Commonwealth ex rel. Specter v. Levin

Order

Per Curiam :

And Now, this seventh day of February, 1972, upon consideration of the above appeals, we find that the Final Reapportionment Plan of the Pennsylvania State Legislative Beapportionment Commission filed on December 29, 1971, is in compliance with the mandates of the Federal and Pennsylvania Constitutions and therefore shall have the force of law. Hence it is ordered that said Plan filed on December 29, 1971, shall be used in the forthcoming Primary and General Elections of 1972 and thereafter shall remain in force and effect until constitutionally altered.

June 5, 1972: Mr. Chief Justice Jones, Mr. Justice Pomeroy and Mr. Justice Manderino dissent.

Opinions to follow.

Opinion by

Mr. Justice Boberts,

On February 7, 1972, after oral argument on 17 of the 18 above-captioned appeals,¹ this Court entered an order declaring that the final plan for the reapportionment of the Pennsylvania Senate and House of Bepresentatives filed by the Pennsylvania Legislative Beapportionment Commission was in compliance with the requirements of the United States Constitution and the Constitution of this Commonwealth.² In that order we indicated that opinions would follow. This opinion is in response to that order.

I

The reapportionment plan that is attacked by appellants is the first work product of the Pennsylvania Legislative Beapportionment Commission established by an amendment to the Pennsylvania Constitution in 1968.³ Prior to 1968 reapportionment of the Pennsylvania Legislature was effected by . act of tbe General Assembly.⁴

The Legislative Reapportionment Commission consists of five members. Four of the members are the majority, and minority leaders of both the Senate and the House of Representatives, or deputies appointed by each of them.⁵ The fifth member is the chairman of the Commission.⁶ The chairman is selected either by the four other members of the Commission, or, if those four members fail to select a chairman within the time prescribed, the chairman is selected by this Court.⁷ The Commission acts by a majority vote of its membership.⁸

The advantages of assigning the responsibility for reapportioning the Legislature to such a commission are quite obvious, and several other states have recently adopted or considered proposals for similar commissions.⁹ The equal representation on the Commission provided to the majority and minority members of each house precludes the reapportionment process from being unfairly dominated by the party in power at the moment of apportionment. In addition, the provision for a chairman who can act as a “tie-breaker” eliminates the possibility of a legislative deadlock on reapportionment such as the one that occurred in the Legislature of this Commonwealth in 1965 and compelled this Court to undertake the task of reapportionment.¹⁰ At the same time the Legislature’s expertise in reapportionment matters is essentially retained.¹¹

II

In its epic decision on state legislative apportionment in Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362 (1964), the United States Supreme Court held: “[T]he Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable.”¹² The Court went on to approve “divergences from a strict population standard [that] are based on legitimate considerations incident to the effectuation of a rational state policy,”¹³ but cautioned that these divergences must not dilute the equal-population principle “in any significant way.”¹⁴ The Court held: “[T]he overriding objective must be substantial equality of population among the various districts. . . .”¹⁵

Section 16 of Article II of the Pennsylvania Constitution, in addition to incorporating the “as-nearly-of-equal-population-as-is-praeticable” mandate of Reynolds, establishes two other factors which a plan for reapportionment of the Pennsylvania Legislature is to meet. That section provides: “The Commonwealth shall be divided into fifty senatorial and two hundred three representative districts, which shall be composed of compact and contiguous territory as nearly equal in population as practicable. . . . Unless absolutely necessary no county, city, incorporated town, borough, township or ward shall be divided in forming either a senatorial or representative district.”¹⁶ In Reynolds, Section 16’s additional objectives for reapportionment plans were specifically recognized as legitimate considerations which can justify some divergences from a strict population standard. The Court held: “A State may legitimately desire to maintain the integrity of various political subdivisions, insofar as possible, and provide for compact districts of contiguous territory in designing a legislative apportionment scheme. Valid considerations may underlie such aims.”¹⁷

However, in light of the fact that the Equal Protection Clause requires that in any reapportionment scheme “the overriding objectives must be substantial equality of population,”¹⁸ it is not constitutionally permissible to totally achieve Section 16’s objective of respecting the boundaries of political subdivisions. As the Supreme Court explained in Reynolds: “[Permitting deviations from population-based representation does not mean that each local governmental unit or political subdivision can be given separate representation, regardless of population. Carried too far, a scheme of giving at least one seat in one house to each political subdivision . . . could easily result, in many States, in a total subversion of the equal-population principle in that legislative body. . . . [I]f, even as a result of a clearly rational state policy of according some legislative representation to political subdivisions, population is submerged as the controlling consideration in the apportionment of seats in the particular legislative body, then the right of all the State’s citizens to cast an effective and adequately weighted vote would be unconstitutionally impaired.”¹⁹

In addition, Section 10’s desire for districts that are “compact” must also yield, if need be, to the “overriding objective . . . [of] substantial equality of population.”²⁰ Moreover, attempts to maintain the integrity of the boundaries of political subdivisions unless it is “'absolutely necessary” to do otherwise will in reality make it impossible to achieve districts of precise mathematical compactness.²¹ A great many, if not most of the counties, cities, towns, boroughs, townships and wards in this Commonwealth have a geographical shape which falls far short of ideal mathematical compactness.²²

Thus the approach that this Court adopted when we were obliged to undertake the task of reapportionruent in 1966 remains the approach which the Legislative Apportionment Commission must employ in formulating its plan. In Butcher II, 420 Pa. at 309-10, 216 A. 2d at 459 (1966), we stated: “Our primary concern has been to provide for substantial equality of population among legislative districts. At the same time, we have sought to maintain the integrity of political subdivisions and to create compact districts of contiguous territory, insofar as these goals could be realized under the circumstances of the population distribution of this Commonwealth.”²³

Subsequent to this Court’s decision in Butcher II the United States Supreme Court decided Kirkpatrick v. Preisler, 394 U.S. 526, 89 S. Ct. 1225 (1969), and Wells v. Rockefeller, 394 U.S. 542, 89 S. Ct. 1234 (1969). In these cases, which involved Congressional redistricting plans for the states of Missouri and New York, the Court held: “[T]he command of Art. I, §2, that States create congressional districts which provide equal representation for equal numbers of people permits only the limited population variances which are unavoidable despite a good-faitli effort to achieve absolute equality, or for which justification is shown.”²⁴

In Kirkpatrick the Court struck down a Missouri redistricting plan in which the total range of deviation from the ideal district population was 5.97%.²⁵ The Court not only observed that it was “not seriously contended that the Missouri Legislature came as close to equality as it might have come,”²⁶ but stated in addition: “[l]t is simply inconceivable that population disparities of the magnitude found in the Missouri plan were unavoidable.”²⁷ The Court also held: “[W]e do not find legally acceptable the argument that variances are justified if they necessarily result from a State’s attempt to avoid fragmenting political subdivisions by drawing congressional district lines along existing . . . political subdivision boundaries.”²⁸

Kirkpatrick and Wells, as has already been noted, were decisions involving Congressional redistricting plans. These decisions indicate that deviations from equality of population that were formerly regarded as insubstantial and permissible will now be regarded as substantial and impermissible, necessitating a closer adherence to equality of population, even in the area of state legislative apportionment.²⁹ However, Kirkpatrick’s rejection, in Congressional redistricting, of the maintenance of the boundaries of political subdivisions as a justification for deviations from absolute population equality, cannot be applied in full force to state legislative reapportionment.³⁰

As early as Reynolds v. Sims the Supreme Court recognized that “[s]omewhat more flexibility may . . . be constitutionally permissible with respect to state legislative apportionment than in congressional districting.”³¹ The Court there made it clear why states should have “somewhat” greater flexibility to attempt to preserve the boundaries of political subdivisions in legislative apportionment: “Local governmental entities are frequently charged with various responsibilities incident to the operation of state government. In many States much of the legislature’s activity involves the enactment of so-called local legislation, directed only to the concerns of particular political subdivisions.”³² However, these political subdivisions play no corresponding role in the federal government,³³ and little of Congress’ activity involves legislation directed “only to the concerns of particular [state] political subdivisions.”

Ill

We tarn now to an examination of the plan filed by the Reapportionment Commission. Since the “overriding objective” of any plan must be “substantial equality of population among the various districts,”³⁴ our first inquiry is whether the Commission’s plan meets that objective. We believe that it does.

Although the United States Supreme Court has eschewed establishing rigid mathematical standards for what is substantial equality of population in state legislative apportionment,³⁵ it is clear that the requirement of substantial equality has undergone a process of refinement since the Reynolds decision in 1964.³⁶ For example, this Court’s apportionment plan in 1966 produced deviations between the highest and lowest-populated districts of 19.16% from the ideal Senate district and 80.04% from the ideal House district.³⁷

However, the United States Supreme Court’s subsequent decision in Swann v. Adams, 385 U.S. 440, 87 S. Ct. 569 (1967), struck down a reapportionment plan for the Florida Legislature which provided for only a 25.65% range of deviation from the ideal population for Senate districts.³⁸ In addition, as has already been noted, the Supreme Court’s decision in Kirkpatrick v. Preisler, although it involved Congressional redistricting, struck down a plan in which the total range of deviation from the ideal district population was only 5.97%.³⁹

It is clear that the Legislative Reapportionment Commission recognized that closer adherence to the requirement of equality of population is now constitutionally in order for state legislative apportionment plans. Under the plan for the reapportionment of the Senate filed by the Commission, the 47th Senatorial District has the lowest population, 231,172, which is 2.02% below the ideal population for Senatorial districts. The 13th Senatorial District has the largest population, 241,360, which is 2.29% above the ideal for Senatorial districts. Thus the total range of deviation from the ideal Senate district population is only 4.31%. Forty of the Senatorial districts deviate less than 1.5% from the ideal, of which 22 deviate less than 1%. The ratio of the lowest Senatorial district population to the highest is I to 1.04.⁴⁰

According to the plan for the reapportionment of the House of Representatives filed by the Commission, the 33rd Legislative District has the smallest population, 56,675, which is 2.48% below the ideal population for Legislative districts. The 19th Legislative District has the largest population, 59,845, which is 2.98% above the average. Thus the total range of deviation from the ideal Legislative district population is only 5.46%. Cue hundred forty-nine Legislative districts deviate less than 1.5% from the ideal, of which 95 devíate less than 1%. The ratio of the lowest Legislative district population to the highest is 1 to 1.06.⁴¹

No decision of the United States Supreme Court or of this Court has ever invalidated a reapportionment plan with population deviations as minimal as those occasioned by the Commission’s plan, and we believe that the deviations clearly do not dilute the equal-population principle “in any significant way.” We conclude therefore that the Commission’s plan fully achieves the constitutionally mandated overriding objective of substantial equality of population.

IV

We also conclude that the Commission’s final plan has properly maintained the integrity of political subdivisions to the extent that it is possible without defeating the overriding principle of substantial equality of population.⁴² While it is true that the Commission’s plan provides for more political subdivision splits than did this Court’s reapportionment plan of 1966,⁴³ this increase was obviously necessitated by the stricter requirements of population equality that are now in order.⁴⁴ Yet despite these stricter population requirements, the number of subdivision splits called for by the Commission’s plan is still quite small when compared to the 2,566 municipalities⁴⁵ and 9,576 voting precincts⁴⁶ in this Commonwealth.

It should also be noted that under any scheme of reapportionment that aims at substantial equality of population, a certain amount of subdivision fragmentation is inevitable. For example, when a political subdivision such as Luzerne County has a population which is approximately 1.45 times as large as the ideal Senatorial district population, it is inevitable that the county will be split between at least two Senatorial districts. Keeping this factor in mind, it is clear that the Commission’s plan substantially maintains the integrity of this state’s numerous political subdivisions. Under the Commission’s plan, 74.6% of this state’s counties are divided among the ideal number of Senate districts, and only 25.4% of the counties are divided into more than the ideal number of Senate districts.⁴⁷

V

It is undisputed that the Commission’s plan provides for districts of “contiguous” territory. A contiguous district has been defined as “one in which a person can go from any point within the district to any other point [within the district] without leaving the district,”⁴⁸ or one in which “no part of the district is wholly physically separate from any other part.”⁴⁹ Each and every district drawn by the Commission meets these definitions of contiguity.

Finally, we can discern no basis for disturbing the Commission’s plan on the ground that the districts for which it provides are not composed of “compact” territory. Before any apportionment plan can be attacked for lack of compactness it must be recognized that there is a certain degree of unavoidable noncompactness in any apportionment scheme. The population density of this state is quite uneven, and therefore attempts to achieve the overriding objective of substantial equality of population will ordinarily necessitate the drawing of districts that are not models of geometric compactness. In addition, attempts to maintain the integrity of the boundaries of political subdivisions will add another increment of unavoidable noncompactness.⁵⁰ Thus, in the words of one commentator: “Dragons, bacon strips, dumbbells, and other strained shapes are not always reliable signs that partisan (or racial or ethnic or factional) interests are being served. . . .”⁵¹

Because of this unavoidable noncompactness, a determination that a reapportionment plan must fail for lack of compactness cannot be made merely by a glance at an electoral map and a determination that the shape of a particular district is not aesthetically pleasing. Instead, as has been proposed by several commentators,⁵² compactness of Legislative districts must be evaluated objectively aud with allowance for the elements of unavoidable noncompactness.

However, none of the appellants in this matter offered any concrete or objective data indicating that the districts established by the Commission’s plan lack compactness. The most that appellants offered in attacking the compactness of various districts were dictionary definitions of compactness and conclusory assertions that certain districts were not compact. The Pennsylvania Constitution requires that those who challenge the Commission’s plan have the burden of establishing that it is “'contrary to law.”⁵³ In light of appellants’ failure to produce any objective data indicating that the districts established by the Commission’s plan lack compactness, we cannot conclude, merely on the basis of appellants’ unsupported assertions, that the Commission’s plan fails for lack of compactness. This Court will not adopt the illusory and undiscerning approach of rejecting a plan merely because the geographic shapes of a few districts are not aesthetically pleasing.

VI

Accordingly, the final plan for the reapportionment of the Pennsylvania Senate and House of Representatives filed by the Pennsylvania Legislative Reapportionment Commission is in compliance with all of the requirements of the United States Constitution and the Constitution of this Commonwealth.

1 No. 70 May Term, 1972, was submitted to this Court without oral argument.

2 Mr. Chief Justice Jones, Mr. Justice Pomeroy, and Mr. Justice Manderino dissented from our February 7, 1972, order.

3 Constitution of Pennsylvania, Art. II, Section 17.

4 See Butcher v. Bloom, 415 Pa. 438, 442, 203 A. 2d 556, 558 (1964) [hereinafter referred to as Butcher /].

5 Constitution of Pennsylvania, Art. II, Section 17(b).

6 Id.

7 Id. The present chairman of the Reapportionment Commission was appointed by this Court.

8 Id. Section 17(a).

9 See Dixon, The 'Warren Court Crusade for. the Holy Grail of “One Man-One Vote,” 1969 The Supreme Court Review 219, 246-47 [hereinafter cited as Dixon, Crusade]; Dixon & Hatheway, The Seminal Issue in State Constitutional Revision: Reapportionment Method and Standards, 10 Wm. & Mary L. Rev. 888, 890 (1969) [hereinafter cited as Dixon & Hatheway].

10 See Butcher v. Bloom, 420 Pa. 305, 307-09, 219 A. 2d 457, 457-59 (1966) [hereinafter referred to as Butcher II].

11 Butcher I, 415 Pa. at 461, 203 A. 2d at 569.

12 377 U.S. at 577, 84 S. Ct. at 1390.

13 Id. at 579, 84 S. Ct. at 1391; see Swann v. Adams, 385 U.S. 440, 444, 87 S. Ct. 569, 572 (1967); Roman v. Sincock, 377 U.S. 695, 710, 84 S. Ct. 1449, 1458 (1964).

14 377 U.S. at 578, 84 S. Ct. at 1390.

15 Id. at 579, 84 S. Ct. at 1390 (emphasis added).

16 Prior to the 1068 amendment which added the present Section 16 of Article II to the Pennsylvania Constitution, Sections 16 and 17 of Article II dealt with Senatorial and Representative districts. Both Senate and House districts were required to be of •‘compact and contiguous territory,” but the requirement that political subdivisions be respected was specifically set forth only for Senatorial districts. With respect to Senatorial districts it was provided: “No ward, borough, or township shall be divided in the formation of a district.”

17 377 U.S. at 578, 84 S. Ct. at 1390; see Abate v. Mundt, 403 U.S. 182, 185, 91 S. Ct. 1904, 1906 (1971); Swann v. Adams, 385 U.S. 440, 444, 87 S. Ct. 569, 572 (1967).

18 See text at note 15, supra.

19 377 U.S. at 581, 84 S. Ct. at 1391-92 (footnote omitted). See Sims v. Amos, 336 F. Supp. 924, 938-39 (M.D. Ala. 1972).

20 377 U.S. at 579, 84 S. Ct. at 1390.

21 Reock, Measuring Compactness as a Requirement of Legislative Apportionment, 5 Midwest Journal of Political Science 70, 74 (1961).

22 For the views of two commentators who have advanced mathematical methods of measuring geographical compactness, see Schwartzberg, Reapportionment, Gerrymanders, and the Notion of “Compactness,” 50 Minn. L. Rev. 443 (1966), and Reock, Measuring Compactness as a Requirement of legislative Apportionment, 5 Midwest Journal of Political Science 70 (1961).

23 In Butcher I, 415 Pa. at 463, 203 A. 2d at 570-71, this Court first set forth the approach which we subsequently employed in Butcher II. We held: “Article II, §16 of the Pennsylvania Constitution requires that senatorial reapportionment legislation must maintain the integrity of counties and other political subdivisions, insofar as possible, and must provide for compact districts of contiguous territory, subject always to the overriding objective and mandate that such districts shall be ‘as nearly equal in population as may be.’ We must emphasize that, if necessary, any political subdivision or subdivisions may be divided or combined in the formation of districts where the population principle cannot otherwise be satisfied.”

The approach which this Court adopted by its disposition of Butcher I was implicitly approved by the United States Supreme Court. See Scranton v. Drew, 379 U.S. 40, 85 S. Ct. 207 (1964).

24 Kirkpatrick v. Preisler, 394 U.S. 526, 531, 89 S. Ct. 1225, 1229 (1969); see Wells v. Rockefeller, 394 U.S. 542, 546, 89 S. Ct. 1234, 1237 (1969).

25 394 U.S. at 528-29, 89 S. Ct. at 1227-28.

26 Id. at 531, 89 S. Ct. at 1229.

27 Id. at 532, 89 S. Ct. at 1229.

28 Id. at 533-34, 89 S. Ct at 1230.

29 With Kirkpatrick and Wells compare Swann v. Adams, 385 U.S. 440, 87 S. Ct. 569 (1967) (held unconstitutional a plan for the reapportionment of the Florida Legislature where the total range of deviation from the ideal district population was 25.65% in the Senate and 33.55% in the House). See Dixon, Crusade at 219.

30 The Harvard Law Beview’s survey of the United States Supreme Court’s 1968 Term, 83 Harv. L. Bev. 7, 103 (1969), took the following position: “At any rate, it is unlikely that the Court will rely on Kirkpatrick to support a declaration that the following of political subdivision lines cannot justify population variances in state legislative apportionment. The Court in Beynolds recognized that the role political subdivisions play in carrying out state policy provides a legitimate reason for representation of those subdivisions in state legislatures, though these subdivisions play no corresponding role in federal government.”

On April 17, 1972, the United States Supreme Court granted certiorari in the ease of Howell v. Mahan, 330 F. Supp. 1138 (E.D. Va. 1971), to consider whether “state legislative districts must be as nearly equal in population to the one-man, one vote guidelines for Congressional districts. . . .” New York Times, April 18, 1972, p. 24, col. 3. See 40 L.W. 3497.

It should also be noted that subsequent to the Kirlcpatriclc and Wells decisions, in holding constitutional a plan for the apportionment of the board of supervisors of Bockland County, New York, the Supreme Court repeated the holding of Beynolds that “a desire to preserve the integrity of political subdivisions may justify an apportionment plan which departs from numerical equality.” Abate v. Mundt, 403 U.S. 182, 185, 91 S. Ct. 1904, 1907 (1971) (citing Reynolds v. Sims, 377 U.S. 533, 578, 84 S. Ct. 1362, 1390 (1964)). See Whitcomb v. Chavis, 403 U.S. 124, 162, 91 S. Ct. 1858, 1878-79 (1971) (opinion of Mr. Justice White, in which Chief Justice Burger, Mr. Justice Black, and Mr. Justice Blackmun joined) ; see generally, Dixon, Crusade.

31 377 U.S. at 578, 84 S. Ct. at 1390.

32 377 U.S. at 580-81, 84 S. Ot at 1391.

33 The Supreme Court, 1968 Term, 83 Harv. L. Rev. 7, 103 (1969).

34 See text at notes 15 and 23, supra.

The Supreme Court’s language in Reynolds that a state mnst make “an honest and good faith effort to construct districts . . . as nearly of equal population as is practicable. . . (377 U.S. at 577, 84 S. Ct. at 1390) must be read to require “good faith efforts” to achieve districts “as nearly of equal population as is practicable” only in the absence of any “legitimate considerations” authorizing “divergences from a strict population standard.” Id. at 579, 84 S. Ct. at 1391. Once some legitimate considerations are recognized, as we have done here, the question is how far from absolute equality can the districting proceed in order to effectuate these legitimate considerations. The answer that the Supreme Court gave in Reynolds is that the divergencies cannot submerge the “overriding objective” of “substantial equality of population among the various districts.” Id. at 579, 84 S. Ct. at 1390.

35 Roman v. Sincock, 377 U.S. 695, 710, 84 S. Ct. 1449, 1458 (1964); Reynolds v. Sims, 377 U.S. 533, 578, 84 S. Ct. 1362, 1390 (1964).

36 See Whitcomb v. Chavis, 403 U.S. 124, 162, 91 S. Ct. 1858, 1879 (1971) (opinion of Hr. Justice White, in which Chief Justice Burger, Mr. Justice Black, and Mr. Justice Blackmun joined) ; Dixon & Hatheway at 901.

37 This Court’s 1966 legislative reapportionment plan produced the following population deviations:

Brief for Appellees, Exhibit A.

38 In Kilgarlin v. Hill, 386 U.S. 120, 87 S. Ct. 820 (1967), decided a few months after Sxoann, the Court invalidated a plan for the reapportionment of the Texas House of Representatives where the total range of deviation from the ideal district size was only 26.4%.

39 See text at note 25, supra.

40 Letter from Legislative Reapportionment Commission, December 29, 1971, set forth in Brief for Appellees, Exhibit B.

41 id.

42 See text at note 15, supra.

43 Even in this Court’s 1966 reapportionment plan we found it necessary to split a ward between the Seventh and Thirty-Sixth Senatorial Districts. Butcher II at 346, 351-52.

44 See note 29 and accompanying text, supra.

45 1972 Pennsylvania Statistical Abstract, Table 133 (“municipalities” includes cities, boroughs, and townships).

46 Survey published by Bureau of Election, Dept, of State, Commonwealth of Pennsylvania (1972).

47 In Pennsylvania there are 54 counties which have populations of less than 235,949, the ideal Senatorial district population, and which ideally should be placed wholly within one Senatorial district Of those 54, 42 are wholly within one district (77.8%), and 12 are divided between two districts (22.2%).

There are 9 counties which have populations between 235,949 and 471,898 and which ideally should be divided between two districts. Of those 9, 6 are divided between two districts (06.7%), 2 are divided among three districts (22.2%), and one is divided among five districts (11.1%).

There are 2 counties which have populations between 471,898 and 707,847 and which ideally should be divided among three district. Of those 2, one is divided among four districts (50%), and one Is divided among five districts (50%).

There is one county with a population of 1,605,016 and which ideally should be divided among nine districts. It is divided among nine districts. See generally, Sims v. Amos, 336 F. Supp. 924, 938 (M.l). Ala. 1972).

48 Note, Reapportionment, 79 Harv. L. Rev. 1228, 1284 (1966).

49 Dixon & Hatheway at 891 n.9.

50 See note 21 and accompanying text, supra.

51 Sickels, Dragons, Bacon Strips and Dumbbells—Who’s Afraid of Reapportionment?, 75 Vale L. Rev. 1300 (1966).

52 Schwartzberg, Reapportionment, Gerrymanders, and the Notion of “Compactness,” 50 Minn. L. Rev. 443 (1966) ; Reock, Measuring Compactness as a Requirement of Legislative Apportionment, 0 Midwest Journal of Political Science 70 (1961).

53 Constitution of Pennsylvania, Art. II, §17(d).