League of Women Voters of PA v. Cmwlth

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IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
LEAGUE OF WOMEN VOTERS OF : No. 159 MM 2017
PENNSYLVANIA, CARMEN FEBO SAN :
MIGUEL, JAMES SOLOMON, JOHN :
GREINER, JOHN CAPOWSKI, :
GRETCHEN BRANDT, THOMAS :
RENTSCHLER, MARY ELIZABETH :
LAWN, LISA ISAACS, DON LANCASTER, :
JORDI COMAS, ROBERT SMITH, :
WILLIAM MARX, RICHARD MANTELL, :
PRISCILLA MCNULTY, THOMAS :
ULRICH, ROBERT MCKINSTRY, MARK :
LICHTY, LORRAINE PETROSKY , :
:
:
Petitioners :
:
:
v. :
:
THE COMMONWEALTH OF :
PENNSYLVANIA; THE PENNSYLVANIA :
GENERAL ASSEMBLY; THOMAS W. :
WOLF, IN HIS CAPACITY AS :
GOVERNOR OF PENNSYLVANIA; :
MICHAEL J. STACK III, IN HIS CAPACITY :
AS LIEUTENANT GOVERNOR OF :
PENNSYLVANIA AND PRESIDENT OF :
THE PENNSYLVANIA SENATE; :
MICHAEL C. TURZAI, IN HIS CAPACITY :
AS SPEAKER OF THE PENNSYLVANIA :
HOUSE OF REPRESENTATIVES; :
JOSEPH B. SCARNATI III, IN HIS :
CAPACITY AS PENNSYLVANIA SENATE :
PRESIDENT PRO TEMPORE; ROBERT :
TORRES, IN HIS CAPACITY AS ACTING :
SECRETARY OF THE :
COMMONWEALTH OF PENNSYLVANIA; :
JONATHAN M. MARKS, IN HIS :
CAPACITY AS COMMISSIONER OF THE :
BUREAU OF COMMISSIONS, :
ELECTIONS, AND LEGISLATION OF :
THE PENNSYLVANIA DEPARTMENT OF :
STATE, :
:
Respondents :
DISSENTING STATEMENT
CHIEF JUSTICE SAYLOR FILED: January 22, 2018
Consistent with my previous vote disfavoring the assumption of extraordinary
jurisdiction, I agree with the Commonwealth Court’s original position that it would have
been appropriate to stay this matter pending anticipated guidance from the Supreme
Court of the United States in Gill v. Whitford, No. 16-1161 (U.S.). See Order dated Oct.
16, 2017, in League of Women Voters of Pa. v. Commonwealth, No. 261 M.D. 2017
(Pa. Cmwlth.). Indeed, the Supreme Court has stayed a series of recent federal court
directives to state legislatures in cases lodging partisan gerrymandering challenges
pending its review, most recently, as of last week. See Order dated Jan. 18, 2018, in
Rucho v. Common Cause, No. 17A745 (U.S.). I hold the view that restraint is
appropriate, particularly in light of the timing of the present challenge to a congressional
redistricting plan that was enacted in 2011 and the proximity of the impending 2018
election cycle. Cf. Concurring and Dissenting Statement, slip op. at 3-4 (Baer, J.).
The crafting of congressional district boundaries is quintessentially a political
endeavor assigned to state legislatures by the United States Constitution. See U.S.
CONST. art. I, §4. Notably, certain political objectives – such as the aim to avoid pitting
incumbents against each other or to maintain the cores of prior districts – have been
recognized as traditional redistricting criteria. See Karcher v. Daggett, 462 U.S. 725,
740, 103 S. Ct. 2653, 2663 (1983). Federal and state courts also appreciate the
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propriety of preserving communities of interest which may not overlap with political
subdivision lines. See, e.g., Evenwel v. Abbott, ___ U.S. ___, ___, 136 S. Ct. 1120,
1124 (2016); Holt v. 2011 Legislative Reapportionment Comm’n, 620 Pa. 373, 422-23,
67 A.3d 1211, 1241 (2013). Furthermore, in terms of such communities, it seems plain
that legislators are in a superior position to address their interests. Accord Vieth v.
Jubelirer, 541 U.S. 267, 358, 124 S. Ct. 1769, 1824 (2004) (Breyer, J., dissenting) (“It is
precisely because politicians are best able to predict the effects of boundary changes
that the districts they design usually make some political sense.” (emphasis in original)).
To the extent that a judicially manageable standard can be articulated in this
arena, I believe the proper litmus should abide such considerations. I also consider it
appropriate to take into account matters of degree relative to the inevitable political and
partisan dynamics associated with redistricting by a legislative body.
I realize that the recommended factual findings of Judge Brobson of the
Commonwealth Court raise substantial concerns as to the constitutional viability of
Pennsylvania's current congressional districts when considered under standards that
have recently been applied by some federal courts in decisions, which, again, are under
review by the United States Supreme Court. My position at this juncture is only that I
would not presently upset those districts, in such an extraordinarily compressed fashion,
and without clarifying – for the benefit of the General Assembly and the public – the
constitutional standards by which districting is now being adjudged in Pennsylvania.
Justice Mundy joins this dissenting statement.
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