2011) (Okla. (holding that three (just like one a state court enacted Carr, Baker after v. the United decades legislature) to presump would be entitled Supreme Court in was clear States Growe legal tive effect full-faith-and-credit fed jurisdiction may state courts exercise Branch, court.”); v. but see eral Mauldin redistricting that fed legislative over (Miss. 2003) (finding, 866 So.2d under should action courts defer state eral statute, Mississippi Mississippi no court *79 redistricting by questions of state over jurisdiction plans congres had draw courts); legislatures Alex and state state districting). sional (Okla. 1204, 1208. Taylor, v. ander 51 P.3d Thus, beyond peradventure is that it 2002) (“It is clear us that and [Baker instance, legislature, first is Growe], proposition ... stand primarily charged the task of reap is with 1, § 4 not federal Art. does either prevent However, portionment. resolving redistricting or courts state Constitution, law, our statutory Court’s de case.”); proper disputes in a Bone Shirt v. cisions, precedent, federal case law (S.D. 2005) Hazeltine, 746, 755 700 N.W.2d states, serve a from our sister all bed J., (Konenkamp, concurring) (opining that power Supreme Court judiciary recognized a State “[t]he re thority of rock foundation state judiciary stands formulate a au- redistricting plan necessary. valid reapportionment to formu when quire valid or Order, only prior Opinion, redistricting plan has Our late a valid this entirely but recognized appro authority.79 been this Court consistent such dissent, misguid- Mundy, seemingly in her our 79. Justice Commonwealth’s Constitution directly contrary a vacu- Elections Clause in ed to bedrock notions of reads federal and, um, suggests our she federalism embraced in federal extent that Constitu- tion, inability, severely ability, respect for or evinces circumscribed a lack state sum, above, rights. generally, fully In forth courts or Court sub set state our and as act, judies, light interpretations has not been Elections approach Clause suggested by encourage United States like found in embraced Growe—which Pennsylvania Supreme redistricting Supreme Court or federal courts to to state defer Indeed, efforts, including congressional century. redistricting, for over a half to read permit way expressly judicial federal in a creation of Constitution that limits legislature redistricting maps power remedy its violations of a fails to our Court in when concurring a Justice Baer files Conclusion VII. dissenting opinion. reasons,
For all of these Court en- January its tered Order strik- files Chief Congressional Saylor dissenting Justice
ing unconstitutional Redistricting setting Act of forth opinion in Mundy joins. which Justice assuring process that' remedial redis- tricting plan place in time for would dissenting Justice Mundy opinion. files Primary Elections. A Donohue, Appendix Dougherty
Justices and Wecht opinion. join *80 First of graph January the Court’s 22nd AND DISSENTING
CONCURRING Moreover, Order. I Major concur the OPINION ity’s I, explication erudite of Article Sec JUSTICE BAER tion of Pennsylvania the Constitution Pa, (the Clause), Equal Free and Election I respectfully response offer this the Const, I, 5,1§ art. Court’s and the ultimate opinion of its of support Court’s in order conclusion that the 2011 Plan violates the Order). January (January 22nd I rights protected by provision. that join Majority’s continue conclusion the Pennsylvania Congressional that the For Re the explained reasons below and Plan) (2011 districting Act of 2011 violates similar to by concerns expressed Chief Constitution, original Saylor the as Justice Mundy, Justice I and di- forth ly verge set in the sentence of first Para from the I Majority, which read and, jurisprudential safeguards principally, act—as well as cepts eral Voting essential con- the federalism, comity beyond Act). of and it is Rights peradventure possess that courts the au- state thority grant equitable remedies for consti- Equal Free 1. The Election Clause is set violations, including drawing of tutional forth in full at 827. infra course, (of subject congressional maps to fed- rights parties of the as well court-designated process criteria at bar impose districting I, nevertheless, parties, as Legislature. con- other interested foments on the unnecessary confusion in elec the current Equal Pennsylvania’s Free clude cycle.5 tion protects Pennsylvanians’ Election Clause right resulting to vote from dilution First, my I address concerns with the partisan gerrymandering. As elu- extreme of compliance” discussion “measurement infra, I would hold extreme cidated B, interpret forth Part which I set in V. when, in gerrymandering occurs partisan Legislature for dictating criteria districting plan, partisan the creation of a I, redistricting. utilize Article Section 4 over other predominate considerations all unambig- of United States Constitution districting relevant to the valid criteria uously provides legislatures state with the voting community and result the dilution authority responsibility regulating for particular vote.2 group’s of a of Representa- election Senators sub- Congress, tives to the United States dissenting- In the other conformity with Specif- ject any by Congress. enactment justices, additionally I dissent from the I, ically, 4 provides: Article Section Opinion Majority support portions Times, of hold- Places and Manner January 22nd ing the of the remainder ing Repre- for Senators and Elections Order, enjoin use the 2011 sentatives, prescribed shall be each cycle and set Plan the 2018 election thereof; by Legislature but State forth a new procedure implementing may any Congress time Law make my In map May primary.3 for the Regulations, except as alter such view, below, the rem explained Court’s [choosing] Places Senators. separation edy powers threatens I, Const, I, Article Section § dictated Recently, the Unit- U.S. art. by failing to Constitution4 Supreme United States ed Court concluded that States time to designated allow our sister branches sufficient “legislature” Section congressional districting only legislative as- legislate the state new includes legislative peo- map,. potentially impinges upon the due also acts sembly but Majority’s argument precise, I Petitioners' Free and 5.To concur Equal appears to Elections Clause be tethered comprehensive background recitation of the Plan to their claim the 2011 violates the I, description Part this case in Pennsylva- equal protection guarantees of the II, summary in Part Part action Ill’s Sec- provided nia Article Constitution thorough proceedings in the Commonwealth said, being tions 1 26. That is clear including findings and con- factual allege Petitioners a violation the Free and Brobson, Judge clusions of law and the Clause, thus, Equal Elections such claim parties’ argu- presentation *81 of and amici’s Accordingly, is before the I offer this Court. said, with ments in Part IV. As I concur the opinion Majority’s analysis response in the to analysis Equal Majority’s of Free and the of that clause. dissent, in Part I howev- Election Clause V. A. apply finding As I the er, B, 3. would not of uncon requiring Part V. I view as from which stitutionality May primary, I the con to Legislature specified districting the to utilize January Paragraph cur in of Sixth the Court’s drafting redistricting map, in criteria allowing special 22nd Order March 2018 the only holding in the V. C concur of Part Pennsylvania’s Congressional election in 18th Finally, the 2011 Plan is unconstitutional. I District to be held under the Plan. VI, remedy provided the in Part dissent to 4. Article Section 4 the States of United part Constitution set forth in is relevant infra at 826. through
pie prevent to their state to referenda amend interfere the free of exercise constitutions, provisions right suffrage. as for inde- the of such congression- pendent commissions to draw I, § Const, art. This language obvi- Pa. 5. al districts. election ously does not address of shape the size or Moreover, districts. nothing there is inher- Legislature State v. Arizona Arizona — in compact contiguous ent or district that Comm’n, Redistricting Indep. U.S. election, equal insures a free and is as -, 2652, 2659, 192 135 S.Ct. L.Ed.2d 704 by of evidenced claims unconstitutional (2015). “legisla of Section 4’s use the term gerrymandering in challenges raised re- to however, ture,” encompass clearly does not of districting plans other states which em- branch, thus, judicial the lack courts in ploy maps compliance created with the “times, authority prescribe the to the districting traditional compact criteria of congres places, holding” and manner contiguous territory, equality of popu- sional elections. lation, minimization of municipal line Opinion, by Majority As reiterated the See, e.g., Gill, division. v. Whitford January 22nd indicated this Court’s Order (W.D. 2016). F.Supp.3d 837 Wis. following: I Accordingly, unwilling am engraft Order, comply any con- [T]o with this Pennsylvania into the Constitution criteria gressional districting plan shall consist drawing congressional for districts congressional composed of of: districts when framers chose not to include territory; as compact contiguous provisions despite such be- unquestionably equal practica- nearly population in ing Assembly’s aware both General ble; any county, and which do not divide for responsibility redistrict- town, city, incorporated borough, town- ing dangers of It gerrymandering. and the ward, necessary or ship, except where is not this role Court’s to instruct equality of population. ensure Legislature holding “manner ¶ Order, January 22nd The Ma “Fourth.” elections,” including weight relative ably adop jority history traces the districting criteria. nearly by tion of identical criteria I agree Majority’s nonetheless framers Constitution holding Equal that the Free and Election repre purposes for state senatorial and against protects Clause the dilution II, § Const, districts. Pa. 16. sentative art. votes “a vote is not an because diluted Indeed, incorporat the language was also Moreover, equal adopt Id. at vote.” I regard districts. municipal ed election explanation Majority’s of how extreme IX, § Const, art. Pa. partisan gerrymandering “dilutes the votes legislative In contrast to the state prior who elections those voted districts, municipal si- Constitution party power give party regard applied lent in to be the criteria lasting ... power advantage electoral Legislature congres- establishing [b]y placing preferring voters one party’s sional districts for Representatives candidates in districts their votes where designated Congress. States United likely lose are wasted on candidates are also notably criteria absent (cracking), placing such voters Clause, Equal Free and Election districts where votes cast *82 elegant simplicity, provides with as follows: Maj. (packing).” candidates destined win Accordingly, I the equal; Op. shall be free and no at 814. concur with Elections and any holding civil that cor- power, military, Majority’s shall at time election “[a]n extensive, districting re- rupted by sophisticated gerry- “substantially tional criteria mandering particular dilution of in partisan is a voter a and votes duces the risk that Maj. not Op. “free equal.” congressional-- and 820. will unfairly district suffer Therefore, I conclude that Free the and her of power the dilution of the his or Id, by of Equal use violated Clause .the vote.” is partisan by gerrymandering the extreme n however, view, of I do not utilization Legislature it because con- and Governor criteria dispositive traditional as districting by a stitutes interference unconstitutional map fail every redistricting may in case. A civil prevent “to of power the free exercise satisfy all the traditional criteria through dilu- right suffrage” vote pass muster under yet constitutional I, § 5.6 Cpnst, tion. Pa. art. Clause, Free Equal Election such n challenge, congres- To evaluate a a a compact a is less due to where district I that districting plan, sional would hold a Similarly, dispersed community of interest. burden, challenger prove that has the be districting traditional criteria could sat- clearly, palpably plan plainly, .and vio- yet totality particular in isfied a case and a Equal'Election lates the Free Clause still that evidence could demonstrate by demonstrating that the plan resulted in partisan predominated considerations partisan gerrymandering, from extreme drawing map as a result v, Commonwealth, Stilp Pa. partisan gerrymandering. extreme
A,2d (2006) (holding “legis- that a not here, will be deemed uncon- petitioner lative As enactment occurred es- may clearly, palpably, unless pre- stitutional partisan tablish that considerations Constitution”). I pro- plainly drawing violates the map by, in the dominated partisan gerrymander- pose alia, extreme introducing expert that inter analysis and turn, proven can, ing in evidence adopted map testimony that statis- predominated considerations that partisan tical maps outlier in contrast other districting over valid criteria all other utilizing rele- districting traditional crite- drawn community voting resulted vant adopted map ria particular group’s vote. the dilution product districting legitimate of other con- to protect siderations such the need recognize fully I as. devel- further or promote communities of interest other establishing oped the absence record voting community. interests to the relevant districting criteria is indicative traditional The extensive statistical evidence outlined gerrymandering for partisan of extreme by Judge Brobsoh in the detail Com- explained by dilution. As purposes of vote monwealth Court and recounted because traditional district- Majority, Majority Opinion demonstrates “fundamentally impartial in ing criteria are partisan Plan resulted from extreme nature, utilization reduces the likeli- and, fact, gerrymandering of congressional creation dis- establishes hood map that this any gerryman- is one of the most confer ah un- voter tricts which basis, dered On this giving nation. equal advantage by his or her Petition- vote clearly, ers greater weight plainly in the selection of a con- the case at bar gressional partisan representative prohibited by palpably demonstrated that con- Maj. atOp. predominated 5.” siderations over other rele- Article Section Moreover, agree districting I that the in the drawing use tradi- vant criteria n 'i I’agree Majority Pennsylva- requirements with the set forth the federal Con- statutory nia’s meet stitution districts also and related enactments. must *83 2011 Plan and map spanned the resulted eight extreme the at least .months. (cid:127) Maj. partisan gerrymandering Op. violation of at 743.
Pennsylvania’s
Equal
Free and
Election
Rather than providing the General As-
Clause.
sembly
opportunity
a reasonable
to create
map
pass legislation
it,
a
to adopt
the
I join the
conclusion that
As
Court’s
the
Majority
steps
has taken
in preparation
2011 Plan violates the
Con
“possible eventuality”
for the
that
Leg-
the
Clause,
stitution’s Free
Election
Equal
islature
in this compressed
act
cannot
time
provided
I
remedy
turn
the
next
the
Order,
frame.
objection
the
1/26/18. Over
Order,
Majority
January 22nd
the
as
Mundy’s dissent,
forth in
set
Justice
the
in Part
Majority Opin
of the
explained
VI
Majority posits
courts
state
have the
that
ion. For the
in my
reasons set forth
con
authority
United
Supreme
under
States
curring
dissenting
statement
to the
precedent
.Court
“to devise
impose a
Order,
January
object
22nd
I
the devel
reapportionment pjan pending
legis-
later
opment
redistricting plan
of new
for
a
the
lative
legislative
action” when the
bodies
cycle. I
suggest
2018 election
continue to
fail
act or when “the
of a
imminence
respectfully that the Court reconsider its
it impractical
state
election makes
[the
given
decision
the
uncertainty,
substantial
legislature]
Maj,
to do so.”
Op. at 823
chaos,
outright
currently
if not
unfolding (internal
omitted).
citations
After review-
regarding
in this Commonwealth
the im
ing precedent from our sister states and
elections, in
pending
likely
to the
addition
courts, Majority opines
the federal
that
delays
further
that will result from the
precedent
“as a
serves
bedrock founda-
continuing litigation
and,
this Court
before
authority
tion on which
stands
States Supreme
United
potentially,
judiciary
state
to formulate a valid redis-
Court,
map-drawing
as well
from the
as
tricting plan
necessary.”
when
Id. at 824.
litigation
process
process and the
that
will
Respectfully,
pres-
the circumstances
inevitably engender.
“necessary”
ent
not
it
do
make
for this
redistricting plan
Court to formulate a
Majority correctly
observes that'“it
Instead,
impending
elections.
beyond
is
it is
peradventure
legis-
unambiguous grant
redistricting
author-
lature,
instance,
in the first
primari-
is
ity
legislature
the state
under Article
charged
ly
with the
task
reapportion-
4 of the
Constitution man-
Federal
Section
Maj. Op.
Unfortunately,
ment.”
at 824.
judicial
legisla-
dates
to allow a
restraint
Legislature
not
fair opportuni-
does
have
time,
period
ture a reasonable
which
ty
act “in
instance”
first
where it
months
should be
rather than
measured
has less than
to develop
three weeks
weeks,
following
redistrict
determina-
plan.
Legislature
that the
While
true
court,
unconstitutionality by
tion
technically
the 2011 Plan
two
enacted
preferably
legisla-
provide
would
weeks, it is
legisla-
naive
think
understanding of
tive bodies with a clear
map
period
tors created the
that short
original, plan’s
nature
unconsti-
time,
opposed
developing
as
and ne-
tutionality.
map
of .
gotiating
prior
details
over
fact, Majority
present
In
months.
observes
This case
a situation
does
Legislature
hearings
go
began
on the
where the election cannot
forward un
dis-
tricting map
May of
such as
early
presumably
der the current map,
be-
provided
if
for more
passage
plan
fore
December
the 2011
occur
would
could,
Plan, suggesting
development
representatives
that the
be seated in
than
*84
Order,
Indeed,
26th
map
by
January
the
to
current
has merited
Congress.
the
concurring
dissenting
I
a
filed
and
cycles,
which
for
utilized
three election
been
Majority
asserts that
it
statement.8
Majority
employed
to be
allowing
is
it
the
Intervenors a
parties
has afforded all
special election for
again
upcoming
in the
pro
fair
to
opportunity
“full and
submit
therefore,
is,
District. It
unneces
18th
the
for our
posed remedial
consider
plans
prior
to act
to the 2018 elections.
sary
agree
Maj. Op.
ation.”
do
at 822.1
impose
of its
to
support
In
a
decision
map
allowing
to
a
parties
comports
submit
judicially
map in the event that
created
process
ability
with
absent
to
due
plan by
fail
a
our sister branches
to enact
respond
plans, potentially by
to alternative
15th,
February
my colleagues
rely
further
submitting
or cross-
additional evidence
in Butcher v.
this Court’s decision
upon
Moreover,
examining
the Ma
witnesses.
(1966).
Bloom,
305,
In
420 Pa.
DISSENTING OPINION
1769, 1785,
(2004)
158
546
S.Ct.
L.Ed.2d
(plurality) (expressing agreement with
CHIEF
JUSTICE SAYLOR
dissenting
partisan
Justice that severe
incorporate by
I
my dissenting
reference
are
gerrymanders
inconsistent with demo
22,
statement
of January
the Order
principles
may
cratic
violate the
2018, per which the majority invalidated
Clause,
Equal Protection
albeit maintain
Pennsylvania’s
congressional
current
dis-
ing
incapable
the judiciary
is
of de
tricting
In summary,
scheme.
I believe
vising manageable
standards
the as
that:
present
extraordinary
exercise of
degree).
sessments
jurisdiction
improvident;
this Court’s
anticipated
Supreme
review would benefit
from
States
United
guidance
however,
from the Supreme Court of
has also emphasized,
that redis
States;
United
awaiting
guidance
tricting
such
is
is
political
committed
particularly appropriate given
delay,
branch
inherently political.1
and is
In this
Vieth,
274-77,
generally
1. See
plan,
541 U.S. at
cal bodies devise a district
and some
intent”);
(discussing
history
S.Ct. at 1774-76
effect results from the
id.
J.)
political gerrymandering
(Breyer,
(explaining
"po
United
S.Ct. at 1823
States);
("The
id. at
likely play
I
rules
do
the character of redistrict
may
legitimate in
be
certain contexts. But
ing,
separation-of-powers
and concomitant
are,
nature,
they
by their
vulnerable
concerns,
special
warrant
caution on the
See, e.g.,
of illegitimacy.
claims
Dickerson
part of
judiciary
regula
in considering
States,
428, 465,
v. United
U.S.
generally
tion and
See
intervention.
Colo.
2326, 2348,
(2000)
S.Ct.
L.Ed.2d 405
Salazar,
Assembly
Gen.
v.
541 U.S.
(Scalia, J., dissenting)
(depicting prophy-
1095, 124
2229,159
S.Ct.
L.Ed.2d
imposed by
Supreme
rule
lactic
(2004)
C.J.,
(Rehnquist,
dissenting from
an example
the United States
certiorari)
(observing,
denial of
in the con
“judicial' overreaching”). The consideration
of a
supreme
text
court’s
state
broad in
sort of rule should
whether
judiciary
sertion
into the, redistrict
upon
process
imposed
judiciary
“words,
ing process, that the constitutional
by the
Constitution to
committed
federal
prescribed
‘shall be
each State
of government
another branch
seems to
Legislature
operate
thereof
as a limitation
require particular
me to
caution and re-
in original)),
on the
In
(emphasis
State”
Vieth,
Accord
straint.
641 U.S.
deed,
Kennedy
Supreme
as Justice
(discussing
S.Ct. at 1789
the drawbacks of
opined:
Court of the
has
“A
United States
judiciary
districting,”
“insertion
into
ordering
decision
correction
all elec
including
delay
uncertainty
“the
[it]
tion district
partisan
drawn for
rea
lines
brings
political process
par-
to the
and the
sons would commit federal and state
courts”);
*87
enmity it brings
tisan
the
upon
unprecedented
courts to.
intervention
291;
(alluding
id.
124
to
at
S.Ct. at
the
1784
process[,]”
political
the
yielding
American
in “meaningfully constrain[ing]
interests
into
“substantial intrusion
the Nation’s
courts,
po
and to
the discretion of the
win
Vieth,
U,S.
306,
litical life.”
541
at
acceptance
public
for the
intrusion
courts’
(Kennedy, J.,
S.Ct. at 1792-93
very
into a
that is
concur
process
foundation
the
decisionmaking”).
ring).
of democratic
4
districting
they
lack relevance
Holt decision
fail
criteria
would
the
re-
under
new
there,
My
since,
gime
claims of
imposed by
to the
concern is
majority,
discrimination.
the
majority rigidi-
the manner in which the
challengers
the
the
Court found that
had not
congressional
ties these factors
the
redis-
reapportionment
established
plan
that a
en-
tricting context.
compassing
political-subdivision
numerous
II,
regard,
majority’s
splits
In this
the
standard would
Article
violated
Section 16 of the
Holt,
operate
stringently
seem to
more
than that
Constitution. See
620 Pa.
themselves,
by
suggested
urge
who
(explaining
Petitioners
at
From sufficiently presents too exigency fails to account ceed with extreme opinion redistricting, its character on the great fundamental of an delibera- impingement Consti- allocation United States under the judg- process allow for considered tive branch, political and the tution to polit- my part complex in this ment constitutionalizing a many drawbacks of area ically-charged of the law. my part, For own judicial non-textual rule. I Finally, remedy, disapprove as to the previous by I Court’s de- would abide map imposition judicially-drawn of a termination, redistricting setting, Furthermore, above reasons. Equal the Free and Elections Clause per length, Baer Justice discusses greater no than provides protection inviting Legislature Order curiam Clauses, Equal charter’s Protection state Pennsylvania’s congressional dis- redraw have coterminous with been deemed guid- provided little time and very tricts protection provided the United enterprise. Concurring ance See v. Common- Constitution. See States Erfer (Baer, Dissenting Opinion, at 828-31 wealth, 138-39, A.2d 568 Pa. J.). judicial I Although dispute do (2002). majority’s I find that the focus may appropri- possibly be intervention range districting on a limited of traditional is ate —where constitutional violation es- factors allocates too much discretion application clear tablished based on the violations the ab-
judiciary, discern dis- pertaining standards intentional proof sence intentional discrimination. voting power, crimination and dilution Instead, I believe the state under Legislature adequately been has charters, belongs to federal the discretion being required apprised what is Legislature, which 'accorded should comply— afforded time sufficient comity, as appropriate deference and re- I regrettably, simply submit that majority’s in the initial articulation flected happened has not what here. constitutionality presumption challengers. heavy burden borne *88 Mundy joins dissenting Justice this Majority Opinion, at 801. See opinion. in my previous dissenting As I said statement, I the recom- appreciate that DISSENTING OPINION findings Judge mended Brobson factual MUNDY JUSTICE suggest of the Court that Commonwealth the respectfully Today I Ma- dissent. may Court with a scenario the be faced Pennsylvania that the jority announces involving partisan gerrymander- extreme Act Congressional Redistricting of 2011 ing. present process ordinary the an Were clearly, plainly violates palpably the one, to sift proceed I deliberative would on the Pennsylvania Constitution basis through array the standards to potential Equal See the Free and Elections Clause. if there I determine which could one Const, I, § 5. The generally Pa. art. claim manageable. judicially conclude would be is not that were unable to here voters 292, Vieth, at generally See 541 U.S. 124 vote, power their that the cast but rather that, among (observing at S.Ct. 1784 diluted, of the thus individual voters was expressions dissenting of the four Justices electing Vieth, preventing them from candidates in three different standards had however, concedes, my Majority In choice. emerged). judgment, wealth, n.4, (2002). 128, 325, 568 A.2d 334 n.4 Pa. 794 5, any Op. nor at 815. vague judicially-created Article Section “[n]either These Constitution, provision artic- other of our “neutral criteria” now guideposts explicit which against ulates standards are to be which congressional all future re- congressional in the evaluated, used creation of dis- districting maps will with Nevertheless, Majority Op. tricts.” at 814. this Court final as the arbiter of what Majority holds that “certain neutral partisan constitutes too influence. Id. drawing to criteria” are be utilized this Common- districts In regard, Majority this acknowl- Id.
wealth. criteria”, edges that these “neutral only Commonwealth, In v. 568 Pa. Erfer floor. Majority establish constitutional (2002), gerryman- partisan 794 A.2d Op. However, at 816. the Majority admits case, dering rejected “[peti- this Court possible for the General Assem- Pennsylvania claim that Con- tioners’ bly fully to a map complies draw with equal stitution’s free elections clause Majority’s criteria” “neutral but still to provides protection right further to “operate[s] -unfairly power dilute the Equal than Protection vote does the particular congression- for á group’s vote Clause.” Id. at 332. The further representative.” al Id. This under- petitioners noted that had failed clear, mines the conclusion that there is a should, “why junc- us at this persuade we plain, palpable constitutional violation ture, interpret such a our constitution case. right fashion -that to vote is more guarantee than found expansive my As explained January I. Despite the fact constitution.”
federal
Id.
Statement, I
Dissenting,
grave
also have
Equal
Free and
established the
Majority’s remedy.
I
Erfer
concerns about
provide any
Elections Clause did
agree
Majority
we have the
Pennsylvania
heightened protections
authority
legislative
to direct the
and exec-
voters,
Majority
provide legal
fails
government
branches of our
utive
draw
justification
Erfer,
for its
disapproval
maps
any
violation
remedy
new
of law.
citing
Shankey
Staisey,
v.
other than
However,
I am
Majority’s
troubled
(1969),
pre-
Pa.
which
Recognizing that the Con- *89 Bloom, 438, 415 Pa. generally Butcher v. explicit does not stan- stitution articulate 556, (1964). I 203 A.2d further share 568 to be creation of con- dards used the by dissenting the concerns the expressed districts, gressional Majority the fashions (cid:127) Saylor of and the “(1) opinion Chief Justice population the of part a three test: concurring the dissenting portion of and equal, districts must the extent such be (2) dissenting Baer that this opinion of Justice the is possible; created district political process Assembly a the General comprised compact contig- be is must of and (3) opportunity full territory, and should be afforded the and geographical uous the I respects existing adequate time to write further district the boundaries address. therein, remedy only suggested by political contained address the subdivisions Majority bestowing as the task of such the district divides few the drawing Congressional map a onto possible.” Majority those subdivisions as new 836
itself, Id. always alter- Butcher.” legislative the face of a Court clear This has had native,1 option the pragmatic the utilize current election, congressional maps 2018 for the Majority fully it the supports states
The allowing Assembly the the General while path of “preferred legislative executive and of time to redraw our action,” appropriate amount primary and “that concedes the Further, I authority drawing legislative and responsibility districts. discuss as congressional legislative districts below, federal magnitude the and breadth squarely state legislature.” rests Majority’s remedy is inconsistent with the this, Majority Op. Notwithstanding at 821. imposed by restraints federal law. Majority remedy declares its “was well Elections The Clause of the Federal judicial sup our authority, within Times, Constitution states “[t]he by only not ported our Constitution .,. and Manner holding' Places Elections by statutes but Commonwealth and Representatives, for Senators and be shall precedent, as as similar reme federal well Legisla prescribed in each State provided by high dies courts ..other thereof; ture states, acting Congress may any but at when their sister branches remedy plan.” Regula fail to an time make or alter Law such unconstitutional Id. at tions, except chusing the Places .822. Const, 4, I, § U.S. art cl. 1 Senators.”2 cites Butcher The Majority support added). (emphasis Elections at The Clause remedy, for its omits that but Court core, grants its authority to draw á Butcher granted Assembly the General 11 state’s to the districts state map months to draft new before inter- a legislatures', ‘Congress, independent or it an vening, yet concludes its nevertheless - Leg- State remedy redistrictirig ... commission.3 Ariz. “entirely consistent with say Majority any provision gives authority 1. The not over does whether States con elections, just gressional map authority remains in effect and no Court-created such elections, through through the 2018 also could reserved under the Tenth Amend 2020, Cook, 522-23, any may elections arise special ment.” at U.S. S.Ct. between, census, express until after 1029. The is’both Elections'Clause time, of,, on, point grant some power other limitation a elections, governments in state includ federal Supreme has Elec 2. The Court described the ing infra, judiciary, I and as discuss scope, has also tions Clause but as broad by Majority cases cited not "concrete” grant power specific is a noted it form “a and do not bedrock foundation.” Gralike, directly. States 523, U.S. Cook v. Majority Op. reading at is not This (2001). 121 S.Ct. L.Ed.2d the Elections Clause a vacuum.” Id. “in ‘ regulate power of federal States 824 n.79. power arise as “re does elections Majority 3.The view my misconstrues under the Amend served” the States Tenth Clause,' Id.; also, Op. Majority e.g., Elections See at 824 U.S. X. ment. see amend. Const, words, congres If may regulate n.79. this Court In States concluded that other “the unconstitutional, map only ... sional was if the of such elections within incidents- power Assembly delegation given General under the Elec time to exclusive sufficient Clause,” Cook, (which here) act is not the tions 531 U.S. case fails to act, may where a circumstance arise S.Ct. "federalism,” temporary could discussing rights” map draw In “state *90 pending Majority, operate remedial basis further the as state feder appears legislative quite al legislature’s action. But it is another sumption that a state redistrict authority put ing is matter this Court to the General over federal elections indeed As sembly power, Majority Tenth on a three-week timeline without Amendment ar such However, ticulating complete necessary Op. 824 other- than at criteria n.79.- Clause, . constitutionally compliant. be Elections other "[n]o constitutional
837
Comm’n,
Indep.
v.
Mature
Ariz.
Redist.
“is matched
state control over the elec
—
—,
2652, 2667-68,
135
offices.”).
U.S.
S.Ct.
tion
process
state
(2015).
192
Supreme
L.Ed.2d
As
704
Turning
of the Supreme
cases
Court
the United States recognized,
Court of the United
cited by
States
function,
“redistricting
legislative
is a
none of them
Majority,
support the reme
performed
be
accordance with
dy contemplated here. In
v.
Scott Germa
prescriptions for lawmaking,
State’s
which
no,
407,
1525,
381 U.S.
85 S.Ct.
14 L.Ed.2d
may include the referendum and the Gov
(1965),
477
Supreme
Court issued an
ernor’s veto.”
at 2668. It
Id.
ais
truism
unsigned per curiam opinion pertaining to
legisla
that this
possesses
Court
neither
apportionment
function,
authority.
among
tive
nor
this
Illinois
Senate
While
is
certainly
Court
the final
the Illinois
Representatives,
arbiter
House of
Constitution,
meaning
of the
which
outside the
purview
the Elec
may
it
remedy any
not
of our
violations
Scott,
408,
tions Clause.4
381
at
85
U.S.
charter,
manner,
state
ain
that the Fed
5.Ct. 1525.
all,
prohibits.
Constitution
After
eral
fed
Nor
the Elec
contemplate
did
,is
Const,
VI,
eral law supreme.
art.
U.S.
Emison,
tions
Clause Growe v.
507 U.S.
cl. 2.
25,
1075,
(1993).
113.
122
388
S.Ct.
L.Ed.2d
The
Majority points
certain cases
Growe,
In
the Court, in an
au
opinion
state’judi
its
concrete
view “make
Scalia, only
Justice
by-
thored
considered
ciary’s ability
redistricting
to formulate a
question
of Pullman
abstention.5
plan,
necessary.”
Op.
Majority
when
at
Briefly,
dueling
was
there
federal
outset,
823. At
on this point,
can set
we
litigation
state
about
state
Minnesota’s
305,
Bloom, 420
216
aside Butcher v.
Pa.
Growe,
legislative
federal
districts.
507
(1966),
pertains
A.2d 457
to the state
27-28,
113
U.S.
S.Ct. 1075. The Court
legislative
Assem
districts
General
federal
held the
court should have
district
Butcher,
bly.
Elec
legislative map, as the Elections Clause Growe, merely issue in the Court observed Times, only refers Places “[t]he done, judiciary had what Minnesota holding Manner of Elections for Senators Const, it to constitutionally did hold be Representatives[.]” art .and U.S. Court’s in Growe sheds opinion valid.6 The Beaver, 4, 1; § Clingman cl. 544 see v. also court’may light on whether take no a state 581, 586, 2029, S.Ct. U.S. 125 161 L.Ed.2d (2005) drawing congres on the task federal (stating, granted that the power inmap to the the first instance.7 States under the Elections Clause sional Indeed, presented posture examples cited mooted or in a different the cases Scott 4. judicial only pertain of state following intervention conclusion of case.” the state-court Scott, legislative state See U.S: at 32, districts. Growe, 507 U.S. 1075. S.Ct. cases). (collecting 85 S.Ct. 1525 Indeed, explicitly the Court that after 6. stated abstention, Generally, under Pullman adopted Supreme its Court of Minnesota named for R.R. Comm'n Tex. v. Pullman redistricting plan, federal district own Co., U.S. S.Ct. 85 L.Ed. permitted any then be to resolve would court (1941), required court is to defer federal regarding state court's and all pending litigation state court “when consti- .claims Growe, plan. S.Ct. tutional issue in the 507 U.S. at federal action will
838 legislatures as it this area. out v. state wishes points
The Court
that Wise
Legislature,
State
tures. Clause also
contemplates
Congress may
that
override
9.Branch,
later,
Scalia,
by
years
Justice
Eleven
Scalia dissented
also authored
7.
Justice
denying
certiorari
Colo.
congres-
Court
dealt with a federal court-authored
Salazar,
1093,
Assembly
124
Gen.
v.
541 U.S.
Mississippi’s
following
map
sional
districts
(2004),
S.Ct.