Carter, C., Pets. v. Chapman, L. ( 2022 )

IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
CAROL ANN CARTER, MONICA : No. 7 MM 2022
PARRILLA, REBECCA POYOUROW, :
WILLIAM TUNG, ROSEANNE MILAZZO, :
BURT SIEGEL, SUSAN CASSANELLI, LEE :
CASSANELLI, LYNN WACHMAN, MICHAEL :
GUTTMAN, MAYA FONKEU, BRADY HILL, :
MARY ELLEN BALCHUNIS, TOM DEWALL, :
STEPHANIE MCNULTY AND JANET :
TEMIN, :
:
Petitioners :
:
:
v. :
:
:
LEIGH M. CHAPMAN, IN HER OFFICIAL :
CAPACITY AS THE ACTING SECRETARY :
OF THE COMMONWEALTH OF :
PENNSYLVANIA; JESSICA MATHIS, IN :
HER OFFICIAL CAPACITY AS DIRECTOR :
FOR THE PENNSYLVANIA BUREAU OF :
ELECTION SERVICES AND NOTARIES, :
:
Respondents :
CONCURRING STATEMENT
JUSTICE DOUGHERTY FILED: February 2, 2022
I join the Court’s per curiam order. In my view, the practical and policy-based
concerns laid out in Chief Justice Baer’s concurring statement supply more than enough
reason to exercise extraordinary jurisdiction over this important case at this stage. I write
only to offer the following additional perspective.
It is clear “the primary responsibility and authority for drawing federal congressional
legislative districts rests squarely with the state legislature.” League of Women Voters v.
Commonwealth, 178 A.3d 737, 821 (Pa. 2018), citing U.S. CONST. art. I, §4. In
Pennsylvania, the redistricting process is relatively straightforward: every ten years,
“congressional districts are drawn by the [General Assembly] as a regular statute, subject
to veto by the Governor.” Id. at 742; accord Ariz. State Legislature v. Ariz. Indep.
Redistricting Comm’n, 576 U.S. 787, 808 (2015) (“redistricting is a legislative function, to
be performed in accordance with the State’s prescriptions for lawmaking, which may
include . . . [a] Governor’s veto”). But because this system involves two branches of our
Commonwealth government (which, it suffices to say, do not always see eye-to-eye), it
naturally invites the possibility of a stalemate. And when that happens, and “an
intervening event — most commonly, as here, a [decennial] census — renders the current
plan unusable, a court must undertake the ‘unwelcome obligation’” of formulating a plan.
Perry v. Perez, 565 U.S. 388, 392 (2012) (per curiam), quoting Connor v. Finch, 431 U.S.
407, 415 (1977); see also League of Women Voters, 178 A.3d at 824 (“the Pennsylvania
Constitution, statutory law, our Court’s decisions, federal precedent, and case law from
our sister states, all serve as a bedrock foundation on which stands the authority of the
state judiciary to formulate a valid redistricting plan when necessary”); accord, e.g.,
Growe v. Emison, 507 U.S. 25, 34 (1993) (recognizing the “legitimacy of state judicial
redistricting”) (emphasis in original); Scott v. Germano, 381 U.S. 407, 409 (1985) (per
curiam) (“The power of the judiciary of a State to require valid reapportionment or to
formulate a valid redistricting plan has not only been recognized by this Court but
appropriate action by the States in such cases has been specifically encouraged.”)
(emphasis added).
[7 MM 2022] - 2
These overarching principles are not in dispute here.1 However, the present
emergency application for extraordinary relief highlights an unresolved issue of state law
that I believe warrants our consideration: when, as here, the legislative and executive
branches are unable or unwilling to agree on a redistricting plan, thereby forcing the
judiciary’s reluctant involvement, which court in this Commonwealth is saddled with the
unwelcome burden of adopting or creating a plan? We have never expressly answered
this question. Nevertheless, as far as I can tell, existing law suggests this weighty task
and the attendant responsibility of ensuring a plan satisfies the dictates of state and
federal law, fall exclusively on this Court.
Redistricting may be rough terrain for the judiciary, but it is not foreign. In Mellow
v. Mitchell, 607 A.2d 204 (Pa. 1992), for example, our sister branches’ failure to come to
an agreement on a redistricting plan placed the Court in the same position we now find
ourselves. When Pennsylvania lost two congressional seats following the 1990 decennial
census, legislator-petitioners filed suit in the Commonwealth Court’s original jurisdiction
seeking, inter alia, the judicial adoption of a valid redistricting plan if the General Assembly
failed to enact one by a date certain. After that deadline came and went, the court ordered
1 Indeed, all parties concede the judiciary’s involvement is not only appropriate at this
point, but imperative. See Emergency Application for Extraordinary Relief at 3 (“[W]hen
the legislature is unable or chooses not to act, it becomes the judiciary’s role to ensure a
valid districting scheme.”) (internal quotation and citation omitted); Answer of Governor
Wolf at 7 (“the Court should . . . adopt a 17-district congressional redistricting plan”); Joint
Answer of House and Senate Republicans at 4 (“The entire purpose of this expedited
legislation was to ensure that a map could be timely adopted if the General Assembly and
Governor could not agree on a map.”); Answer of Acting Secretary of the Commonwealth
at 1 (agreeing with Governor Wolf that this Court should adopt a 17-district congressional
redistricting plan); Answer of Senate Democrats at 4 (“the Pennsylvania Constitution
recognizes the Supreme Court’s unique authority to undertake the extraordinary role of
developing the maps for the Commonwealth”); Answer of Reschenthaler, et al. at 7 (“the
need for a new congressional redistricting plan is clear”); Answer of House Democrats at
9 (“this Court . . . has the power, authority, and jurisdiction to fashion any judicial remedy”);
Answer of Gressman, et al. at 1 (“the judicial branch must act to ensure that Pennsylvania
has lawful congressional districts in place before the 2022 elections”).
[7 MM 2022] - 3
hearings to begin the next day for the purposes of taking evidence and considering
proposed plans that had been submitted. At the start of the hearings, however, this Court
assumed plenary jurisdiction and reassigned the matter to the President Judge of the
Commonwealth Court to serve as a special master. The special master was tasked with
concluding the hearings and “report[ing] to us” his findings of fact and a recommendation
regarding a proposed plan. Id. at 206. We then reviewed those findings and the special
master’s recommendation before dismissing all exceptions thereto and approving the
plan as final.
That we appointed a special master in Mellow and instructed him to make
recommendations for our consideration, rather than to select or create the new plan
himself, was surely not mere happenstance. In my view, it may well have been because
the lower court lacked the legal power to grant the relief sought. In this respect, I observe
the Commonwealth Court possesses specifically defined statutory authority:
The Commonwealth Court shall have power to issue, under its judicial seal,
every lawful writ and process necessary or suitable for the exercise of its
jurisdiction and for the enforcement of any order which it may make,
including such writs and process to or to be served or enforced by system
and related personnel as the courts of common pleas are authorized by law
or usage to issue. The court shall also have all powers of a court of record
possessed by the courts of common pleas and all powers necessary or
appropriate in aid of its appellate jurisdiction which are agreeable to the
usages and principles of law.
42 Pa.C.S. §562. But this Court, as “the highest court” in Pennsylvania, is vested with
“the supreme judicial power of the Commonwealth.” PA. CONST. art. V, §2; see also 42
Pa.C.S. §502 (“The Supreme Court shall have and exercise the powers vested in it by
the Constitution of Pennsylvania, including the power generally to minister justice to all
persons and to exercise the powers of the court, as fully and amply, to all intents and
purposes, as the justices of the Court of King’s Bench, Common Pleas and Exchequer,
at Westminster, or any of them, could or might do on May 22, 1722.”). Indeed, our Court
[7 MM 2022] - 4
alone “possesses broad authority to craft meaningful remedies when required.” League
of Women Voters, 178 A.3d at 822; see also 42 Pa.C.S. §726 (“[n]otwithstanding any
other provision of law,” this Court may in any matter “enter a final order or otherwise cause
right and justice to be done”).
As additional support for this view, I note the process we employed in Mellow is
consistent with this Court’s general historical practice in the redistricting arena. In fact,
over the last six decades, it appears we have exercised extraordinary jurisdiction in every
single case in which the task of drawing Pennsylvania’s election districts has fallen to the
judiciary. See League of Women Voters, 178 A.3d 737; Erfer v. Commonwealth, 794
A.2d 325 (Pa. 2002); Mellow, 607 A.2d 204; Butcher v. Bloom, 203 A.2d 556 (Pa. 1964).
More broadly, I am aware of no situation in which any court other than this one has had
the last word in a redistricting case. It is not unreasonable, then, to surmise this Court
has consistently found it necessary to exercise extraordinary jurisdiction in these types of
cases precisely because it, unlike any other court, possesses the “supreme judicial power
of the Commonwealth,” PA. CONST. art. V, §2, including broad authority to “cause right
and justice to be done” in any matter, 42 Pa.C.S. §726.
The present circumstances are instructive. Petitioners filed a petition for review in
the Commonwealth Court’s original jurisdiction in which they sought declaratory and
injunctive relief relative to the congressional district plan currently in place. See Petition
for Review at 18-19, Carter v. Chapman, 464 MD 2021 (Pa. Cmwlth. Dec. 17, 2021)
(asking court to (1) “Declare that the current configuration of Pennsylvania’s
congressional districts violates Article I, Section 5 of the Pennsylvania Constitution; Article
1, Section 2 of the U.S. Constitution; and 2 U.S.C. §2c” and (2) “Enjoin Respondents,
their respective agents, officers, employees, and successors . . . from implementing,
enforcing, or giving any effect to Pennsylvania’s current congressional district plan”).
[7 MM 2022] - 5
There is no reason to question the Commonwealth Court’s authority to resolve these
claims. See, e.g., 42 Pa.C.S. §761(a)(1) (vesting original jurisdiction over civil actions or
proceedings against Commonwealth government in Commonwealth Court); 42 Pa.C.S.
§562 (delineating powers of the Commonwealth Court). And, of course, the well-qualified
jurists serving on that tribunal have proven time and again they are more than capable of
skillfully handling these complex matters.2
But the petition for review filed below also implored that court to do something that
goes well beyond a typical request for declaratory or injunctive relief: petitioners asked
that court to “[a]dopt a new congressional district plan that complies with Article I, Section
5 of the Pennsylvania Constitution; Article 1, Section 2 of the U.S. Constitution; and 2
U.S.C. §2.” Petition for Review at 19, Carter v. Chapman, 464 MD 2021 (Pa. Cmwlth.
Dec. 17, 2021). It is unclear what authority, if any, the Commonwealth Court possesses
that would permit it to fashion such sweeping relief. Although it is true that court has the
“power to issue . . . every lawful writ and process necessary or suitable for the exercise
of its jurisdiction and for the enforcement of any order which it may make,” 42 Pa.C.S.
§562, the declaratory and injunctive relief sought by petitioners pertained only to the
current plan in place, not a future hypothetical one to be chosen by the Commonwealth
Court. More importantly, nothing in the statutory authority afforded to the Commonwealth
Court remotely appears to endow a single judge of that court with the power to step into
the legislature’s federal constitutional role to determine the “[t]imes, [p]laces and [m]anner
of holding [e]lections” by enacting a judicial redistricting plan. U.S. CONST. art. I, §4. Such
an extraordinary judicial legal remedy may fit comfortably within this Court’s supreme
2 Indeed, Judge McCullough’s efficient handling of the matter thus far proves the point,
and this Court will surely benefit from her continued service as special master going
forward.
[7 MM 2022] - 6
judicial power to cause right and justice to be done, but far less so under the
Commonwealth Court’s circumscribed authority.
This last point also raises a host of practical concerns. Election redistricting is a
notoriously political endeavor, which is why the judiciary usually plays no role in such
matters unless called upon or forced to intercede. In those rare circumstances where the
other branches of government fail to act, however, and the judiciary is left with the
“unwelcome obligation,” it makes little sense in my view to impose that duty on the
shoulders of a single, randomly selected intermediate court judge. See, e.g., Smith v.
Clark, 189 F. Supp. 2d 503, 509 (S.D. Miss. 2002) (“giving a single [ ] judge the power to
reapportion the entire State’s congressional districts . . . presents quite serious
concerns”). Indeed, adopting or creating a judicial redistricting plan is a far different beast
than assessing the constitutionality of an existing legislative plan; the latter is guided by
a set of “neutral criteria” that we have said “provide a ‘floor’ of protection[,]” League of
Women Voters, 178 A.3d at 817; but we have yet to establish how, in the former scenario,
a court is to select a particular plan in a vacuum, especially where multiple proposals may
meet the constitutional floor. Cf. id. at 822 (“matters concerning the proper interpretation
and application of our Commonwealth’s organic charter are at the end of the day for this
Court — and only this Court”).
To clarify, I reserve judgment on the issues addressed in this concurring statement.
Still, I raise them because I believe the time has come for this Court to establish a uniform
practice for dealing with redistricting cases such as this. From my respectful point of view,
the people of this Commonwealth, as well as the other branches of government upon
which the primary responsibility for drawing federal congressional districts rests, have a
right to know what to anticipate should the judiciary be dragged into the process. This
includes resolving which court(s) possess the authority to select a judicial redistricting
[7 MM 2022] - 7
plan in the first place.3 But it also includes establishing criteria that should guide a court’s
analysis. As stated, our decision in League of Women Voters set forth “neutral criteria
[that] provide a ‘floor’ of protection for an individual against the dilution of his or her vote
in the creation of such districts” — including compactness, contiguity, respect for the
boundaries of political subdivisions, and maintenance of population equality among
districts. Id. at 817. But we also foresaw the day when this floor might require additional
construction. We emphasized “the overarching objective of . . . our constitution is to
prevent dilution of an individual’s vote by mandating that the power of his or her vote in
the selection of representatives be equalized to the greatest degree possible with all other
Pennsylvania citizens.” Id. In the event this case presents the opportunity to provide
further clarity, I for one am willing to do so, and shine as much light as possible on what
many believe is an improperly political and unfairly partisan process.
3 Notably, there is no intermediate court involvement in other important areas such as
capital appeals, and even gaming appeals. See 4 Pa.C.S. §1904 (vesting this Court with
original and exclusive jurisdiction to resolve constitutional challenges to Gaming Act); 42
Pa.C.S. §9711(h)(1) (sentence of death subject to automatic review by this Court).
[7 MM 2022] - 8