League of Women Voters of PA v. Cmwlth

[J-1-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
LEAGUE OF WOMEN VOTERS OF : No. 159 MM 2017
PENNSYLVANIA, CARMEN FEBO SAN :
MIGUEL, JAMES SOLOMON, JOHN : On the Recommended Findings of Fact
GREINER, JOHN CAPOWSKI, : and Conclusions of Law of the
GRETCHEN BRANDT, THOMAS : Commonwealth Court of Pennsylvania
RENTSCHLER, MARY ELIZABETH : entered on 12/29/18 at No. 261 MD
LAWN, LISA ISAACS, DON LANCASTER, : 2017
JORDI COMAS, ROBERT SMITH, :
WILLIAM MARX, RICHARD MANTELL, : ARGUED: January 17, 2018
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 :
OPINION
JUSTICE TODD FILED: February 7, 2018
It is a core principle of our republican form of government “that the voters should
choose their representatives, not the other way around.”1 In this case, Petitioners
allege that the Pennsylvania Congressional Redistricting Act of 20112 (the “2011 Plan”)
does the latter, infringing upon that most central of democratic rights – the right to vote.
Specifically, they contend that the 2011 Plan is an unconstitutional partisan
gerrymander. While federal courts have, to date, been unable to settle on a workable
standard by which to assess such claims under the federal Constitution, we find no such
barriers under our great Pennsylvania charter. The people of this Commonwealth
should never lose sight of the fact that, in its protection of essential rights, our founding
document is the ancestor, not the offspring, of the federal Constitution. We conclude
that, in this matter, it provides a constitutional standard, and remedy, even if the federal
charter does not. Specifically, we hold that the 2011 Plan violates Article I, Section 5 –
the Free and Equal Elections Clause – of the Pennsylvania Constitution.
1
Mitchell N. Berman, Managing Gerrymandering, 83 Tex. L. Rev. 781, 781 (2005),
quoted in Arizona State Legislature v. Arizona Indep. Redistricting Comm'n, 135 S. Ct.
2652, 2677 (2015).
2
Act of Dec. 22, 2011, P.L. 599, No. 131, 25 P.S. §§ 3596.101 et seq.
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The challenge herein was brought in June 2017 by Petitioners, the League of
Women Voters3 and 18 voters – all registered Democrats, one from each of our state’s
congressional districts – against Governor Thomas W. Wolf, Lieutenant Governor
Michael J. Stack, III, Secretary Robert Torres, and Commissioner Jonathan M. Marks
(collectively, “Executive Respondents”), and the General Assembly, Senate President
Pro Tempore Joseph B. Scarnati, III, and House Speaker Michael C. Turzai
(collectively, “Legislative Respondents”).4 5
Petitioners alleged that the 2011 Plan
violated several provisions of our state Constitution.
On January 22, 2018, this Court entered a per curiam order6 agreeing with
Petitioners, and deeming the 2011 Plan to “clearly, plainly and palpably violate[]” our
state Constitution, and so enjoined its further use.7 See Order, 1/22/18. We further
3
On November 17, 2017, the Commonwealth Court dismissed the League of Women
Voters from the case based on a lack of standing. On the presentations before us, see
Petitioners’ Brief at 41 n.5, and given our resolution of this matter, we do not revisit that
decision.
4
A similar challenge, under federal law, was brought by citizen-petitioners against the
Governor, the Secretary, and the Commissioner in federal district court, contending that
Plan violates the Elections Clause, Article I, Section 4, of the federal Constitution. Trial
in that case was held in December, one week prior to the trial in the instant matter. In a
2-1 decision, on January 10, 2018, the three-judge panel of the United States District
Court for the Eastern District of Pennsylvania rejected the petitioners’ challenge. See
Agre v. Wolf, No. 17-4392, 2018 WL 351603 (E.D. Pa. Jan. 10, 2018).
5
On November 13, 2017, the Commonwealth Court permitted to intervene certain
registered Republican voters from each district, including announced or potential
candidates for Congress and other active members of the Republican Party (the
“Intervenors”).
6
To our Order, Justice Baer filed a Concurring And Dissenting Statement, Chief Justice
Saylor filed a Dissenting Statement, joined by Justice Mundy, and Justice Mundy filed a
Dissenting Statement.
7
In our order, we excepted the March 13, 2018 special election for Pennsylvania’s 18th
Congressional District. See Order, 1/22/18, ¶ “Sixth.”
[J-1-2018] - 3
provided that, if the General Assembly and the Governor did not enact a remedial plan
by February 15, 2018, this Court would choose a remedial plan. For those endeavors,
we set forth the criteria to be applied in measuring the constitutionality of any remedial
plan, holding that:
any congressional districting plan shall consist of:
congressional districts composed of compact and contiguous
territory; as nearly equal in population as practicable; and
which do not divide any county, city, incorporated town,
borough, township, or ward, except where necessary to
ensure equality of population.
Order, 1/22/18, ¶ “Fourth.”8 Our Order indicated that an opinion would follow. This is
that Opinion, and we emphasize that, while explicating our rationale, nothing in this
Opinion is intended to conflict with, or in any way alter, the mandate set forth in our
Order of January 22, 2018.9
8
On January 23, 2018, Legislative Respondents filed with this Court an application for a
stay of our Order, alleging the Order would have a chaotic effect on the 2018 elections,
and arguing the Order implicated an important question of federal law on which they
would base an appeal to the United States Supreme Court. Intervenors filed a similar
application. Both applications were denied on January 25, 2018, with dissents noted by
Chief Justice Saylor, and Justices Baer and Mundy. On January 26, 2018, Legislative
Respondents filed with the United States Supreme Court an emergency application for
a stay of this Court’s January 22, 2018 Order; the application was denied on February
5, 2018.
9
A brief description of the Court’s process in issuing orders with opinions to follow is
instructive. Upon agreement of the majority of the Court, the Court may enter, shortly
after briefing and argument, a per curiam order setting forth the court’s mandate, so that
the parties are aware of the court’s ultimate decision and may act accordingly. This is
particularly so in election matters, where time is of the essence. Justices in the
minority, or who disagree with any part of the order, may issue brief concurring or
dissenting statements, or may simply note their concurrence with or dissent from the
order.
The Court is, however, still a deliberative body, meaning there is a back-and-forth
nature not only to decision-making, but to legal analysis. Many analyses, such as those
in this case, are complex and nuanced. Thus, the Court’s process involves, in the first
instance, the drafting of an opinion by the majority author, and, of course, involves
exhaustive research and multiple interactions with other Justices. Once a majority
(continued…)
[J-1-2018] - 4
I. Background
A. Redistricting Mandate
Article I, Section 2 of the United States Constitution requires that a census be
taken every 10 years for the purpose of apportioning the United States House of
Representatives. Following the 2010 federal census, Pennsylvania’s share in the
House was reduced from 19 to 18 members.10 As a result, the Commonwealth was
required to redraw its congressional district map.
Pennsylvania’s congressional districts are drawn by the state legislature as a
regular statute, subject to veto by the Governor.11 While this process is dictated by
federal law, it is delegated to the states. The federal Constitution’s Elections Clause
provides that “[t]he Times, Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the Legislature thereof,” unless
Congress should “make or alter such Regulations.” U.S. Const. art. I, § 4, cl. 1.
Pursuant to the Elections Clause, Congress passed 2 U.S.C. § 2a, which provides that,
(…continued)
opinion is completed, it is circulated to all of the other Justices for their review and
comment. At that point, each of the other Justices has the opportunity to write his or her
own concurring or dissenting opinions, expressing that Justice’s ultimate views on the
issues presented. These responsive opinions are then circulated to the other Justices
for their responses, if any. Only then, after every member of the Court has been
afforded the time and opportunity to express his or her views, are the opinions finalized.
At that point, a majority opinion, along with any concurring and dissenting opinions, are
filed with our Prothonotary and released to the public. It is a process, and it is one to
which this Court rigorously adheres.
10
Public Law 94-171, enacted by Congress in 1975, requires the Census Bureau to
deliver redistricting results to state officials for legislative redistricting. See 13 U.S.C. §
141. For the 2010 federal census, the Census Bureau was required to deliver
redistricting data to the states no later than April 1, 2011.
11
By contrast, the state legislative lines are drawn by a five-member commission
pursuant to the Pennsylvania Constitution. See Pa. Const. art. II, § 17.
[J-1-2018] - 5
following the decennial census and reapportionment, the Clerk of the House of
Representatives shall “send to the executive of each State a certificate of the number of
Representatives to which such State is entitled” and the state shall be redistricted “in
the manner provided by the law thereof.” 2 U.S.C. § 2a. If the state does not do so,
Representatives are to be elected as further provided in Section 2a.12
B. Plan Passage
The 2011 Plan, Senate Bill 1249, was enacted on December 22, 2011, setting
forth Pennsylvania’s 18 congressional districts.13 In the November 2010 general
election, voters elected Republicans to majorities in both houses of the General
Assembly and elected a Republican, Tom Corbett, as Governor. Thus, in 2011, the
Republican-led General Assembly was tasked with reconstituting Pennsylvania’s
congressional districts, reducing their number by one, and adjusting their borders in light
of population changes reflected by the 2010 Census. On May 11, June 9, and June 14,
2011, the Pennsylvania House and Senate State Government Committees held
hearings on the subject of redistricting, for the ostensible purpose of receiving testimony
and public comment on the subject of redistricting generally. On September 14, 2011,
Senate Bill 1249, Printer’s Number 1520, principally sponsored by the Republican
leadership, was introduced, but contained absolutely no information concerning the
12
Both the Elections Clause and Section 2a have been interpreted as envisioning that
the redistricting process will be subject to state law restrictions, including gubernatorial
veto, judicial remedies, citizen referenda, and even the reconstitution, via citizen
initiative, of the authority to redistrict into independent redistricting agencies. The role of
courts generally, and this Court in particular, in fashioning congressional districts is a
matter we discuss more fully below in Part VI, “Remedy.”
13
This history is based on the joint stipulation of the parties. See Joint Stipulation of
Facts, 12/8/17.
[J-1-2018] - 6
boundaries of any congressional districts. On December 7, 2011, the bill was brought
up for first consideration, and, on December 11, 2011, for second consideration.
Thereafter, the bill was referred to the Senate State Government Committee,
where, on December 14, 2011, it was amended and reprinted as Senate Bill 1249,
Printer’s Number 1862, now providing proposed boundaries for each of Pennsylvania’s
18 congressional districts, before being reported out of committee. The same day, the
bill was referred to the Senate Appropriations Committee, where it was again amended
and reprinted as Senate Bill 1249, Printer’s Number 1869, and reported out of
committee to the floor. There, Democratic Senator Jay Costa introduced an
amendment to the bill he indicated would modify it to create 8 Republican-favorable
districts, 4 Democrat-favorable districts, and 6 swing districts, but the Senate declined to
adopt the amendment and passed Senate Bill 1249, Printer’s Number 1869, in a 26-24
vote, with all Democrats voting against passage. The same day, Senate Bill 1249,
Printer’s Number 1869, proceeded to the House of Representatives, where it was
referred to the House State Government Committee, and reported out of committee.
The next day, on December 15, 2011, Senate Bill 1249, Printer’s Number 1869, was
brought up for first consideration, and, on December 19, 2011, second consideration.
On December 20, 2011, the bill was referred to the House Appropriations Committee,
reported out of the committee, and passed in a 136-61 vote, with 36 Democrats voting
in favor of passage.14 On December 22, 2011, Senate Bill 1249, Printer’s Number
1869, proceeded to the governor’s desk where then-Governor Corbett signed it into law
as Act 131 of 2011, the 2011 Plan.
14
Notably, 33 of the 36 Democrats who voted in favor of passage serve districts within
the 1st, 2nd, 13th, 14th, or 17th Congressional Districts, which, as detailed herein, are safe
Democratic districts under the 2011 Plan.
[J-1-2018] - 7
C. The 2011 Plan
A description of the 2011 Plan and some of its characteristics is appropriate.15 A
map of the entire 2011 Plan is attached as Appendix A.
1. The Districts
a. 1st Congressional District
The 1st Congressional District is composed of parts of Delaware and Philadelphia
Counties, and appears as follows:
See Joint Exhibit 6.
15
As with the legislative history of the 2011 Plan, this description is based upon the joint
stipulation of the parties.
[J-1-2018] - 8
b. 2nd Congressional District
The 2nd Congressional District is composed of parts of Montgomery and
Philadelphia Counties, and appears as follows:
See Joint Exhibit 7.
[J-1-2018] - 9
c. 3rd Congressional District
The 3rd Congressional District is composed of Armstrong, Butler, and Mercer
Counties, together with parts of Clarion, Crawford, Erie, and Lawrence Counties, and
appears as follows:
See Joint Exhibit 8.
[J-1-2018] - 10
d. 4th Congressional District
The 4th Congressional District is composed of Adams and York Counties,
together with parts of Cumberland and Dauphin Counties, and appears as follows:
See Joint Exhibit 9.
[J-1-2018] - 11
e. 5th Congressional District
The 5th Congressional District is composed of Cameron, Centre, Clearfield,
Clinton, Elk, Forest, Jefferson, McKean, Potter, Venango, and Warren Counties,
together with parts of Clarion, Crawford, Erie, Huntingdon, and Tioga Counties, and
appears as follows:
See Joint Exhibit 10.
[J-1-2018] - 12
f. 6th Congressional District
The 6th Congressional District is composed of parts of Berks, Chester, Lebanon,
and Montgomery Counties, and appears as follows:
See Joint Exhibit 11.
[J-1-2018] - 13
g. 7th Congressional District
The 7th Congressional District is composed of parts of Berks, Chester, Delaware,
Lancaster, and Montgomery Counties, and appears as follows:
See Joint Exhibit 12.
[J-1-2018] - 14
h. 8th Congressional District
The 8th Congressional District is composed of Bucks County, together with parts
of Montgomery County, and appears as follows:
See Joint Exhibit 13.
[J-1-2018] - 15
i. 9th Congressional District
The 9th Congressional District is composed of Bedford, Blair, Fayette, Franklin,
Fulton, and Indiana Counties, together with parts of Cambria, Greene, Huntingdon,
Somerset, Washington, and Westmoreland Counties, and appears as follows:
See Joint Exhibit 14.
[J-1-2018] - 16
j. 10th Congressional District
The 10th Congressional District is composed of Bradford, Juniata, Lycoming,
Mifflin, Pike, Snyder, Sullivan, Susquehanna, Union, and Wayne Counties, together with
parts of Lackawanna, Monroe, Northumberland, Perry, and Tioga Counties, and
appears as follows:
See Joint Exhibit 15.
[J-1-2018] - 17
k. 11th Congressional District
The 11th Congressional District is composed of Columbia, Montour, and
Wyoming Counties, together with parts of Carbon, Cumberland, Dauphin, Luzerne,
Northumberland, and Perry Counties, and appears as follows:
See Joint Exhibit 16.
[J-1-2018] - 18
l. 12th Congressional District
The 12th Congressional District is composed of Beaver County, together with
parts of Allegheny, Cambria, Lawrence, Somerset, and Westmoreland Counties, and
appears as follows:
See Joint Exhibit 17.
[J-1-2018] - 19
m. 13th Congressional District
The 13th Congressional District is composed of parts of Montgomery and
Philadelphia Counties, and appears as follows:
See Joint Exhibit 18.
[J-1-2018] - 20
n. 14th Congressional District
The 14th Congressional District is composed of parts of Allegheny and
Westmoreland Counties, and appears as follows:
See Joint Exhibit 19.
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o. 15th Congressional District
The 15th Congressional District is composed of Lehigh County and parts of
Berks, Dauphin, Lebanon, and Northampton Counties, and appears as follows:
See Joint Exhibit 20.
[J-1-2018] - 22
p. 16th Congressional District
The 16th Congressional District is composed of parts of Berks, Chester, and
Lancaster Counties, and appears as follows:
See Joint Exhibit 21.
[J-1-2018] - 23
q. 17th Congressional District
The 17th Congressional District is composed of Schuylkill County and parts of
Carbon, Lackawanna, Luzerne, Monroe, and Northampton Counties, and appears as
follows:
See Joint Exhibit 22.
[J-1-2018] - 24
r. 18th Congressional District
Finally, the 18th Congressional District is composed of parts of Allegheny,
Greene, Washington, and Westmoreland Counties, and appears as follows:
See Joint Exhibit 23.
2. Other Characteristics
Of the 67 counties in Pennsylvania, the 2011 Plan divides a total of 28 counties
between at least two different congressional districts:16 Montgomery County is divided
among five congressional districts; Berks and Westmoreland Counties are each divided
16
The 2011 Plan also consolidates previously split counties: prior to the 2011 Plan,
Armstrong, Butler, Mercer, Venango, and Warren Counties were split between
congressional districts, whereas, under the 2011 Plan, they are not.
[J-1-2018] - 25
among four congressional districts;17 Allegheny, Chester,18 and Philadelphia Counties
are each divided among three congressional districts; and Cambria, Carbon, Clarion,
Crawford, Cumberland, Delaware, Erie,19 Greene, Huntingdon, Lackawanna, Lancaster,
Lawrence, Lebanon, Luzerne, Monroe, Northampton,20 Northumberland, Perry,
Somerset, Tioga, and Washington Counties are each split between two congressional
districts.21 Additionally, whereas, prior to 1992, no municipalities in Pennsylvania were
divided among multiple congressional districts, the 2011 Plan divides 68, or 2.66%, of
Pennsylvania’s municipalities between at least two Congressional districts.22
17
The City of Reading is separated from the remainder of Berks County. From at least
1962 to 2002, Berks County was situated entirely within a single congressional district.
18
The City of Coatesville is separated from the remainder of Chester County.
19
From at least 1931 until 2011, Erie County was not split between congressional
districts.
20
The City of Easton is separated from the remainder of Northampton County.
21
In total, 11 of the 18 congressional districts contain more than three counties which
are divided among multiple congressional districts.
22
The municipalities include Archbald, Barr, Bethlehem, Caln, Carbondale, Chester,
Cumru, Darby, East Bradford, East Carroll, East Norriton, Fallowfield, Glenolden,
Harrisburg, Harrison, Hatfield, Hereford, Horsham, Kennett, Laureldale, Lebanon, Lower
Alsace, Lower Gwynedd, Lower Merion, Mechanicsburg, Millcreek, Monroeville,
Morgan, Muhlenberg, North Lebanon, Northern Cambria, Olyphant, Penn, Pennsbury,
Perkiomen, Philadelphia, Piney, Plainfield, Plymouth Township, Ridley, Riverside,
Robinson, Sadsbury, Seven Springs, Shippen, Shippensburg, Shirley, Spring,
Springfield, Stroud, Susquehanna, Throop, Tinicum, Trafford, Upper Allen, Upper
Darby, Upper Dublin, Upper Gwynedd, Upper Hanover, Upper Merion, Upper Nazareth,
West Bradford, West Hanover, West Norriton, Whitehall, Whitemarsh, Whitpain, and
Wyomissing. Monroeville, Caln, Cumru, and Spring Township are split into three
separate congressional districts. Three of these municipalities – Seven Springs,
Shippensburg, and Trafford – are naturally divided between multiple counties, and
Cumru is naturally noncontiguous. Additionally, wards in Bethlehem and Harrisburg are
split between congressional districts.
[J-1-2018] - 26
Finally, as noted above, the General Assembly was tasked with reducing the
number of Pennsylvania’s congressional districts from 19 to 18, necessitating the
placement of at least two congressional incumbents into the same district. The 2011
Plan placed then-Democratic Congressman for the 12th Congressional District Mark
Critz and then-Democratic Congressman for the 4th Congressional District Jason Altmire
into the same district. Notably, the two faced off in an ensuing primary election, in
which Critz prevailed. He subsequently lost the general election to now-Congressman
Keith Rothfus, who has prevailed in each biannual election thereafter.
D. Electoral History
As grounding for the parties’ claims and evidentiary presentations, we briefly
review the Commonwealth’s electoral history before and after the 2011 Plan was
enacted.23 As noted above, the map for the 2011 Plan is attached at Appendix A. The
parties have provided copies of prior congressional district maps – for 1943, 1951,
1962, 1972, 1982, 1992, and 2002 – which were procured from the Pennsylvania
Manual.24 They are attached as Joint Exhibit 26 to the Joint Stipulations of Fact. See
Joint Stipulation of Facts, 12/8/17, at ¶ 93.
23
As above, this information is derived from the parties’ Joint Stipulation of Facts.
24
The Pennsylvania Manual is a regularly published book issued by the Pennsylvania
Department of General Services. We cite it as authoritative. See, e.g., Erfer v.
Commonwealth, 794 A.2d 325 (Pa. 2002).
[J-1-2018] - 27
The distribution of seats in Pennsylvania from 1966 to 2010 is shown below:
Year Districts Democratic Republican
Seats Seats
1966 27 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
1980 25 12[25] 12
1982 23 13 10
1984 23 13 10
1986 23 12 11
1988 23 12 11
1990 23 11 12
1992 21 11 10
1994 21 11 10
1996 21 11 10
1998 21 11 10
2000 21 10 11
2002 19 7 12
2004 19 7 12
2006 19 11 8
2008 19 12 7
2010 19 7 12
25
One elective representative, Thomas M. Foglietta, was not elected as either a
Democrat or Republican in 1980.
[J-1-2018] - 28
Joint Stipulation of Facts, 12/8/17, at ¶ 70.
In the three elections since the 2011 Plan was enacted, Democrats have won the
same five districts, and Republicans have won the same 13 districts. In the 2012
election, Democrats won five congressional districts with an average of 76.4% of the
vote in each, whereas Republicans won the remaining 13 congressional districts with an
average 59.5% of the vote in each, and, notably, Democrats earned a statewide share
of 50.8% of the vote, an average of 50.4% per district, with a median of 42.8% of the
vote, whereas Republicans earned only a statewide share of 49.2% of the vote.26
In the 2014 election, Democratic candidates again won five congressional races,
with an average of 73.6% of the vote in each, whereas Republicans again won 13
congressional districts, with an average of 63.4% of the vote in each.27 In 2014,
26
Specifically, in 2012, Democratic candidates won in the 1 st Congressional District with
84.9% of the vote; the 2nd Congressional District with 90.5% of the vote; the 13th
Congressional District with 69.1% of the vote; the 14th Congressional District with 76.9%
of the vote; and the 17th Congressional District with 60.3% of the vote. On the other
hand, Republican candidates won in the 3rd Congressional District with 57.2% of the
vote; the 4th Congressional District with 63.4% of the vote; the 5th Congressional District
with 62.9% of the vote; the 6th Congressional District with 57.1% of the vote; the 7th
Congressional District with 59.4% of the vote; the 8th Congressional District with 56.6%
of the vote; the 9th Congressional District with 61.7% of the vote; the 10 th Congressional
District with 65.6% of the vote; the 11th Congressional District with 58.5% of the vote;
the 12th Congressional District with 51.7% of the vote; the 15th Congressional District
with 56.8% of the vote; the 16th Congressional District with 58.4% of the vote; and the
18th Congressional District with 64.0% of the vote.
27
Specifically, in 2014, Democrats won in the 1st Congressional District with 82.8% of
the vote; the 2nd Congressional district with 87.7% of the vote; the 13th Congressional
District with 67.1% of the vote; the 14th Congressional District, which was uncontested,
with 100% of the vote; and the 17th Congressional District with 56.8% of the vote.
Republican candidates won in the 3rd Congressional District with 60.6% of the vote; the
4th Congressional District with 74.5% of the vote; the 5th Congressional District with
63.6% of the vote; the 6th Congressional district with 56.3% of the vote; the 7 th
Congressional District with 62.0% of the vote; the 8th Congressional District with 61.9%
of the vote; the 9th Congressional District with 63.5% of the vote; the 10 th Congressional
District with 71.6% of the vote; the 11th Congressional District with 66.3% of the vote;
the 12th Congressional District with 59.3% of the vote; the 15th Congressional District,
(continued…)
[J-1-2018] - 29
Democrats earned a 44.5% statewide vote share in contested races, whereas
Republicans earned a 55.5% statewide vote share in contested races, with a 54.1%
statewide share vote in the aggregate.
In the 2016 election, Democrats again won those same five congressional
districts, with an average of 75.2% of the vote in each and a statewide vote share of
45.9%, whereas Republicans won those same 13 districts with an average of 61.8% in
each and a statewide vote share of 54.1%.28 29
(…continued)
which was uncontested, with 100% of the vote; the 16 th Congressional District with
57.7% of the vote; and the 18th Congressional District, which was uncontested, with
100% of the vote.
28
Specifically, in 2016, Democrats again prevailed in the 1st Congressional District with
82.2% of the vote; the 2nd Congressional District with 90.2% of the vote; the 13th
Congressional District, which was uncontested, with 100% of the vote; the 14th
Congressional District with 74.4% of the vote; and the 17 th Congressional District with
53.8% of the vote. Republicans again prevailed in the remainder of the districts: in the
3rd Congressional district, which was uncontested, with 100% of the vote; in the 4 th
Congressional District with 66.1% of the vote; in the 5th Congressional District with
67.2% of the vote; in the 6th Congressional District with 67.2% of the vote; in the 7 th
Congressional District with 59.5% of the vote; in the 8th Congressional District with
54.4% of the vote; in the 9th Congressional District with 63.3% of the vote; in the 10th
Congressional District with 70.2% of the vote; in the 11th Congressional District with
63.7% of the vote; in the 12th Congressional District with 61.8% of the vote; in the 15 th
Congressional District with 60.6% of the vote; in the 16th Congressional District with
55.6% of the vote; and in the 18th Congressional District, which was uncontested, with
100% of the vote.
29
Notably, voters in the 6th and 7th Congressional Districts reelected Republican
congressmen while simultaneously voting for Democratic nominee and former Secretary
of State Hillary Clinton for president. Contrariwise, voters in the 17th Congressional
District reelected a Democratic congressman while voting for Republican nominee
Donald Trump for president. Additionally, several traditionally Democratic counties
voted for now-President Trump.
[J-1-2018] - 30
In short, in the last three election cycles, the partisan distribution has been as
follows:
Year Districts Democratic Republican Democratic Republic
Seats Seats Vote Vote
Percentage Percentage
2012 18 5 13 50.8% 49.2%
2014 18 5 13 44.5% 55.5%
2016 18 5 13 45.9% 54.1%
Joint Stipulation of Facts, 12/8/18, at ¶ 102.
II. Petitioners’ Action
Petitioners filed this lawsuit on June 15, 2017, in the Commonwealth Court. In
Count I of their petition for review, Petitioners alleged that the 2011 Plan 30 violates their
rights to free expression and association under Article I, Sections 731 and 2032 of the
Pennsylvania Constitution. More specifically, Petitioners alleged that the General
Assembly created the 2011 Plan by “expressly and deliberately consider[ing] the
political views, voting histories, and party affiliations of Petitioners and other Democratic
voters” with the intent to burden and disfavor Petitioners’ and other Democratic voters'
30
Petitioners challenged, and before us continue to challenge, the Plan as a whole.
Whether such challenges are properly brought statewide, or must be district specific, is
an open question. See Vieth v. Jubelirer, 541 U.S. 267 (2004). However, no such
objection is presented to us.
31
Article I, Section 7 of the Pennsylvania Constitution provides in relevant part: “The
free communication of thoughts and opinions is one of the invaluable rights of man, and
every citizen may freely speak, write and print on any subject, being responsible for the
abuse of that liberty.” Pa. Const. art. I, § 7.
32
Article I, Section 20 provides: “The citizens have a right in a peaceable manner to
assemble together for their common good . . . .” Pa. Const. art. I, § 20.
[J-1-2018] - 31
rights to free expression and association. Petition for Review, 6/15/17, at ¶¶ 105.
Petitioners further alleged that the 2011 Plan had the effect of burdening and
disfavoring Petitioners’ and other Democratic voters’ rights to free expression and
association because the 2011 Plan “prevented Democratic voters from electing the
representatives of their choice and from influencing the legislative process” and
suppressed “the political views and expression of Democratic voters.” Id. at ¶ 107.
They contended the Plan “also violates the Pennsylvania Constitution’s prohibition
against retaliation against individuals who exercise their rights under” these articles. Id.
at ¶ 108. Specifically, Petitioners alleged that the General Assembly’s “cracking” of
congressional districts in the 2011 Plan has resulted in their inability “to elect
representatives of their choice or to influence the political process.” Id. at ¶112.
In Count II, Petitioners alleged the Plan violates the equal protection provisions of
Article 1, Sections 1 and 2633 of the Pennsylvania Constitution, and the Free and Equal
Elections Clause of Article I, Section 534 of the Pennsylvania Constitution. More
specifically, Petitioners alleged that the Plan intentionally discriminates against
Petitioners and other Democratic voters by using “redistricting to maximize Republican
seats in Congress and entrench [those] Republican members in power.” Id. at ¶ 116.
Petitioners further alleged that the Plan has an actual discriminatory effect, because it
33
Article 1, Section 1, provides: “All men are born equally free and independent, and
have certain inherent and indefeasible rights, among which are those of enjoying and
defending life and liberty, of acquiring, possessing and protecting property and
reputation, and of pursuing their own happiness.” Pa. Const. art. I, § 1. Section 26
provides: “Neither the Commonwealth nor any political subdivision thereof shall deny to
any person the enjoyment of any civil right, nor discriminate against any person in the
exercise of any civil right.” Pa. Const. art. I, § 26.
34
Article I, Section 5 provides: “Elections shall be free and equal; and no power, civil or
military, shall at any time interfere to prevent the free exercise of the right of suffrage.”
Pa. Const. art. I, § 5.
[J-1-2018] - 32
“disadvantages Petitioners and other Democratic voters at the polls and severely
burdens their representational rights.” Id. at ¶ 117. They contended that “computer
modeling and statistical tests demonstrate that Democrats receive far fewer
congressional seats than they would absent the gerrymander, and that Republicans’
advantage is nearly impossible to overcome.” Id. at ¶ 118. Petitioners claimed that
individuals who live in cracked districts under the 2011 Plan are essentially excluded
from the political process and have been denied any “realistic opportunity to elect
representatives of their choice,” and any “meaningful opportunity to influence legislative
outcomes.” Id. at ¶ 119. Finally, Petitioners claimed that, with regard to individuals
living in “packed” Democratic districts under the Plan, the weight of their votes has been
“substantially diluted,” and their votes have no “impact on election outcomes.” Id. at ¶
120.
In response to Respondents’ application, on October 16, 2017, Judge Dan
Pellegrini granted a stay of the Commonwealth Court proceedings pending the United
States Supreme Court’s decision in Gill v. Whitford, No. 16-1161 (U.S. argued Oct. 3,
2017). However, thereafter, Petitioners filed with this Court an application for
extraordinary relief, asking that we exercise extraordinary jurisdiction over the matter.35
On November 9, 2017, we granted the application and assumed plenary jurisdiction
over the matter, but, while retaining jurisdiction, remanded the matter to the
Commonwealth Court to “conduct all necessary and appropriate discovery, pre-trial and
trial proceedings so as to create an evidentiary record on which Petitioners’ claims may
35
See 42 Pa.C.S. § 726 (“Notwithstanding any other provision of law, the Supreme
Court may, on its own motion or upon petition of any party, in any matter pending before
any court or district judge of this Commonwealth involving an issue of immediate public
importance, assume plenary jurisdiction of such matter at any stage thereof and enter a
final order or otherwise cause right and justice to be done.”); see also Vaccone v.
Syken, 899 A.2d 1103, 1108 (Pa. 2006).
[J-1-2018] - 33
be decided.” Supreme Court Order, 11/9/17, at 2. We ordered the court to do so on an
expedited basis, and to submit to us findings of fact and conclusions of law no later than
December 31, 2017. Id. Finally, we directed that the matter be assigned to a
commissioned judge of that court.
The Commonwealth Court, by the Honorable P. Kevin Brobson, responded with
commendable speed, thoroughness, and efficiency, conducting a nonjury trial from
December 11 through 15, and submitting to us its recommended findings of fact and
conclusions of law on December 29, 2017, two days prior to our deadline. 36 Thereafter,
we ordered expedited briefing, and held oral argument on January 17, 2018.
III. Commonwealth Court Proceedings
In the proceedings before the Commonwealth Court, that court initially disposed
of various pretrial matters. Most notably, the court ruled on Petitioners’ discovery
requests, and Legislative Respondents’ objections thereto, directed to gleaning the
legislators’ intent behind the passage of the 2011 Plan. By order and opinion dated
November 22, 2017, the court concluded that, under the Speech and Debate Clause of
the Pennsylvania Constitution,37 the court “lack[ed] the authority to compel testimony or
36
The court’s December 29, 2017 Recommended Findings of Fact and Conclusions of
Law is broken into two principal, self-explanatory parts. Herein, we refer to those two
parts as “Findings of Fact” and “Conclusions of Law.”
37
The Speech and Debate Clause provides:
The members of the General Assembly shall in all cases,
except treason, felony, violation of their oath of office, and
breach or surety of the peace, be privileged from arrest
during their attendance at the sessions of their respective
Houses and in going to and returning from the same; and for
any speech or debate in either House they shall not be
questioned in any other place.
Pa. Const. art. II, § 15.
[J-1-2018] - 34
the production of documents relative to the intentions, motivations, and activities of state
legislators and their staff with respect to the consideration and passage of” the 2011
Plan, Commonwealth Court Opinion, 11/22/17, at 7, and so quashed those requests.38
38
Petitioners sought discovery from various third parties, including, inter alia, the
Republican National Committee, the National Republican Congressional Committee, the
Republican State Leadership Committee, the State Government Leadership
Foundation, and former Governor Corbett, requesting all documents pertaining to the
2011 Plan, all documents pertaining the Redistricting Majority Project (REDMAP), all
communications and reports to donors that refer to or discuss the strategy behind
REDMAP or evaluate its success, and any training materials on redistricting presented
to members, agents, employees, consultants or representatives of the Pennsylvania
General Assembly and former Governor Corbett. The discovery request was made for
the purpose of establishing the intent of Legislative Respondents to dilute the vote of
citizens who historically cast their vote for Democratic candidates. Legislative
Respondents opposed the request, asserting, in relevant part, that the information
sought was privileged under the Speech and Debate Clause of Article I, Section 15 of
the Pennsylvania Constitution. Agreeing with Legislative Respondents, the
Commonwealth Court denied the discovery request, excluding any documents that
reflected communications with members of the General Assembly or “the intentions,
motivations, and activities of state legislators and their staff with respect to the
consideration and passage of [the 2011 Plan],” see Commonwealth Court Opinion,
11/22/17, at 11-13, and later denied the admission of such information produced in the
federal court action.
Given the other unrebutted evidence of the intent to dilute the vote of citizens who
historically voted for Democratic candidates, we need not resolve the question of
whether our Speech and Debate Clause confers a privilege protecting this information
from discovery and use at trial in a case, such as this one, involving a challenge to the
constitutionality of a statute. However, we caution against reliance on the
Commonwealth Court’s ruling. This Court has never interpreted our Speech and
Debate Clause as providing anything more than immunity from suit, in certain
circumstances, for individual members of the General Assembly. See, e.g., Sweeney v.
Tucker, 375 A.2d 698 (Pa. 1977). Although not bound by decisions interpreting the
federal Speech or Debate Clause in Article I, Section 6 of the United States
Constitution, see id. at 703 n.14, we note that the high Court has recognized an
evidentiary privilege only in cases where an individual legislator is facing criminal
charges. See, e.g., United States v. Johnson, 383 U.S. 169 (1966); United States v.
Helstoski, 442 U.S. 477 (1979). To date, the United States Supreme Court has never
held that an evidentiary privilege exists under the Speech or Debate Clause in lawsuits
challenging the constitutionality of a statute. Further, we are not aware of any
precedent to support the application of any such privilege to information in the
possession of third parties, not legislators.
[J-1-2018] - 35
In addition, Petitioners sought to admit, and Legislative Respondents sought to
exclude, certain materials produced by House Speaker Mike Turzai in the federal
litigation in Agre v. Wolf, supra, in response to permitted discovery in that case, along
with Petitioners’ expert Dr. Jowei Chen’s expert reports and testimony based on those
materials. (As noted, similar discovery was denied in this case, per the Commonwealth
Court’s Speech and Debate Clause ruling.) These materials include redistricting maps
revealing partisan scoring down to the precinct level, demonstrating that some
legislators designing the 2011 Plan relied upon such partisan considerations.
Ultimately, the court permitted Dr. Chen’s testimony about these materials, but refused
to admit the materials themselves, refused to make any findings about them, see
Findings of Fact at ¶ 307, and submitted a portion to this Court under seal, see
Petitioners’ Exhibit 140. Notably, that sealing order required Petitioners to submit both
a “Public” and a “Sealed” version of their brief in order to discuss Exhibit 140.39 Given
our disposition of this matter, we do not further address these materials or the court’s
evidentiary rulings with respect to them.
In all, the court heard oral argument and ruled on eight motions in limine.40
39
The sole redaction in this regard in the “Public Version” of Petitioners’ Brief is on page
8. Thus, the remainder of the citations in this Opinion merely generically refer to
“Petitioners’ Brief.”
40
The other motions included:
(1) Petitioners’ motion to exclude or limit Intervenors’ witness testimony, including
precluding the testimony of an existing congressional candidate, limiting the
number of witnesses who could testify as Republican Party Chairs to one, and
limiting the number of witnesses who could testify as “Republicans at large” to
one. The motion was granted. N.T. Trial, 12/11/17, at 94.
(2) Petitioners’ motion to exclude testimony from Dr. Wendy K. Tam Cho
regarding Dr. Chen. The motion was denied. Id. at 95.
(3) Petitioners’ motion to exclude the expert testimony of Dr. James Gimpel
regarding the intended or actual effect of the 2011 Plan on Pennsylvania’s
(continued…)
[J-1-2018] - 36
A. Findings of Fact of the Commonwealth Court
Prior to the introduction of testimony, the parties and Intervenors stipulated to
certain background facts, much of which we have discussed above, and to the
introduction of certain portions of deposition and/or prior trial testimony as exhibits.41
1. Voter Testimony
(…continued)
communities of interest. Legislative Respondents subsequently agreed to
withdraw the challenged portion of the Dr. Gimpel’s report. Id. at 95-96.
(4) Legislative Respondents’ motion to exclude documents and testimony
regarding REDMAP. The motion was denied. Id. at 96.
41
Petitioners introduced designated excerpts from the depositions of: Carmen Febo
San Miguel, Petitioners’ Exhibit 163; Donald Lancaster, Petitioners’ Exhibit 164;
Gretchen Brandt, Petitioners’ Exhibit 165; John Capowski, Petitioners’ Exhibit 166; Jordi
Comas, Petitioners’ Exhibit 167; John Greiner, Petitioners’ Exhibit 168; James Solomon,
Petitioners’ Exhibit 169; Lisa Isaacs, Petitioners’ Exhibit 170; Lorraine Petrosky;
Petitioners’ Exhibit 171; Mark Lichty, Petitioners’ Exhibit 172; Priscilla McNulty,
Petitioners’ Exhibit 173; Richard Mantell, Petitioners’ Exhibit 174; Robert McKinstry, Jr.,
Petitioners’ Exhibit 175; Robert Smith, Petitioners’ Exhibit 176; and Thomas Ulrich,
Petitioners’ Exhibit 177. Generally, the testimony of the aforementioned Petitioners
demonstrates a belief that the 2011 Plan has negatively affected their ability to influence
the political process and/or elect a candidate who represents their interests. See
Findings of Fact at ¶¶ 221-34. Petitioners also introduced excerpts from the trial
testimony of State Senator Andrew E. Dinniman in Agre v. Wolf, Petitioners’ Exhibit 178,
and excerpts from the deposition testimony of State Representative Gregory Vitali,
Petitioners’ Exhibit 179. Senator Dinniman and Representative Vitali both testified as to
the circumstances surrounding the enactment of the 2011 Plan.
Respondents introduced affidavits from Lieutenant Governor Stack and Commissioner
Marks. Lieutenant Governor Stack’s affidavit stated, inter alia, that “it is beneficial,
when possible, to keep individual counties and municipalities together in a single
congressional district.” Affidavit of Lieutenant Governor Stack, 12/14/17, at 3, ¶ 8,
Respondents’ Exhibit 11. Commissioner Marks’ affidavit addressed the ramifications
with respect to timing in the event a new plan be ordered. Affidavit of Commissioner
Marks, 12/14/17, Respondents’ Exhibit 2. Intervenors introduced affidavits from
Thomas Whitehead and Carol Lynne Ryan, both of whom expressed concern that
granting Petitioners relief would adversely affect their political activities. See
Intervenors’ Exhibits 16 and 17.
[J-1-2018] - 37
Initially, several Petitioners testified at trial. They testified as to their belief that,
under the 2011 Plan, their ability to elect a candidate who represents their interests and
point of view has been compromised. William Marx, a resident of Delmont in
Westmoreland County, testified that he is a registered Democrat, and that, under the
2011 Plan, he lives in the 12th Congressional District, which is represented by
Congressman Keith Rothfus, a Republican. Marx testified that Congressman Rothfus
does not represent his views on, inter alia, taxes, healthcare, the environment, and
legislation regarding violence against women, and he stated that he has been unable to
communicate with him. Marx believes that the 2011 Plan precludes the possibility of
having a Democrat elected in his district. N.T. Trial, 12/11/17, at 113-14.
Another Petitioner, Mary Elizabeth Lawn, testified that she is a Democrat who
lives in the city of Chester. Under the 2011 Plan, Chester is in the 7th Congressional
District, which is represented by Congressman Patrick Meehan, a Republican.42 Id. at
134, 137-39. According to Lawn, Chester is a “heavily African-American” city, and, prior
to the enactment of the 2011 Plan, was a part of the 1st Congressional District, which is
represented by Congressman Bob Brady, a Democrat.43 Id. at 135, 138-39. According
to Lawn, since the enactment of the 2011 Plan, she has voted for the Democratic
candidate in three state elections, and her candidate did not win any of the elections.
Id. at 140. Lawn believes that the 2011 Plan has affected her ability to participate in the
42
Reportedly, Congressman Meehan will not seek reelection in 2018. Mike DeBonis
and Robert Costa, Rep. Patrick Meehan, Under Misconduct Cloud, Will Not Seek
Reelection, Wash. Post, Jan. 25, 2018 available at
https://www.washingtonpost.com/news/powerpost/wp/2018/01/25/rep-patrick-meehan-
under-misconduct-cloud-will-not-seek-reelection/?utm_term=.9216491ff846.
43
Reportedly, Congressman Brady also will not seek reelection in 2018. Daniella Diaz,
Democratic Rep. Bob Brady is Not Running for Re-election, CNN Politics, Jan. 31,
2018, available at https://www.cnn.com/2018/01/31/politics/bob-brady-retiring-from-
congress-pennsylvania-democrat/index.html.
[J-1-2018] - 38
political process because she was placed in a largely Republican district where the
Democratic candidate “doesn’t really have a chance.” Id. Like Marx, Lawn testified that
her congressman does not represent her views on many issues, and that she found her
exchanges with his office unsatisfying. Id. at 140-44.
Finally, Thomas Rentschler, a resident of Exeter Township, testified that he is a
registered Democrat. N.T. Trial, 12/12/17, at 669. Rentschler testified that he lives two
miles from the City of Reading, and that he has a clear “community of interest” in that
city. Id. at 682. Under the 2011 Plan, however, Reading is in the 16th Congressional
District, and Rentschler is in the 6th Congressional District, which is represented by
Congressman Ryan Costello, a Republican. Id. at 670-71, 677. Rentschler testified
that, while he voted for the Democratic candidate in the last three state elections, all
three contests were won by the Republican candidate. Id. at 673. In Rentschler’s view,
the 2011 Plan “has unfairly eliminated [his] chance of getting to vote and actually elect a
Democratic candidate just by the shape and the design of the district.” Id. at 674.
2. Expert Testimony
Petitioners presented the testimony of four expert witnesses, and the Legislative
Respondents sought to rebut this testimony through two experts of their own. We
address this testimony seriatim.
Dr. Jowei Chen
Petitioners presented the testimony of Dr. Jowei Chen, an expert in the areas of
redistricting and political geography who holds research positions at the University of
Michigan, Stanford University, and Willamette University.44 Dr. Chen testified that he
evaluated the 2011 Plan, focusing on three specific questions: (1) whether partisan
44
None of the experts presented to the Commonwealth Court were objected to based
upon their qualifications as an expert in their respective fields.
[J-1-2018] - 39
intent was the predominant factor in the drawing of the Plan; (2) if so, what was the
effect of the Plan on the number of congressional Democrats and Republicans elected
from Pennsylvania; and (3) the effect of the Plan on the ability of the 18 individual
Petitioners to elect a Democrat or Republican candidate for congress from their
respective districts. N.T. Trial, 12/11/17, at 165.
In order to evaluate the 2011 plan, Dr. Chen testified that he used a computer
algorithm to create two sets, each with 500 plans, of computer-simulated redistricting
plans for Pennsylvania’s congressional districts. Id. at 170. The computer algorithm
used to create the first set of simulated plans (“Simulation Set 1”) utilized traditional
Pennsylvania districting criteria, specifically: population equality; contiguity;
compactness; absence of splits within municipalities, unless necessary; and absence of
splits within counties, unless necessary. Id. at 167. The computer algorithm used to
create the second set of simulated plans (“Simulation Set 2”) utilized the
aforementioned criteria, but incorporated the additional criteria of protecting 17
incumbents,45 which, according to Dr. Chen, is not a “traditional districting criterion.” Id.
at 206. Dr. Chen testified that the purpose of adding incumbent protection to the criteria
for the second set of computer-simulated plans was to determine whether “a
hypothetical goal by the General Assembly of protecting incumbents in a nonpartisan
manner might somehow explain or account for the extreme partisan bias” of the 2011
Plan. Id.
With regard to Simulation Set 1, the set of computer-simulated plans utilizing only
traditional districting criteria, Dr. Chen noted that one of those plans, specifically, “Chen
45
Dr. Chen noted that there were 19 incumbents in the November 2012 congressional
elections, but that, as discussed, Pennsylvania lost one congressional district following
the 2010 census. N.T. Trial, 12/11/17, at 207-08.
[J-1-2018] - 40
Figure 1: Example of a Simulated Districting Plan from Simulation Set 1 (Adhering to
Traditional Districting Criteria)” (hereinafter “Simulated Plan 1”), which was introduced
as Petitioners’ Exhibit 3, results in only 14 counties being split into multiple
congressional districts, as compared to the 28 counties that are split into multiple
districts under the 2011 Plan. Id. at 173-74. Indeed, referring to a chart titled “Chen
Figure 3: Simulation Set 1: 500 Simulated Plans Following Only Traditional Districting
Criteria (No Consideration of Incumbent Protection),” which was introduced as
Petitioners’ Exhibit 4, Dr. Chen explained that the maximum number of split counties in
any of the 500 Simulation Set 1 plans is 16, and, in several instances, is as few as 11.
Id. at 179. The vast majority of the Simulation Set 1 plans have 12 to 14 split counties.
Id.
With respect to splits between municipalities, Dr. Chen observed that, under the
2011 Plan, there are 68 splits, whereas the range of splits under the Simulation Set 1
plans is 40 to 58. Id. at 180; Petitioners’ Exhibit 4. Based on the data contained in
Petitioners’ Exhibit 4, Dr. Chen noted that the 2011 Plan “splits significantly more
municipalities than would have resulted from the simulated plans following traditional
districting criteria, and [it] also split significantly more counties.” N.T. Trial, 12/11/17, at
180. He concluded that the evidence demonstrates that the 2011 Plan “significantly
subordinated the traditional districting criteria of avoiding county splits and avoiding
municipal splits. It shows us that the [2011 Plan] split far more counties, as well as
more municipalities, than the sorts of plans that would have arisen under a districting
process following traditional districting principles in Pennsylvania.” Id. at 181.
In terms of geographic compactness, Dr. Chen explained that he compared
Simulated Plan 1 to the 2011 Plan utilizing two separate and widely-accepted
standards. First, Dr. Chen calculated the Reock Compactness Score, which is a ratio of
[J-1-2018] - 41
a particular district’s area to the area of the smallest bounding circle that can be drawn
to completely contain the district – the higher the score, the more compact the district.
Id. at 175. The range of Reock Compactness Scores for the congressional districts in
Simulated Set 1 was “about .38 to about .46,” id. at 182, and Simulated Plan 1 had an
average Reock Compactness Score range of .442, as compared to the 2011 Plan’s
score of .278, revealing that, according to Dr. Chen, the 2011 Plan “is significantly less
compact” than Simulated Plan 1. Id. at 175.
Dr. Chen also calculated the Popper-Polsby Compactness Score of both plans.
The Popper-Polsby Compactness Score is calculated by first measuring each district’s
perimeter and comparing it to the area of a hypothetical circle with that same perimeter.
The ratio of the particular district’s area to the area of the hypothetical circle is its
Popper-Polsby Compactness Score – the higher the score, the greater the geographic
compactness. Id. at 176-77. The range of Popper-Polsby Compactness Scores for
congressional districts in the Simulated Set 1 plans was “about .29 up to about .35,” id.
at 183, and Simulated Plan 1 had an average Popper-Polsby Score of .310, as
compared to the 2011 Plan’s score of .164, again leading Dr. Chen to conclude that “the
enacted map is significantly far less geographically compact” than Simulated Plan 1. Id.
at 177.
Utilizing a chart showing the mean Popper-Polsby Compactness Score and the
mean Reock Compactness Score for each of the 500 Simulation Set 1 plans, as
compared to the 2011 Plan, see Petitioners’ Exhibit 5 (“Chen Figure 4: Simulation Set 1:
500 Simulated Plans Following Only Traditional Districting Criteria (No Consideration of
Incumbent Protection)”), Dr. Chen opined that “no matter which measure of
compactness you use, it’s very clear that the [2011 Plan] significantly and completely
sacrifice[s] the traditional districting principle of geographic compactness compared to
[J-1-2018] - 42
the sorts of plans that would have emerged under traditional districting principles.” N.T.
Trial, 12/11/17, at 184.
Dr. Chen next addressed the 500 Simulation Set 2 Plans, which, as noted above,
included the additional criteria of protecting the 17 incumbents. Dr. Chen stated that, in
establishing the additional criteria, no consideration was given to the identities or party
affiliations of the incumbents. Id. at 208. One of the Simulation Set 2 plans, “Chen
Figure 1A: Example of a Simulated Districting Plan from Simulation Set 2 (Adhering to
Traditional Districting Criteria And Protecting 17 Incumbents)” (hereinafter “Simulated
Plan 1A”), which was introduced as Petitioners’ Exhibit 7, resulted in only 15 counties
being split into multiple congressional districts, as compared to the 28 counties that are
split into multiple districts under the 2011 Plan. Id. at 213. Referring to Petitioners’
Exhibit 8, titled “Chen Figure 6: Simulation Set 2: 500 Simulated Plans Following
Traditional Districting Criteria and Protecting 17 Incumbents,” Dr. Chen further observed
that the 2011 Plan split more municipalities (68) than any of the Simulated Set 2 plans,
which resulted in a range of splits between 50 and 66. Based on this data, Dr. Chen
opined:
We’re able to conclude from [Petitioners’ Exhibit 8] that the
[2011 Plan] subordinate[s] the traditional districting criteria of
avoiding county splits and avoiding municipal splits and the
subordination of those criteria was not somehow justified or
explained or warranted by an effort to protect 17 incumbents
in an nonpartisan manner. To put that in layman’s terms, an
effort to protect incumbents would not have justified splitting
up as many counties and as many municipalities as we saw
split up in the [2011 Plan].
Id. at 217.
With respect to geographic compactness, Dr. Chen explained that Simulated
Plan 1A had an average Reock Compactness Score of .396, as compared to the 2011
Plan’s score of .278, and Simulated Plan 1A had a Popper-Polsby Compactness Score
[J-1-2018] - 43
of .273, as compared to the 2011 Plan’s score of .164. Id. at 214; Petitioners’ Exhibit 7.
Based on an illustration of the mean Popper-Polsby Compactness Score and the mean
Reock Compactness Score for each of the 500 Simulation Set 2 plans, as compared to
the 2011 Plan, see Petitioners’ Exhibit 9 (“Chen Figure 7: Simulation Set 2: 500
Simulated Plans Following Traditional Districting Criteria and Protecting 17
Incumbents”), Dr. Chen concluded that the 2011 Plan “significantly subordinated [the]
traditional districting criteria of geographic compactness and that subordination of
geographic compactness of districts was not somehow justified or necessitated or
explained by a hypothetical effort to protect 17 incumbents.” N.T. Trial, 12/11/17, at
220.
Dr. Chen also testified regarding the partisan breakdown of the 2011 Plan. Dr.
Chen explained that he requested and obtained from the Department of State the actual
election data for each voting precinct in Pennsylvania for the six 2008 and 2010
statewide elections. Id. at 185-86. Those elections included the elections for the
President, Attorney General, Auditor General, and State Treasurer in 2008, and the
United States Senate election and the state gubernatorial election in 2010. Id. at 187.
The election data obtained by Dr. Chen indicated how many votes were cast for each
party candidate. Id. at 189. By overlaying the precinct-level election results on top of
the geographic boundaries as shown on a particular map, he was able to determine
whether a particular district had more Republican or Democratic votes during the
elections. Id. at 196-97. Those districts that had more Republican votes would,
naturally, be classified as Republican.
Dr. Chen observed that, under the 2011 Plan, 13 of the 18 congressional districts
are classified as Republican. Id. at 198. However, when Dr. Chen overlaid the
precinct-level election results on Simulated Plan 1, only 9 of the 18 congressional
[J-1-2018] - 44
districts would be classified as Republican. Id. at 197. Indeed, in the 500 Simulation
Set 1 plans, the highest number of classified Republican districts was 10, and in none of
the simulated plans would 13 of the congressional districts be classified as Republican.
Id. at 200. Based on this data, Dr. Chen stated “I’m able to conclude with well-over 99.9
percent statistical certainty that the [2011 Plan’s] creation of a 13-5 Republican
advantage in Pennsylvania’s Congressional delegation is an outcome that would never
have emerged from a districting process adhering to and following traditional districting
principles.” Id. at 203-04.
Moreover, Dr. Chen testified that, even under the Simulation Set 2 plans, which
took into account preservation of incumbent candidates, none of the 500 plans resulted
in a Republican District/Democratic District ratio of more than 10 to 8. Id. at 221-22;
Petitioners’ Exhibit 10. Based on a comparison of the 2011 Plan and his simulated
redistricting plans, Dr. Chen determined that “partisan intent predominated the drawing
of the [2011 Plan] . . . and the [2011 Plan] was drawn with a partisan intent to create a
13-5 Republican advantage and that this partisan intent subordinated traditional
districting principles in the drawing of the enacted plan.” Id. at 166.
Dr. Chen was asked to consider whether the partisan breakdown of the 2011
Plan might be the result of a “hypothetical effort to produce a certain racial threshold of
having one district of over a 56.8 percent African-American voting-age population.” Id.
at 245.46 To answer this question, Dr. Chen explained that he analyzed the 259
computer-simulated plans from Simulation Sets 1 and 2 that included a congressional
voting district with an African-American voting age population of at least 56.8%. Dr.
46
Under the 2011 Plan, the only congressional district with an African-American voting-
age population of more than 50% is the 2nd Congressional District, which includes areas
of Philadelphia; the African-American voting-age population for that district is 56.8%.
N.T. Trial, 12/11/17, at 239.
[J-1-2018] - 45
Chen testified that, of those 259 simulated plans, none resulted in a Republican-
Democrat congressional district ratio of 13 to 5. Id. at 244-45, 250. Indeed, of the
Simulated Set 1 plans, which did not take into account protection of incumbents, the
maximum ratio was 9 to 9, and of the Simulated Set 2 plans, which did protect
incumbents, the maximum ratio was 11 to 8, and, in one case, was as low as 8 to 11.
Id.; Petitioners’ Exhibit 15 (“Chen Figure 10”). Dr. Chen concluded “the 13-5
Republican advantage of the enacted map is an outcome that is not plausible, even if
one is only interested in plans that create one district with over 56.8 percent African-
American voting-age population.” N.T. Trial, 12/11/17, at 245.
Dr. Chen also was asked whether the 13-5 Republican advantage in the 2011
Plan could be explained by political geography – that is, the geographic patterns of
political behavior. Id. at 251. Dr. Chen explained that political geography can create
natural advantages for one party over another; for example, he observed that, in
Florida, Democratic voters are often “far more geographically clustered in urban areas,”
whereas Republicans “are much more geographically spaced out in rural parts” of the
state, resulting in a Republican advantage in control over districts and seats in the state
legislature. Id. at 252-53.
In considering the impact of Pennsylvania’s political geography on the 2011 Plan,
Dr. Chen explained that he measured the partisan bias of the 2011 Plan by utilizing a
common scientific measurement referred to as the mean-median gap. Id. at 257. To
calculate the mean, one looks at the average vote share per party in a particular district.
Id. To calculate the median, one “line[s] up” the districts from the lowest to the highest
vote share; the “middle best district” is the median. Id. at 258. The median district is
the district that either party has to win in order to win the election. Id. Dr. Chen testified
that, under the 2011 Plan, the Republican Party has a mean vote share of 47.5%, and a
[J-1-2018] - 46
median vote share of 53.4%. Id. at 261; Petitioners’ Exhibit 1, at 20. This results in a
mean-median gap of 5.9%, which, according to Dr. Chen, indicates that, under the 2011
Plan, “Republican votes . . . are spread out in a very advantageous manner so as to
allow -- in a way that would allow the Republicans to more easily win that median
district.” N.T. Trial, 12/11/17, at 259. The converse of this mean-median gap result is
that Democratic voters “are very packed into a minority of the districts, which they win
by probably more comfortable margins,” which makes it “much harder for Democrats
under that scenario to be able to win the median district. So, in effect, what that means
is it’s much harder for the Democrats to be able to win a majority of the Congressional
delegation.” Id. at 260.
Dr. Chen recognized that “Republicans clearly enjoy a small natural geographic
advantage in Pennsylvania because of the way that Democratic voters are clustered
and Republican voters are a bit more spread out across different geographies of
Pennsylvania.” Id. at 255. However, Dr. Chen observed that the range of mean/median
gaps created in any of the Simulated Set 1 plans was between “a little over 0 percent to
the vast majority of them being under 3 percent,” with a maximum of 4 percent. Id. at
262-63; Petitioners’ Exhibit 16 (“Chen Figure 5”). Dr. Chen explained that this is a
“normal range,” and that a 6% gap “is a very statistically extreme outcome that cannot
be explained by voter geography or by traditional districting principles alone.” N.T. Trial,
12/11/17, at 263-64. Dr. Chen noted that the range of mean/median gaps created by
any of the Simulated Set 2 plans also did not approach 6%, and, thus, that the 2011
Plan’s “extreme partisan skew of voters is not an outcome that naturally emerges from
Pennsylvania’s voter geography combined with traditional districting principles and an
effort to protect 17 incumbents in a nonpartisan manner. It’s not a plausible outcome
given those conditions.” Id. at 266; Petitioners’ Exhibit 17 (“Chen Figure 9”).
[J-1-2018] - 47
In sum, Dr. Chen “statistically conclude[d] with extremely high certainty . . . that,
certainly, there is a small geographic advantage for the Republicans, but it does not
come close to explaining the extreme 13-5 Republican advantage in the [2011 Plan].”
N.T. Trial, 12/11/17, at 255-56.
Ultimately, the Commonwealth Court found Dr. Chen’s testimony credible;
specifically, the court held that Dr. Chen’s testimony “established that the General
Assembly included factors other than nonpartisan traditional districting criteria in
creating the 2011 Plan in order to increase the number of Republican-leaning
congressional voting districts.” Findings of Fact at ¶ 309. The court noted, however,
that Dr. Chen’s testimony “failed to take into account the communities of interest when
creating districting plans,” and “failed to account for the fact that courts have held that a
legislature may engage in some level of partisan intent when creating redistricting
plans.” Id. at ¶¶ 310, 311.
Dr. John Kennedy
Petitioners next presented the testimony of Dr. John Kennedy, an expert in the
area of political science, specializing in the political geography and political history of
Pennsylvania, who is a professor of political science at West Chester University. Dr.
Kennedy testified that he analyzed the 2011 Plan “to see how it treated communities of
interest, whether there were anomalies present, whether there are strangely designed
districts, whether there are things that just don’t make sense, whether there are
tentacles, whether there are isthmuses, whether there are other peculiarities.” N.T.
Trial, 12/12/17, at 580. Dr. Kennedy also explained several concepts used to create a
gerrymandered plan. For example, he described that “cracking” is a method by which a
particular party’s supporters are separated or divided so they cannot form a larger,
cohesive political voice. Id. at 586. Conversely, “packing” is a process by which
[J-1-2018] - 48
individual groups who reside in different communities are placed together based on their
partisan performance, in an effort to lessen those individuals’ impact over a broader
area. Id. Finally, Dr. Kennedy defined “highjacking” as the combining of two
congressional districts, both of which have the majority support of one party – the one
not drawing the map – thereby forcing two incumbents to run against one another in the
primary election, and automatically eliminating one of them. Id. at 634.
When asked specifically about the 2011 Plan, Dr. Kennedy opined that the 2011
Plan “negatively impacts Pennsylvania’s communities of interest to an unprecedented
degree and contains more anomalies than ever before.” Id. at 579. For example, Dr.
Kennedy noted that Erie County, in the 3rd Congressional District, is split under the
2011 Plan for “no apparent nonpartisan reason,” when it had never previously been
split. Id. at 591. According to Dr. Kennedy, Erie County is a historically Democratic
county, and, in splitting the county, the legislature “cracked” it, diluting its impact by
pushing the eastern parts of the county into the rural and overwhelmingly Republican 5th
Congressional District. Id. at 597; see Petitioners’ Exhibit 73.
Dr. Kennedy next addressed the 7th Congressional District, which he noted “has
become famous certainly systemwide, if not nationally, as one of the most
gerrymandered districts in the country,” earning the nickname “the Goofy kicking Donald
district.” N.T. Trial, 12/11/17, at 598-99; see Joint Exhibit 12. According to Dr.
Kennedy, the 7th Congressional District was historically based in southern Delaware
County; under the 2011 Plan, it begins in Delaware County, moves north into
Montgomery County, then west into Chester County, and finally, both north into Berks
County and south into Lancaster County. At one point, along Route 30, the district is
contiguous only by virtue of a medical facility, N.T. Trial, 12/11/17, at 600-01; at another
point, in King of Prussia, it remains connected by a single steak and seafood restaurant.
[J-1-2018] - 49
Id. at 604. Dr. Kennedy further observed that the 7th Congressional District contains 26
split municipalities. Id. at 615.
Dr. Kennedy offered the 1st Congressional District as an example of a district
which has been packed. Id. at 605; see Petitioners’ Exhibit 70. He described that the
1st Congressional District begins in Northeast Philadelphia, an overwhelmingly
Democratic district, and largely tracks the Delaware River, but occasionally reaches out
to incorporate other Democratic communities, such as parts of the city of Chester and
the town of Swarthmore. N.T. Trial, 12/11/17, at 605-08.
Dr. Kennedy also discussed the 4th Congressional District, as shown in
Petitioners’ Exhibit 75, observing that the district is historically “a very Republican
district.” Id. at 631. In moving the northernmost tip of the City of Harrisburg, which is
predominantly a Democratic city, to the 4th Congressional District from the district it
previously shared with central Pennsylvania and the Harrisburg metro area, which are
part of the same community of interest, the 2011 Plan has diluted the Democratic vote
in Harrisburg. Id. at 631-32.47
In sum, Dr. Kennedy concluded that the 2011 Plan “gives precedence to political
considerations over considerations of communities of interest and disadvantages
Democratic voters, as compared to Republican voters. This is a gerrymandered map.”
Id. at 644. The Commonwealth Court found Dr. Kennedy’s testimony credible.
However, it concluded that Dr. Kennedy “did not address the intent behind the 2011
Plan,” and it specifically “disregarded” Dr. Kennedy’s opinion that the 2011 Plan was an
unconstitutional gerrymander as an opinion on the ultimate question of law in this case.
Findings of Fact at ¶¶ 339-41.
47
Dr. Kennedy’s testimony was not limited to discussion of the four specific
congressional districts discussed herein.
[J-1-2018] - 50
Dr. Wesley Pegden
Petitioners next presented the testimony of Dr. Wesley Pegden, an expert in the
area of mathematical probability, and professor of mathematical sciences at Carnegie
Mellon University. Dr. Pegden testified that he evaluated the 2011 Plan to determine
whether it “is an outlier with respect to partisan bias and, if so, if that could be explained
by the interaction of political geography and traditional districting criteria in
Pennsylvania.” N.T. Trial, 12/13/17, at 716-17. In evaluating the 2011 Plan, Dr.
Pegden utilized a computer algorithm that starts with a base plan − in this case, the
2011 Plan − and then makes a series of small random changes to the plan. Dr. Pegden
was able to incorporate various parameters, such as maintaining 18 contiguous
districts, maintaining equal population, and maintaining compactness. Id. at 726. Dr.
Pegden then noted whether the series of small changes resulted in a decrease in
partisan bias, as measured by the mean/median. Id. at 722-23.
The algorithm made approximately 1 trillion computer-generated random
changes to the 2011 Plan, and, of the resulting plans, Dr. Pegden determined that
99.999999% of them had less partisan bias than the 2011 Plan. Id. at 749; Petitioners’
Exhibit 117, at 1. Based on this data, Dr. Pegden concluded the General Assembly
“carefully crafted [the 2011 Plan] to ensure a Republican advantage.” Petitioners’
Exhibit 117, at 1. He further testified the 2011 Plan “was indeed an extreme outlier with
respect to partisan bias in a way that could not be explained by the interaction of
political geography and the districting criteria” that he considered. N.T. Trial, 12/13/17,
at 717.
The Court found Dr. Pegden’s testimony to be credible; however, it noted that,
like Dr. Chen’s testimony, his testimony did not take into account “other districting
considerations, such as not splitting municipalities, communities of interest, and some
[J-1-2018] - 51
permissible level of incumbent protection and partisan intent.” Findings of Fact at ¶¶
360-61. Further, as with Dr. Kennedy, the Commonwealth Court “disregarded” Dr.
Pegden’s opinion that the 2011 Plan was an unconstitutional gerrymander as an opinion
on a question of law. Id. at ¶ 363.
Dr. Christopher Warshaw
Petitioners next presented the testimony of Dr. Christopher Warshaw, an expert
in the field of American politics – specifically, political representation, public opinion,
elections, and polarization – and professor of political science at George Washington
University. Dr. Warshaw testified that he was asked to evaluate the degree of partisan
bias in the 2011 Plan, and to place any such bias into “historical perspective.” N.T.
Trial, 12/13/17, at 836.
Dr. Warshaw suggested that the degree of partisan bias in a redistricting plan
can be measured through the “efficiency gap,” which is a formula that measures the
number of “wasted” votes for one party against the number of “wasted” votes for
another party. Id. at 840-41. For a losing party, all of the party’s votes are deemed
wasted votes. For a winning party, all votes over the 50% needed to win the election,
plus one, are deemed wasted votes. The practices of cracking and packing can be
used to create wasted votes. Id. at 839. He explained that, in a cracked district, the
disadvantaged party loses narrowly, wasting a large number of votes without winning a
seat; in a packed district, the disadvantaged party wins overwhelmingly, again, wasting
a large number of votes. Id. at 839-40. To calculate the efficiency gap, Dr. Warshaw
calculates the ratio of a party’s wasted votes over the total number of votes cast in the
election, and subtracts one party’s ratio from the ratio for the other party. The larger the
number, the greater the partisan bias. For purposes of evaluating the 2011 Plan, Dr.
Warshaw explained that an efficiency gap of a negative percentage represents a
[J-1-2018] - 52
Republican advantage, and a positive percentage represents a Democratic advantage.
Id. at 842. (The decision of which party’s gap is deemed negative versus positive – the
scale’s polarity – is arbitrary. Id. at 854.) He summed up the approach as follows:
The efficiency gap is just a way of translating this intuition
that what gerrymandering is ultimately about is efficiently
translating votes into seats by wasting as many of your
opponent's supporters as possible and as few as possible --
as possible of your own. So it's really just a formula that
captures this intuition that that's what gerrymandering is at
its core.
Id. at 840.
Dr. Warshaw testified that, historically, in states with more than six congressional
districts, the efficiency gap is close to 0%. An efficiency gap of 0% indicates no partisan
advantage. Id. at 864. He explained that 75% of the time, the efficiency gap is between
10% and negative 10%, and, less than 4% of the time, the efficiency gap is outside the
range of 20% and negative 20%. Id. at 865.
In analyzing the efficiency gap in Pennsylvania for the years 1972 through 2016,
Dr. Warshaw discovered that, during the 1970s, there was “a very modest” Democratic
advantage, but that the efficiency gap was relatively close to zero. Id. at 870; see
Petitioner’s Exhibit 40. In the 1980s and 90s, the efficiency gap indicated no partisan
advantage for either party. Id. Beginning in 2000, there was a “very modest Republican
advantage,” but the efficiency gaps “were never very far from zero.” Id. at 870-71.
However, in 2012, the efficiency gap in Pennsylvania was negative 24%, indicating that
“Republicans had a 24-percentage-point advantage in the districting process.” Id. at
871. In 2014, “Republicans continued to have a large advantage in the districting
process with negative 15 percent,” and, in 2016, Republicans “continued to have a very
large and robust” advantage with an efficiency gap of negative 19%. Id.
[J-1-2018] - 53
Dr. Warshaw confirmed that, prior to the 2011 Plan, Pennsylvania never had an
efficiency gap of 15% in favor of either party, and only once had there been an
efficiency gap of even 10%. Id. at 872. Thus, Dr. Warshaw concluded that the
efficiency gaps that occurred after the 2011 Plan were “extreme” relative to the prior
plans in Pennsylvania. Id. Indeed, he noted that the efficiency gap in Pennsylvania in
2012 was the largest in the country for that year, and was the second largest efficiency
gap in modern history “since one-person, one-vote went into effect in 1972.” Id. at 874.
The impact of an efficiency gap between 15% and 24%, according to Dr. Warshaw,
“implies that Republicans won an average of three to four extra Congressional seats
each year over this timespan.” Id. at 873.
When asked to consider whether geography may have contributed to the large
efficiency gap in Pennsylvania, Dr. Warshaw stated, “it’s very unlikely that some change
in political geography or some other aspect of voting behavior would have driven this
change. This change was likely only due to the districts that were put in place.” Id. at
879. With regard to the change in the efficiency gap between the 2010 and 2012
elections, Dr. Warshaw opined that “there’s no possible change in political geography
that would lead to such a dramatic shift.” Id. Dr. Warshaw further concluded that “the
efficiency gaps that occured immediately after the 2011 Redistricting Plans went into
place are extremely persistent,” and are unlikely to be remedied by the “normal electoral
process.” Id. at 890-91.
In addition to his testimony regarding the efficiency gap, Dr. Warshaw discussed
the concept of polarization, which he defined as the difference in voting patterns
[J-1-2018] - 54
between Democrats and Republicans in Congress, id. at 903, and the impact of partisan
gerrymandering on citizens’ faith in government. Id. at 953.48
The Commonwealth Court found Dr. Warshaw’s testimony to be credible,
particularly with respect to the existence of an efficiency gap in Pennsylvania.
Nevertheless, the court opined that the full meaning and effect of the gap “requires
some speculation and does not take into account some relevant considerations, such as
quality of candidates, incumbency advantage, and voter turnout.” Findings of Fact at ¶
389. The court expressed additional concerns that the efficiency gap “devalues
competitive elections,” in that even in a district in which both parties have an equal
chance of prevailing, a close contest will result in a substantial efficiency gap in favor of
the prevailing party. Id. at ¶ 390. Finally, the court concluded that Dr. Warshaw’s
comparison of the efficiency gap in Pennsylvania and other states was of limited value,
as it failed to take into consideration whether there were state differences in methods
and limitations for drawing congressional districts. Id. at 89-90 ¶ 391.49
48
A detailed explanation of this aspect of his testimony is unnecessary for purposes of
this Opinion.
49
Following the presentation of Dr. Warshaw’s testimony, Petitioners requested
permission to admit into the record several documents, including: Petitioners’ Exhibit
124 (Declaration of Stacie Goede, Republican State Leadership Conference);
Petitioners’ Exhibit 126 (Redistricting 2010 Preparing for Success); Petitioners’ Exhibit
127 (RSLC Announces Redistricting Majority Project (REDMAP); Petitioners’ Exhibit
128 (REDistricting MAjority Project); Petitioners’ Exhibit 129 (REDMAP Political Report:
July 2010); Petitioners’ Exhibit 131 (REDMAP 2012 Summary Report); Petitioners’
Exhibit 132 (REDMAP Political Report: Final Report); Petitioners’ Exhibit 133 (2012
RSLC Year in Review); Petitioners’ Exhibit 134 (REDMAP fundraising letter); and
Petitioners’ Exhibit 140 (“Map-CD18 Maximized”). As noted above, the Commonwealth
Court sustained Respondents’ objections to the admission of these documents, but
admitted them under seal “for the sole purpose of . . . allowing the Supreme Court to
revisit my evidentiary ruling if it so chooses.” N.T. Trial, 12/13/17, at 1061; see id. at
1070. Petitioners also moved for the admission of Exhibits 27, 28, 29, 30, 31, and 33.
The court refused to admit Exhibits 27, 28, 29, 30, and 31, and reiterated that it had
(continued…)
[J-1-2018] - 55
Dr. Wendy K. Tam Cho
In response to the testimony offered by Petitioners, Legislative Respondents
presented the testimony of their own experts, beginning with Wendy K. Tam Cho, Ph.D.,
a professor at the University of Illinois, who was certified as an expert in the areas of
political science with a focus on political geography, redistricting, American elections,
operations research, statistics, probability, and high-performance computing; she was
called to rebut Dr. Chen’s and Dr. Pegden’s testimony. N.T. Trial, 12/14/17, at 1132.
Dr. Cho opined that, based upon her review of one of Dr. Chen’s prior papers, she
believed that his methodology was a flawed attempt at a Monte Carlo simulation – i.e., a
flawed attempt to use random sampling to establish the probability of outcomes.
Specifically, Dr. Cho explained that Dr. Chen’s methodology was flawed because,
although his algorithm randomly selected an initial voting district from which to compile
a redistricting plan, it subsequently followed a determined course in actually compiling it,
thereby undermining its ability to establish probabilistic outcomes. Id. at 1137-38. Dr.
Cho also criticized Dr. Chen’s algorithm on, inter alia, the basis that it had not been
academically validated, id. at 1170-73; that many or all of the alternative plans failed to
include all legally applicable and/or traditional redistricting principles “as [she]
understand[s] them,” id. at 1176; and that the algorithm generated too small a sample
size of alternative plans to establish probabilistic outcomes. Id. at 1181-85.
Dr. Cho testified that, based upon her review of Dr. Pegden’s published work,
she believed his methodology too was flawed, in that it failed to incorporate ordinary
(…continued)
previously ruled on Exhibit 33 and held it was not admissible. Id. at 1077. The court
also refused to admit Exhibits 135, 136, 137, 138, 139, and 141-161. Id. at 1083.
[J-1-2018] - 56
redistricting criteria such as avoiding municipal splits and protecting incumbents. Id. at
1219.
Notably, however, Dr. Cho conceded that she did not actually review either Dr.
Chen’s or Dr. Pegden’s algorithms or codes, id. at 1141, 1296, and both Dr. Pegden
and Dr. Chen testified on rebuttal that the bulk of Dr. Cho’s assumptions regarding their
methodology – and, thus, derivatively, her criticisms thereof – were erroneous. Id. at
1368-95; N.T. Trial, 12/15/17, at 1650-75. Ultimately, the Commonwealth Court found
Dr. Cho’s testimony incredible “with regard to her criticisms of the algorithms used by
Dr. Chen and Dr. Pegden, but credible with regard to her observation that Dr. Pegden’s
algorithm failed to avoid municipal splits and did not account for permissible
incumbency protection.” Findings of Fact at ¶ 398. Nevertheless, the court found Dr.
Cho’s testimony did not lessen the weight of either Dr. Chen’s conclusion that
adherence to what he viewed as traditional redistricting criteria could not explain the
2011 Plan’s partisan bias, or Dr. Pegden’s conclusion that the 2011 Plan is a statistical
outlier as compared to maps with nearly identical population equality, contiguity,
compactness, and number of county splits. Id. at ¶¶ 399-400. The court also
concluded that Dr. Cho offered no meaningful guidance as to an appropriate test for
determining the existence of an unconstitutional partisan gerrymander. Id. at ¶ 401.
Dr. Nolan McCarty
Respondents also presented the testimony of Dr. Nolan McCarty, an expert in
the area of redistricting, quantitative election and political analysis, representation and
legislative behavior, and voting behavior, and professor of politics and public affairs at
Princeton University. Dr. McCarty was asked to comment on the expert reports of Dr.
Chen and Dr. Warshaw. Dr. McCarty explained that he analyzed whether the 2011
Plan resulted in a partisan bias by calculating the partisan voting index (“PVI”) of each
[J-1-2018] - 57
congressional district. N.T. Trial, 12/15/17, at 1421. The PVI is calculated by taking the
presidential voting returns in a congressional district for the previous two elections,
subtracting the national performance of each political party, and then calculating the
average over those two elections. Id. Utilizing the PVI, Dr. McCarty opined that there
was no evidence of a partisan advantage to the Republican Party under the 2011 Plan.
Id. at 1489-90. He further suggested that, under the 2011 Plan, the Democratic Party
should have won 8 of the 18 congressional seats, and that its failure to do so was the
result of other factors, including candidate quality, incumbency, spending, national tides,
and trends within the electorate. Id. at 1447-48.
Dr. McCarty criticized Dr. Chen’s method of calculating the partisan performance
of a district, opining that it is an imperfect predictor of how a district will vote in
congressional elections. Id. at 1458-76. However, Dr. Chen addressed Dr. McCarty’s
criticisms on rebuttal, id. at 1675-701, “to the satisfaction of the Court.” Findings of Fact
at ¶ 407.
Dr. McCarty also criticized Dr. Warshaw’s reliance on the efficiency gap as an
indicator of gerrymandering, contending (1) that the efficiency gap does not take into
consideration partisan bias that results naturally from geographic sorting; (2) that
proponents of the efficiency gap have not developed principled ways of determining
when an efficiency gap is too large to be justified by geographic sorting; and (3) close
elections can have an effect on the calculation of efficiency gaps. N.T. Trial, 12/15/17,
at 1484; see also Legislative Respondents’ Exhibit 17 at 18-20. He further suggested
there are many components to wasted votes that are not related to partisan districting.
N.T. Trial, 12/15/17, at 1483-84. Finally, Dr. McCarty criticized Dr. Warshaw’s
testimony regarding the effect gerrymandering has on the polarization of political
parties. Id. at 1477-82.
[J-1-2018] - 58
The Commonwealth Court found Dr. McCarty’s testimony not credible with
regard to his criticism of Dr. Chen’s report; indeed, the court concluded that “the
methodology employed by Dr. Chen to calculate partisan performance appears to have
been a reliable predictor of election outcomes in Pennsylvania since the enactment of
the 2011 Plan.” Findings of Fact at ¶ 409. Moreover, the Commonwealth Court
observed that “Dr. Chen’s methodology resulted in accurate predictions for 54 out of 54
congressional elections under the 2011 Plan.” Id.
With regard to Dr. Warshaw’s expert report, the Commonwealth Court likewise
determined that Dr. McCarty’s criticisms were not credible to the extent he (1) disagreed
that gerrymandering does not exacerbate problems associated with polarization, and (2)
suggested that cracking and packing may actually benefit voters. Id. at ¶ 410. The
court further rejected as incredible Dr. McCarty’s criticism of Dr. Warshaw’s reliance on
the efficiency gap, noting that “Dr. Warshaw accounted for some geographic sorting in
his analysis of the efficiency gap and did not dispute that close elections can impact the
calculation of an efficiency gap.” Id. Although the court credited Dr. McCarty’s
testimony that proponents of the efficiency gap have not developed principled methods
of determining when an efficiency gap is so large it necessarily evidences partisan
gerrymandering, and that wasted votes are not always the result of partisan districting,
the Commonwealth Court concluded that Dr. McCarty’s testimony did not lessen (1) “the
weight given to Dr. Chen’s testimony that the 2011 Plan is an outlier with respect to its
partisan advantage,” or (2) “the weight given to Dr. Warshaw’s testimony that an
efficiency gap exists in Pennsylvania.” Id. at ¶¶ 411-12. The court also concluded that
Dr. McCarty offered no guidance as to the appropriate test for determining when a
legislature’s use of partisan considerations results in unconstitutional gerrymandering.
Id. at ¶ 413.
[J-1-2018] - 59
B. Conclusions of Law of the Commonwealth Court
After setting forth its findings of fact, the Commonwealth Court offered
recommended conclusions of law. Preliminarily, the court explained that the federal
Constitution requires that seats in the United States House of Representatives be
reapportioned decennially among the states according to their populations as
determined in the census, and commits post-reapportionment redistricting to the states’
legislatures, subject to federal law. Conclusions of Law at ¶¶ 1-2 (quoting the federal
Elections Clause). The court reasoned that, in Pennsylvania, although the General
Assembly in performing post-reapportionment redistricting is subject to federal
restrictions – e.g., the requirement that districts be as equal in population as possible
and the requirements of the Voting Rights Act of 1965 – it is largely free from state
restrictions, as its task is not subject to explicit, specific, constitutional or statutory
requirements.50 The Commonwealth Court intimated that, although a party’s claim that
a legislative redistricting plan is unconstitutional on the ground that it is a partisan
gerrymander is justiciable under federal and state law, id. at ¶ 10 (citing Davis v.
Bandemer, 478 U.S. 109, 124-27 (1986);51 Erfer v. Commonwealth, 794 A.2d 325, 331
50
The court contrasted the General Assembly’s freedom in this regard with the
Legislative Reapportionment Commission’s relatively lesser freedom in performing state
legislative redistricting, which, as noted above, is governed by Article II, Section 16 of
the Pennsylvania Constitution; political subdivisions’ lesser freedom in performing
political-subdivision redistricting, which is governed by Article IX, Section 11 of the
Pennsylvania Constitution; and other states’ lesser freedom in performing congressional
redistricting subject to their own state restrictions, see Conclusions of Law at ¶ 7 (citing,
as an example, Va. Const. art. II, § 6 (requiring Virginia’s Congressional districts to be
contiguous and compact)).
51
Actually, such a claim’s justiciability under federal law is, at best, unclear. In
Bandemer, the United States Supreme Court held that such claims are justiciable under
the Equal Protection Clause, but was unable to agree on an adjudicative standard.
However, in Vieth, the court revisited the issue, and a four-Justice plurality indicated
they would overrule Bandemer’s holding, with an equal number of Justices indicating
they would reaffirm it, although they remained unable to agree on an adjudicative
(continued…)
[J-1-2018] - 60
(Pa. 2002)), it is insufficient to allege that a redistricting plan employs partisan or
political classifications per se: rather, a party must demonstrate that the plan employs
excessive partisan or political classifications, see id. at ¶¶ 10-15 (citing, inter alia, Vieth,
supra, at 307 (Kennedy, J., concurring) (opining that such a claim predicated on
partisan or political classifications per se is nonjusticiable, but that one predicated on
the allegation that “the [partisan or political] classifications . . . were applied in an
invidious manner or in a way unrelated to any legitimate legislative objective” might be
justiciable); Erfer, 794 A.2d at 334 (describing such a claim’s justiciability as “not
amenable to judicial control or correction save for the most egregious abuses.”); Holt v.
2011 Legislative Reapportionment Comm’n, 38 A.3d 711, 745 (Pa. 2012) (“Holt I”)
(acknowledging, in the context of state legislative redistricting, that redistricting “has an
inevitably legislative, and therefore an inevitably political, element,” but indicating that
constitutional requirements function as a “brake on the most overt of potential excesses
and abuse”)). The court noted that Petitioners, insofar as they are challenging the 2011
Plan’s constitutionality, bear the burden of proving its unconstitutionality, and that it is
insufficient for them to demonstrate that a better or fairer plan exists; rather, they must
demonstrate that the 2011 Plan clearly, plainly, and palpably violates constitutional
(…continued)
standard. See Vieth, 541 U.S. at 270-306 (plurality opinion) (Scalia, J., joined by
Rehnquist, C.J., O’Connor, J., and Thomas, J.); id. at 317 (Stevens, J. dissenting); id. at
342-55 (Souter, J., joined by Ginsburg, J., dissenting); id. at 355-68 (Breyer, J.,
dissenting). Justice Kennedy, concurring in the judgment, agreed with the plurality that
the claim at bar was nonjusticiable, insofar as he viewed some political partisan or
political classifications as permissible and, largely due to that circumstance, could not
glean an appropriate adjudicative standard, but declined to foreclose future claims for
which he expressed optimism that such a standard might be determined. See id. at
308-17 (Kennedy, J., concurring in the judgment).
[J-1-2018] - 61
requirements. See id. at ¶ 16 (citing, inter alia, Singer v. Sheppard, 346 A.2d 897, 900
(Pa. 1975)).
Turning to Petitioners’ claims, the Commonwealth Court first rejected Petitioners’
argument that the 2011 Plan violated their rights to free speech pursuant to Article I,
Section 7 of the Pennsylvania Constitution and free assembly pursuant to Article I,
Section 20 of the Pennsylvania Constitution. The court acknowledged that these
provisions predate the First Amendment to the United States Constitution, and that,
although their interpretation is often guided by analogy to First Amendment
jurisprudence, they provide broader protection of individual freedom of speech and
association. The court cited its decision in Working Families Party v. Commonwealth,
169 A.3d 1247 (Pa. Cmwlth. 2017), for the proposition that, where a party challenges a
statute as violative of Article I, Sections 7 and 20, the fundamental adjudicative
framework is a means-ends test weighing “the character and magnitude of the burden
imposed by the [statute] against the interests proffered to justify that burden”:
specifically, “‘regulations imposing severe burdens on plaintiffs’ rights must be narrowly
tailored and advance a compelling state interest[;] [l]esser burdens, however, trigger
less exacting review, and a [s]tate’s important regulatory interests will usually be
enough to justify reasonable, nondiscriminatory restrictions.’” Conclusions of Law at ¶
25 (quoting Working Families Party, 169 A.3d at 1260-61 (internally quoting Timmons v.
Twin Cities Area New Party, 520 U.S. 351 (1997) (internal quotation marks omitted))).
The court then explained that this Court has recognized that the right to free speech
includes the right to free speech unencumbered by official retaliation:
To prove a claim of retaliation, a plaintiff must establish: (1)
the plaintiff was engaged in a constitutionally protected
activity; (2) the defendant’s action caused the plaintiff to
suffer an injury that would likely chill a person of ordinary
firmness from continuing to engage in that activity; and (3)
[J-1-2018] - 62
the adverse action was motivated at least in part as a
response to the exercise of the plaintiff’s constitutional rights.
Id. at ¶ 26 (quoting Uniontown Newspapers, Inc. v. Roberts, 839 A.2d 185, 198 (Pa.
2003) (internal citations and quotation marks omitted)).
Observing that no majority of the United States Supreme Court has yet
addressed a challenge to a redistricting plan as violative of the First Amendment and
that no Pennsylvania court has yet considered a challenge to a redistricting plan as
violative of Article I, Sections 7 and 20, the court remarked that Petitioners are not
precluded by the 2011 Plan from freely associating with any candidate or political party
or from voting. The court characterized Petitioners’ claims as actually seeking a
declaration that they are entitled to a redistricting plan “free of any and all partisan
considerations,” noting that such a right was “not apparent in the Pennsylvania
Constitution or in the history of gerrymandering decisions in Pennsylvania or throughout
the country,” and that both the United States Supreme Court and this Court have
previously acknowledged that partisan considerations may play some role in
redistricting. Id. at ¶¶ 27-38 (citing Vieth and Holt I).
The court then noted Justice Kennedy’s remarks in Vieth that courts must have
some judicially administrable standard by which to appraise partisan gerrymanders, and
found that Petitioners presented no such standard.52 Finally, assuming arguendo that
52
Later, the Commonwealth Court explained:
[s]ome unanswered questions that arise based on
Petitioners’ presentation include: (1) what is a
constitutionally permissible efficiency gap; (2) how many
districts must be competitive in order for a plan to pass
constitutional muster (realizing that a competitive district
would result in a skewed efficiency gap); (3) how is a
“competitive” district defined; (4) how is a “fair” district
defined; and (5) must a plan guarantee a minimum number
of congressional seats in favor of one party or another to be
constitutional.
(continued…)
[J-1-2018] - 63
Petitioners’ putative retaliation claim is cognizable under Pennsylvania law, the court
found that Petitioners failed to establish the same. Although conceding that Petitioners
were engaged in constitutionally-protected political activity, the court first found that they
failed to establish that the General Assembly caused them to suffer any injury that
would chill a person of ordinary firmness from continuing to engage in such activity,
essentially because they remained politically active:
With respect to the second element, Petitioners all continue
to participate in the political process. Indeed, they have
voted in congressional races since the implementation of the
2011 Plan. The Court assumes that each Petitioner is a
person of [at least] ordinary firmness.
Id. at ¶ 34.
The court also determined that Petitioners failed to establish that the General
Assembly’s adoption of the 2011 Plan was motivated in part as a response to
Petitioners’ participation in the political process, essentially reasoning that intent to gain
a partisan advantage over a rival faction is not equivalent to an intent to punish the
faction’s voters, that gleaning the intent of the General Assembly as a body was largely
impossible, and that the fact that some Democratic state representatives voted in favor
of the 2011 Plan undermined the notion that its intent was to punish Democratic voters:
With respect to the third element, Petitioners have similarly
failed to adduce evidence that the General Assembly passed
the 2011 Plan with any motive to retaliate against Petitioners
(or others who voted for Democratic candidates in any
particular election) for exercising their right to vote. . . .
Intent to favor one party’s candidates over another should
not be conflated with motive to retaliate against voters for
casting their votes for a particular candidate in a prior
election. There is no record evidence to suggest that in
(…continued)
Conclusions of Law at ¶ 61 n.24.
[J-1-2018] - 64
voting for the 2011 Plan, the General Assembly, or any
particular member thereof, was motivated by a desire to
punish or retaliate against Pennsylvanians who voted for
Democratic candidates. Indeed, it is difficult to assign a
singular and dastardly motive to a branch of government
made up of 253 individual members elected from distinct
districts with distinct constituencies and divided party
affiliations. . . .
On final passage of the 2011 Plan in the PA House, of the
197 members voting, 136 voted in the affirmative, with some
Republican members voting in the negative and 36
Democratic members voting in the affirmative. Given the
negative Republican votes, the 2011 Plan would not have
passed the PA House without Democratic support. The fact
that some Democrats voted in favor of the 2011 Plan further
militates against a finding or conclusion that the General
Assembly passed the 2011 Plan, in whole or in part, as a
response to actual votes cast by Democrats in prior
elections.
Id. at ¶¶ 35-37 (paragraph numbering omitted).
Next, the court rejected Petitioners’ argument that the 2011 Plan violated their
rights to equal protection pursuant to Article I, Sections 1 and 26 of the Pennsylvania
Constitution (the “Equal Protection Guarantee”) and their right to free and equal
elections pursuant to Article I, Section 5 of the Pennsylvania Constitution. The court
opined that, “[i]n the context of partisan gerrymandering, the Pennsylvania Supreme
Court has stated that the Equal Protection Guarantee is coterminous with the Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution,”
Conclusions of Law at ¶ 45 (citing Erfer, 794 A.2d at 332 (citing Love v. Borough of
Stroudsburg, 597 A.2d 1137, 1139 (Pa. 1991)); Kramer v. Workers’ Comp. Appeal Bd.
(Rite Aid Corp.), 883 A.2d 518, 532 (Pa. 2005); Zauflik v. Pennsbury Sch. Dist., 72 A.3d
[J-1-2018] - 65
773, 789 n. 24 (Pa. Cmwlth. 2013), aff’d, 104 A.3d 1096 (Pa. 2014); Doe v. Miller, 886
A.2d 310, 314 n.9 (Pa. Cmwlth. 2005), aff’d per curiam, 901 A.2d 495 (Pa. 2006)).53 54
The Commonwealth Court further opined that this Court has previously described
the Free and Equal Elections Clause as requiring that elections “are public and open to
all qualified electors alike;” that “every voter has the same right as any other voter;” that
“each voter under the law has the right to cast his ballot and have it honestly counted;”
that “the regulation of the right to exercise the franchise does not deny the franchise[;]”
and that “no constitutional right of the qualified elector is subverted or denied him[,]” but,
in the context of partisan gerrymandering, merely reiterates the protections of the Equal
53
The court further opined that Erfer was “consistent with decades of Pennsylvania
Supreme Court precedent holding that the ‘equal protection provisions of the
Pennsylvania Constitution are analyzed . . . under the same standards used by the
United States Supreme Court when reviewing equal protection claims under the
Fourteenth Amendment to the United States Constitution.’” Conclusions of Law at ¶ 45
(quoting Love, 597 A.2d at 1139; citing Commonwealth v. Albert, 758 A.2d 1149, 1151
(Pa. 2000); James v. SEPTA, 477 A.2d 1302, 1305 (Pa. 1984); Laudenberger v. Port
Auth. of Allegheny Cnty., 436 A.2d 147, 155 n.13 (Pa. 1981); Baltimore & Ohio R.R. Co.
v. Commonwealth, 334 A.2d 636, 643 (Pa. 1975)).
54
Notably, in Erfer, our determination that the Equal Protection Guarantee was to be
adjudicated as coterminous with the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution was predicated on Love, in which we
merely remarked that the Equal Protection Guarantee and Equal Protection Clause
involve the same jurisprudential framework – i.e., a means-ends test taking into account
a law’s use of suspect classification, burdening of fundamental rights, and its
justification in light of its objectives. See Erfer, 794 A.3d at 331-32; Love, 597 A.2d at
1139. The same was true in Kramer, where we remarked that we had previously
employed “the same standards applicable to federal equal protection claims” and that
the parties therein did not dispute “that the protections [were] coterminous[.]” Kramer,
883 A.2d at 532. Moreover, our affirmance in Zauflik was rooted in the parties’ failure to
conduct an analysis under Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991). See
Zauflik, 104 A.3d at 1117 n.10; infra note 53. Finally, concerning Doe, the issue was
not meaningfully litigated before the Commonwealth Court, and, in any event, this Court
affirmed its decision per curiam, rendering it of no salient precedential value in the
instant case. See Commonwealth v. Tilghman, 673 A.2d 898, 903-05 (Pa. 1996)
(noting that orders affirming a lower court’s decision, as opposed to its opinion, per
curiam should not be construed as endorsing its reasoning).
[J-1-2018] - 66
Protection Guarantee. Id. at ¶¶ 40 (citing In re 1991 Pa. Legislative Reapportionment
Comm’n, 609 A.2d 132 (Pa. 1992) (quoting City Council of City of Bethlehem v.
Marcincin, 515 A.2d 1320, 1323 (Pa. 1986)), and Erfer, 794 A.2d at 332).55
The court explained that, in In re 1991 Legislative Reapportionment Comm’n, this
Court adopted a standard suggested by a plurality of justices in Bandemer for
determining whether a redistricting plan was unconstitutional on the basis of partisan
gerrymandering:
A plaintiff raising a gerrymandering claim must establish that
there was intentional discrimination against an identifiable
political group and that there was an actual discriminatory
effect on that group. In order to establish discriminatory
effect, the plaintiff must show: (1) that the identifiable group
has been, or is projected to be, disadvantaged at the polls;
(2) that by being disadvantaged at the polls, the identifiable
group will lack political power and be denied fair
representation.
Conclusions of Law at ¶ 47 (internal quotation marks, citations, and brackets omitted).
The Commonwealth Court acknowledged that Bandemer’s and, with it, Erfer’s test, was
abrogated by Vieth as a matter of federal law, but, noting that this Court has not yet
specifically discarded it, nevertheless endeavored to apply it to Petitioners’ claim.
Although acknowledging that Petitioners had established intentional discrimination – in
that the General Assembly was likely aware of, and intended, the 2011 Plan’s political
consequences – the court determined that Petitioners could not establish that they
constituted an identifiable political group:
55
Notably, as discussed below, although we did reject in Erfer the suggestion that the
Free and Equal Elections Clause provided greater protection of the right to vote than the
Equal Protection Guarantee, our rejection was predicated on the lack of a persuasive
argument to that end. Erfer, 794 A.2d at 331-32.
[J-1-2018] - 67
In light of the standard articulated in Erfer, and based on the
evidence adduced at trial, Petitioners have established
intentional discrimination, in that the 2011 Plan was
intentionally drawn so as to grant Republican candidates an
advantage in certain districts within the Commonwealth. . . .
Although the 2011 Plan was drawn to give Republican
candidates an advantage in certain districts within the
Commonwealth, Petitioners have failed to meet their burden
of showing that the 2011 Plan equated to intentional
discrimination against an identifiable political group. . . .
Voters who are likely to vote Democratic (or Republican) in a
particular district based on the candidates or issues,
regardless of the voters’ political affiliation, are not an
identifiable political group for purposes of the Equal
Protection Guarantee under the Pennsylvania Constitution.
Id. at ¶¶ 51-53 (paragraph numbering omitted).
Moreover, the court found that Petitioners had failed to establish that they would
be disadvantaged at the polls or would lack political power or fair representation, noting
that they remain free to participate in democratic processes:
While Petitioners contend that Republican candidates who
prevail in congressional districts do not represent their
particular views on issues important to them and will
effectively ignore them, the Court refuses to make such a
broad finding based on Petitioners’ feelings. There is no
constitutional provision that creates a right in voters to their
elected official of choice. As a matter of law, an elected
member of Congress represents his or her district in its
entirety, even those within the district who do not share his
or her views. This Court will not presume that members of
Congress represent only a portion of their constituents
simply because some constituents have different priorities
and views on controversial issues. . . . At least 3 of the 18
congressional districts in the 2011 Plan are safe Democratic
seats. . . . Petitioners can, and still do, campaign for,
financially support, and vote for their candidate of choice in
every congressional election. . . . Petitioners can still
exercise their right to protest and attempt to influence public
opinion in their congressional district and throughout the
Commonwealth. . . . Perhaps most importantly, Petitioners
and likeminded voters from across the Commonwealth can
exercise their political power at the polls to elect legislators
and a Governor who will address and remedy any unfairness
[J-1-2018] - 68
in the 2011 Plan through the next reapportionment following
the 2020 U. S. Census.
Conclusions of Law at ¶ 56 (paragraph labeling omitted).56
Finally, in a post-script summary, the court reiterated its view that Petitioners had
failed to identify a judicially manageable standard for claims of partisan gerrymandering,
and noted that it predicated its conclusions of law on what it viewed as the “evidence
presented and the current state of the law,” acknowledging that there are matters
pending before the United States Supreme Court that might impact the applicable legal
framework. Id. at ¶ 65 (citing Gill v. Whitford, supra; Benisek v. Lamone No. 17-333
(U.S. jurisdictional statement filed Sept. 1, 2017)).
IV. Arguments
A. Petitioners and Aligned Respondents and Amici
We now address the arguments presented to this Court. We begin with
Petitioners, those Respondents arguing that Petitioners are entitled to relief, and
Petitioners’ supporting amici.
Petitioners first assert that the 2011 Plan violates the free expression and free
association clauses of the Pennsylvania Constitution, see Pa. Const. art. I, §§ 7, 20,
which, they highlight, pre-date the First Amendment and provide broader protections for
speech and associational rights than those traditionally recognized under the federal
Constitution. Consistent with that notion, Petitioners emphasize that, in contrast to
federal challenges to laws restricting the freedom of expression, which are assessed
under the rubric of intermediate scrutiny, courts apply the more exacting strict scrutiny
standard to challenges to such laws under the Pennsylvania Constitution. See
56
On the court’s last point, one imagines that Petitioners find cold comfort in their right
to protest and advocate for change in an electoral system that they allege has been
structurally designed to marginalize their efforts in perpetuity.
[J-1-2018] - 69
Petitioners’ Brief at 46-47 (citing Pap's A.M. v. City of Erie, 812 A.2d 591 (2002) (“Pap’s
II”)).
According to Petitioners, these broad protections under the Pennsylvania
Constitution’s Article I, Section 7 free expression clause necessarily extend to the act of
voting, as voting constitutes direct “personal expression of favor or disfavor for particular
policies, personalities, or laws,” Petitioners’ Brief at 47-48 (quoting Commonwealth v.
Cobbs, 305 A.2d 25, 27 (Pa. 1973)), and gives voters a firsthand opportunity to
“express their own political preferences.” Id. (quoting Norman v. Reed, 502 U.S. 279,
288 (1992)). Petitioners further suggest that the political nature of the expression
inherent in voting deserves even greater protection than other forms of expression, as
“the right to participate in electing our political leaders” is the most “basic [right] in our
democracy.” Id. (quoting McCutcheon v. FEC, 134 S. Ct. 1434, 1440-41 (2014)
(plurality)).
While Petitioners recognize that, in the instant matter, the 2011 Plan does not
entirely limit Democratic voters’ political expression, they note that laws which
discriminate against or burden protected expression based on content or viewpoint —
including those laws which render speech less effective — are nevertheless subject to
strict scrutiny analysis. Petitioners’ Brief at 49 (citing Ins. Adjustment Bureau v. Ins.
Com'r for Com. of Pa., 542 A.2d 1317, 1323-24 (Pa. 1988)). Petitioners maintain that
such is the case here, as the Plan was drawn to give Republicans an advantage in 13
out of 18 congressional districts (see Conclusions of Law at ¶ 52; Findings of Fact at ¶
291) and discriminates against the political viewpoint of Democratic voters across the
Commonwealth by: splitting traditionally Democratic strongholds to reduce the
effectiveness of the Democratic vote — i.e., Erie County, Harrisburg, and Reading;
removing predominantly Democratic municipalities from their broader communities and
[J-1-2018] - 70
combining them with other Democratic municipalities to dilute the weight of the
Democratic vote — i.e., Swarthmore, Easton, Bethlehem, Scranton, Wilkes-Barre, and
the Allegheny River Valley; or knitting together “disparate Republican precincts while
excising Democratic strongholds” to diminish the representational rights of Democrats
— i.e., Pennsylvania’s 12th District. Petitioners’ Brief at 52.
As further proof of the diminished value of the Democratic vote under the 2011
Plan, Petitioners emphasize that, in each of the past three elections, Democrats won
only 5 of the 18 seats, despite winning the majority of the statewide congressional vote
in 2012 and nearly half of that vote in 2014 and 2016. Petitioners also rely upon the
experts’ testimony and alternative plans, described above, which they contend
constitute “powerful evidence” of the intent to disadvantage Democratic voters. Id. at 53
(quoting Holt I, 38 A.3d at 756-57).
In light of the above evidence, Petitioners argue that the 2011 Plan does not
satisfy strict scrutiny — or any scrutiny, for that matter — because Legislative
Respondents failed to identify any legitimate, much less compelling, governmental
interest served by drawing the congressional district boundaries to disadvantage
Democratic voters. As such, Petitioners criticize the Commonwealth Court for failing to
address whether the Plan constitutes viewpoint discrimination and for failing to assess
the Plan with any measure of judicial scrutiny — strict scrutiny or otherwise.
While the Commonwealth Court found that Petitioners failed to offer a
manageable standard for determining when permissible partisanship in drawing districts
becomes unconstitutional, Petitioners maintain that the constitutional prohibition against
viewpoint discrimination and the strict scrutiny standard are indeed the appropriate
standards by which to assess their claim, noting that courts have long applied modern
constitutional principles to invalidate traditionally acceptable practices, such as the
[J-1-2018] - 71
gerrymandering employed in the instant case. Petitioners’ Brief at 55 (citing Elrod v.
Burns, 427 U.S. 347 (1976) (holding that the First Amendment to the United States
Constitution prohibited the practice of terminating government employees on a partisan
basis); Reynolds v. Sims, 377 U.S. 533, 579 (1964) (invalidating the practice of drawing
legislative districts with unequal population)). Petitioners additionally take issue with the
Commonwealth Court’s conclusion that there is no right to a “nonpartisan, neutral
redistricting process,” Conclusions of Law at ¶ 30, noting that the cases upon which the
Commonwealth Court relied in reaching this conclusion were equal protection cases,
and, thus, distinguishable from free speech-based gerrymandering challenges, which
the high Court allowed to proceed in Shapiro v. McManus, 136 S. Ct. 450 (2015).
Petitioners’ Brief at 57 (citing Erfer, 794 A.2d at 328 n.2).
Based on the foregoing, Petitioners urge this Court to find that the Pennsylvania
Constitution categorically prohibits partisan gerrymandering to any degree, as it “serves
no good purpose and offers no societal benefit.” Id. However, Petitioners argue that,
even if some partisan considerations were permitted in drafting the map of
congressional districts, this Court should nevertheless hold that the 2011 Plan’s
“extreme and obvious viewpoint discrimination” is unconstitutional. Id. at 58.
Petitioners offer that, at a minimum, the subordination of traditional districting criteria in
an attempt to disadvantage a party’s voters based on their political beliefs, as they claim
Respondents did in the instant case, should be prohibited.
Alternatively, Petitioners allege that the 2011 Plan impermissibly retaliates
against Democratic voters based upon their voting histories and party affiliation.
Petitioners note that, to establish a free-speech retaliation claim in the context of
redistricting, a party must establish that: (1) the plan intended to burden them “because
of how they voted or the political party with which they were affiliated”; (2) they suffered
[J-1-2018] - 72
a “tangible and concrete adverse effect”; and (3) the retaliatory intent was a “but for”
cause of their injury. Id. at 59-60 (quoting Shapiro v. McManus, 203 F. Supp.3d 579,
596-98 (D. Md. 2016)). Petitioners maintain that they have satisfied each of the three
elements of this test and that the Commonwealth Court erred in finding otherwise.
With respect to the first retaliation prong, Petitioners assert that the materials
provided by Speaker Turzai in the federal litigation, discussed above, are “direct,
conclusive evidence that the mapmakers drew district boundaries to disadvantage
Democratic voters specifically based on their voting histories, which the mapmakers
measured for every precinct, municipality, and county in Pennsylvania.” Id. at 60
(emphasis original). Petitioners claim this is further evidenced by the testimony of their
experts, which demonstrated that the mapmakers used Democratic voters’ past voting
history when “packing and cracking” legislative districts to subject those voters to
disfavored treatment. Id. Regarding the second prong, Petitioners argue that they
proved the Plan caused them to suffer a tangible and concrete adverse effect —
namely, losing several seats statewide. Finally, as to the third prong, Petitioners
contend that they would have won at least several more seats had the Plan not been
drawn to intentionally burden Democratic voters based on their past voting histories.
In rejecting their claim, the Commonwealth Court relied upon the three-part test
in Uniontown Newspapers, which required, inter alia, the challenger to establish that the
action caused “an injury that would likely chill a person of ordinary firmness from
continuing to engage in that activity.” Uniontown Newspapers, 839 A.2d at 198.
However, Petitioners submit that doing so was improper because “chilling” is not an
element of a constitutional retaliation claim. Rather, according to Petitioners, the focus
on “chilling” in Uniontown Newspapers was due to the fact that it was the only injury
alleged in the case, not because it was the only cognizable injury in a retaliation case.
[J-1-2018] - 73
Indeed, Petitioners suggest that they suffered multiple concrete harms wholly separate
from any chilling, which they claim is sufficient to establish the second prong of the
retaliation test. In any event, Petitioners argue that they were, in fact, chilled, as,
objectively, the Plan’s “uncompetitive districts clearly would deter many ‘ordinary’
persons from voting.” Petitioners’ Brief at 63.
Lastly, Petitioners reject the Commonwealth Court’s conclusion that the General
Assembly lacked a retaliatory motive, noting the “overwhelming evidence” — including
the documents produced by Speaker Turzai — conclusively established that the
mapmakers considered Democrats’ votes in prior elections when drawing the map to
disadvantage Democratic voters.
Petitioners next argue that the Plan violates equal protection principles and the
Free and Equal Elections Clause of the Pennsylvania Constitution. Id. at 64 (quoting
Pa. Const. art I, §§ 1, 5, 26). Specifically, principally relying upon the standard
articulated in Erfer, Petitioners explain that a congressional districting map violates the
equal protection clause if it reflects “intentional discrimination against an identifiable
political group” and if “there was an actual discriminatory effect on that group.” Id. at 65
(quoting Erfer, 794 A.2d at 332). First, regarding the intentional discrimination
requirement, Petitioners maintain that the overwhelming evidence proved that the 2011
Plan intentionally discriminated against Democratic voters, noting the Commonwealth
Court specifically found that such discrimination occurred. Second, with respect to the
identifiable political group requirement, Petitioners argue that Democratic voters do, in
fact, constitute an identifiable political group, citing the statistical evidence from Dr.
Chen regarding the high correlation in the level of support for Democratic candidates in
particular geographic units and Dr. Warshaw’s expert opinion with respect to the highly
predictable nature of congressional elections based on political party.
[J-1-2018] - 74
Third, Petitioners assert that the Plan had an actual discriminatory effect on
Democratic voters in the Commonwealth, arguing that, thereby, they have been
discriminated against in an exercise of their civil right to vote in violation of Article I,
Section 26, and deprived of an “equal” election in violation of the Free and Equal
Elections Clause. As noted, at least as a matter of equal protection, Petitioners must
prove: (1) that the Plan created disproportionate results at the polls, and (2) that they
have “essentially been shut out of the political process.” Erfer, 794 A.2d at 333.
Petitioners allege, based upon the evidence detailed above, that they satisfy the first
element because drawing the Plan to purposely diminish the effectiveness of
Democrats’ votes and to give Republicans the advantage at the polls created
disproportional election results, denying Democrats political power and fair
representation. Petitioners submit, however, that the second “shut out of the political
process” element should be eliminated because it is vague and “unworkable,” claiming
that Erfer provided no guidance regarding the type of evidence that would satisfy that
standard, and that Bandemer, supra, upon which Erfer was based, did not impose such
a requirement. Petitioners further suggest that imposing an “essentially shut out”
requirement is counterintuitive, as it would allow partisan map drawers to continue to
politically gerrymander so long as the minority party receives some of the congressional
seats. In any event, Petitioners argue that, because the Plan artificially deprives
Democratic voters of the ability to elect a Democratic representative, and, given the
extreme political polarization between the two political parties, Republican
representatives will not adequately represent Democrats’ interests, thus shutting
Democratic voters out of the political process.
Finally, Petitioners reject the Commonwealth Court’s conclusion that the Plan
satisfies equal protection principles because Democrats potentially will have the
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opportunity to influence the new map in 2020. Petitioners emphasize that “the
possibility that the legislature may itself change the law and remedy the discrimination is
not a defense under the Pennsylvania Constitution,” as, under that logic, every
discriminatory law would be constitutional. Petitioners’ Brief at 73.
Petitioners requested that this Court give the legislature two weeks to develop a
new, constitutional plan that satisfies non-partisan criteria, and that we adopt a plan
ourselves with the assistance of a special master if the legislature fails to do so.
Executive Respondents Governor Wolf, Secretary Torres, Commissioner Marks
and Lieutenant Governor Stack have filed briefs supporting Petitioners, arguing, for
largely the same reasons advanced by Petitioners, that the 2011 Plan violates the free
expression and free association provisions of the Pennsylvania Constitution, as well as
equal protection principles and the Free and Equal Elections Clause. Further,
Executive Respondents agree that the evidence provided by Petitioners was sufficient
to establish that the Plan is unconstitutional.
Beyond the points raised by Petitioners, Executive Respondents Wolf, Torres,
and Marks assert that, although the Commonwealth Court found that Petitioners were
required to provide a standard to assess when partisan considerations in creating a
redistricting plan cross the line into unconstitutionality, no such bright line rule was
necessary to determine that the Plan was unconstitutional in this case, given the
extreme and, indeed, flagrant level of partisan gerrymandering that occurred.
Additionally, while the Commonwealth Court suggested that Petitioners’ standard must
account for a variety of specific variables such as the number of districts which must be
competitive and the constitutionally permissible efficiency gap percentage, Respondents
Wolf, Torres, and Marks argue that precise calculations are not required, noting that
“courts routinely decide constitutional cases using judicially manageable standards that
[J-1-2018] - 76
are rooted in constitutional principles but that are not susceptible of precise calculation.”
Wolf, Marks, and Stack Brief at 8 (citing, e.g., BMW of N. Am., Inc. v. Gore, 517 U.S.
559, 585-86 (1996) (declining “to draw a bright line marking the limits of a
constitutionally acceptable punitive damages award,” but finding “the grossly excessive
award imposed in this case transcends the constitutional limit”)). Id. at 9. Respondents
Wolf, Torres, and Marks further observe that this Court, in invalidating a prior state
legislative redistricting plan as contrary to law in Holt I, expressly rejected “the premise
that any predetermined [population] percentage deviation [existed] with which any
reapportionment plan [had to comply],” and declined to “set any immovable ‘guideposts’
for a redistricting commission to meet that would guarantee a finding of
constitutionality.” Id. at 10 (quoting Holt I, 38 A.3d at 736).
For his part, Respondent Stack adds that, while he concurs with Petitioners’
position that the Plan fails strict scrutiny analysis, in his view, the Plan also fails under
the rational basis standard, as the Plan “lacks a legitimate state interest, and instead
advances the impermissible interest of achieving partisan advantage.” Stack Brief at
24. Respondent Stack further argues that, “[a]lthough the Legislative Respondents
proffered the hypothetical state interests of redrawing the district maps to conform to the
results of the census, they cannot and do not offer any rational relationship between
that interest and the map they drew.” Id. at 27. Additionally, with respect to Petitioners’
claim under the Free and Equal Elections Clause, Respondent Stack emphasizes that
“[t]he constitutional requirement of ‘free and equal elections’ contemplates that all voters
are to be treated equally.” Id. at 25. As the Plan was overtly drawn to favor
Republicans, Respondent Stack maintains that the Plan “exhibits the heavy hand of
state action . . . offensive to democracy,” violating the Commonwealth’s duty to ensure
that it provides free and equal elections. Id. at 26.
[J-1-2018] - 77
Executive Respondents provide additional insight into how this Court should
fashion a remedy, noting that, as representatives of the department that administers
elections in Pennsylvania, they are uniquely positioned to make suggestions in this
regard. Specifically, Respondents Wolf, Torres, and Marks offer that it is still possible to
hold the primary on the scheduled May 15 date if a new redistricting map is in place by
February 20, 2018. However, they submit that it would also be possible, through a
series of internal administrative adjustments and date changes, to postpone the primary
elections from May to the summer of 2018, which would allow a new plan to be
administered as late as the beginning of April.
As to the process of creating a new plan, Respondents Wolf, Torres, and Marks
assert that three weeks is a reasonable time period for the General Assembly and
Governor to enact and sign into law a new redistricting plan, noting that the General
Assembly previously enacted a revised congressional districting plan within only 10
days of the court’s order to do so. Wolf, Torres, Marks Brief at 25 (citing Vieth v.
Pennsylvania, 241 F. Supp. 2d 478, 480 (M.D. Pa. 2003), aff’d sub nom. Vieth, 541 U.S.
at 267). However, if the General Assembly fails to enact a plan by the Court’s deadline,
Respondents Wolf, Torres, and Marks suggest that this Court should draft a plan upon
consideration of the evidence submitted by the parties. Id. at 26 (citing League of
Women Voters of Florida v. Detzner, 179 So. 3d 258 (Fla. 2015)).
Respondent Stack agrees with the suggestion of Respondents Wolf, Torres, and
Marks that this Court may, and indeed should, adopt a new redistricting plan if the
General Assembly and the Governor cannot reach an agreement on a constitutionally
valid map in time for the 2018 congressional primaries. Should this Court take that
route, Respondent Stack cites favorably one of the maps developed by Dr. Chen –
Chen Figure 1, Petitioners’ Exhibit 3 (identified as Simulated Plan 1 above) – which he
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maintains serves as a good guide, claiming that it meets or exceeds the 2011 Plan
based on traditional redistricting criteria, and provides sufficient data to judge its
compliance with traditional districting criteria, as well as federal Voting Rights Act
requirements. Stack Brief at 10-15, 39. Respondent Stack offers that this Court should
retain a special master, who could reference Dr. Chen’s map as a guide in drawing a
new map, should the legislature fail to produce a map in a timely fashion.
Amicus Common Cause, like Petitioners, contends that the 2011 Plan violates
the Free and Equal Elections Clause of the Pennsylvania Constitution, asserting that
this clause provides greater protections to the right to vote than the federal Equal
Protection Clause.
Relying upon our seminal decision in Edmunds, supra,57 which provides the
framework for analyzing whether a right under the Pennsylvania Constitution is more
expansive than its federal counterpart, Common Cause first argues that the text of the
Free and Equal Elections Clause demonstrates that it should be viewed as independent
from the Equal Protection Clause of the United States Constitution. Common Cause
notes that, in contrast to the more general provisions of the Pennsylvania Constitution
such as Article I, Sections I and 26, which implicate, but do not specifically address, the
57
Edmunds instructs that an analysis of whether a right under the Pennsylvania
Constitution affords greater protection than the United States Constitution encompasses
the following four factors:
1) text of the Pennsylvania constitutional provision;
2) history of the provision, including Pennsylvania case-law;
3) related case-law from other states;
4) policy considerations, including unique issues of state and local concern, and
applicability within modern Pennsylvania jurisprudence.
Edmunds, 586 A.2d at 895.
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right to vote, Article I, Section 5’s proclamation that “[e]lections shall be free and equal”
and that “no power . . . shall at any time interfere to prevent the free exercise of the right
of suffrage” is direct and specific, indicating that the clause should not be “subsumed
into Sections 1 and 26, let alone federal jurisprudence.” Common Cause Brief at 6-7.
Second, Common Cause argues that the history of the Free and Equal Elections
Clause supports giving it independent effect. Specifically, Common Cause highlights
that, since as early as 1776, Pennsylvania has recognized the importance of the right to
vote, providing in Chapter I, Section VII of the Declaration of Rights that “all elections
ought to be free; and that all free men having a sufficient evident common interest with,
and attachment to the community, have a right to elect officers, or to be elected into
office.” Id. (quoting Pa. Const. of 1776, ch. I, § VII). Common Cause continues that, in
1790, Pennsylvania adopted the Free and Equal Elections Clause into its Constitution,
but the federal Constitution was, and continued to be, largely silent regarding the right to
free and equal elections, containing no comparable provision and leaving “the selection
of representatives and senators largely to the states, subject to minimum age and
eligibility requirements.” Id. at 8-9. While the United States later adopted the Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution,
Common Cause stresses that it did not do so until 1868 — many decades after
Pennsylvania had declared free and equal elections a fundamental right. Thus, in light
of the temporal differences between the two provisions and the fact that the federal
Equal Protection Clause does not specifically address elections, Common Cause
maintains that the Free and Equal Elections Clause and the federal Equal Protection
Clause should not be viewed as coterminous.
Common Cause also suggests that Pennsylvania case law supports giving the
Free and Equal Elections Clause independent effect, noting that this Court has
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interpreted the clause since as early as the 1860s, when the Court explained that
elections are made equal by “laws which shall arrange all the qualified electors into
suitable districts, and make their votes equally potent in the election; so that some shall
not have more votes than others, and that all shall have an equal share in filling the
offices of the Commonwealth.” Id. at 11 (quoting Patterson v. Barlow, 60 Pa. 54, 75
(Pa. 1869)). This Court further provided, with respect to the concept of legislative
deference under the Free and Equal Elections Clause, that, although the General
Assembly enjoys discretion in creating laws to ensure that elections are equal, the
legislature’s actions in this regard may be reviewed “in a case of plain, palpable, and
clear abuse of the power which actually infringes on the rights of the electors.” Id.
(quoting Patterson, 60 Pa. at 75). Common Cause additionally highlights that our case
law historically has recognized that the creation of “suitable districts” in accordance with
the Free and Equal Elections Clause relies heavily on “the guiding principles respecting
compactness, contiguity, and respect for the integrity of political subdivisions.” Id. at 13
(quoting Holt I, 38 A.3d at 745). Given the significant amount of time between the
passage of the Free and Equal Elections Clause and the Fourteenth Amendment to the
United States Constitution, as well as the separate attention that our Court has given to
the Free and Equal Elections Clause, Common Cause suggests that “[i]t is incoherent to
assume that Pennsylvania’s jurisprudence under the [Free and Equal Elections Clause]
disappeared into the Fourteenth Amendment.” Id. at 11.
Third, Common Cause argues that the relative dearth of case law from other
jurisdictions regarding free and equal elections illustrates that Pennsylvania was a
“trailblazer in guaranteeing the right to vote,” noting that, of the original 13 states, only
the Pennsylvania, Delaware, and Massachusetts Constitutions contained a clause
guaranteeing free and equal elections. Id. at 14. While Common Cause offers that at
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least one other state — Alaska — has found that its state constitution provides greater
protection against gerrymandering than the federal Constitution, see Kenai Peninsula
Borough v. State, 743 P.2d 1352, 1371 (Alaska 1987), Common Cause suggests that
the general lack of comparable provisions in other state constitutions indicates that,
“[a]s in 1776, Pennsylvania should lead the states in declaring the right to free and fair
elections, this time by stamping out gerrymandering.” Common Cause Brief at 14.
Lastly, Common Cause asserts that the Pennsylvania Constitution defeats
traditional policy arguments made in support of the practice of gerrymandering, such as
the purported difficulty in identifying a workable standard to assess constitutional
violations and the notion of legislative deference in drawing congressional districts.
More specifically, with respect to the difficulty of identifying a standard, Common Cause
submits that the three criteria long used for drawing voting districts in Pennsylvania —
compactness, contiguity, and integrity of political subdivisions — provide a sufficient
standard by which to assess whether an electoral map violates the Free and Equal
Elections Clause. Common Cause stresses that, because these criteria are specifically
written into the Pennsylvania Constitution, see Pa Const. art. II, § 16 (“representative
districts . . . shall be composed of compact and continuous 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”), and have provided the basis for invalidating state
legislative district maps in the past, see Holt I, supra, they are sufficiently precise as to
present a feasible standard for evaluating the constitutionality of a congressional district
map under the Free and Equal Elections Clause. Additionally, regarding the principle of
legislative deference, Common Cause argues that legislative deference does not give
the General Assembly unfettered discretion to engage in partisan gerrymandering
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without judicial interference, noting that, unlike the federal Constitution, Pennsylvania’s
Constitution specifically requires the Court to review challenges to state legislative
district maps. See Pa. Const. art. II, § 17(d). While Common Cause concedes that the
legislature typically enjoys substantial deference in redistricting matters, it maintains that
such deference is not warranted in circumstances, such as in the instant case, where
the “faction in control of the legislature” used its authority to create political advantage,
rather than to create a map which reflects the “true will of the people.” Common Cause
Brief at 17.
Asserting that the four Edmunds factors support giving the Free and Equal
Elections Clause independent effect, Common Cause concludes that the 2011 Plan
violates that provision because, as exhibited by Petitioners’ evidence, it is not compact
or contiguous, nor does it respect political subdivision boundaries. Moreover, Common
Cause asserts that the secretive manner in which the Plan was created strongly
suggests that the legislature drew the congressional districts with the improper, highly
partisan motive of benefitting the Republican Party, rather than doing so with the will of
the people in mind. Under these circumstances, Common Cause argues that this Court
should uphold the democratic principles of the Pennsylvania Constitution and strike
down the gerrymandered Plan pursuant to the Free and Equal Elections Clause.
Amicus Brennan Center for Justice (“Brennan Center”) likewise argues on behalf
of Petitioners that this Court can, and indeed should, strike down the 2011 Plan as
unconstitutional. In so asserting, Brennan Center emphasizes that, although some
degree of good faith political “give-and-take” is bound to occur with the redistricting
process, this case presents a particularly extreme, unconstitutional form of partisan
gerrymander which must be remedied by this Court. While the Commonwealth Court
below highlighted the difficulty with identifying a workable standard to assess when,
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precisely, partisan gerrymandering becomes unconstitutional, Brennan Center
maintains that “judicial action to stamp out extreme gerrymanders can be focused and
limited,” Brennan Center Brief at 6, explaining that cases of extreme, unconstitutional
gerrymandering are relatively rare and are easily detectable based upon two, objective
indicia: single-party control of the redistricting process and a recent history of
competitive statewide elections. Id. at 7. Brennan Center observes that these factors
have been present in every state in the past decade which had a congressional
districting map showing extreme partisan bias, including Pennsylvania during the
creation of the 2011 Plan. Brennan Center further offers that other accepted
quantitative metrics, such as the efficiency gap, the seats-to-votes curve, and the mean-
median vote share, can measure the level of partisan bias in a state and assist in
identifying extreme gerrymandering, noting that the 2011 Plan performed poorly under
each of these metrics.
While Brennan Center acknowledges that federal courts have been hesitant to
exercise jurisdiction over partisan gerrymandering claims because of concerns over
federalism and excessive burdens on the federal docket, Brennan Center suggests that
this Court is not subject to the same constraints. Moreover, Brennan Center highlights
that the political question doctrine, which has also hamstrung federal courts in partisan
gerrymandering cases, does not restrict this Court from acting in such cases, as this
Court held that the political question doctrine renders a case non-justiciable only when
the Pennsylvania Constitution “explicitly or implicitly” demonstrates “the clear intent to
entrust the legislature with the sole prerogative to assess the adequacy of its own
effort[s],” id. at 19 (quoting William Penn Sch. Dist. v. Pa. Dep’t of Educ., 170 A.3d 414,
439 (Pa. 2017)), and the Pennsylvania Constitution contains no such limitation with
regard to interpreting the constitutionality of partisan congressional redistricting.
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Finally, Brennan Center contends that extreme partisan gerrymandering, such as
in the instant case, is “contrary to fundamental constitutional and democratic values,”
undermining both legislative accountability to the people and legislative
representativeness. Id. at 15. Brennan Center asserts that finding the Plan
unconstitutional in this case will “enhance the legitimacy of Pennsylvania’s democracy”
and restore confidence among Pennsylvanians in the political process. Id. at 23.
Similar to the points raised by Petitioners, as amicus, the AFL-CIO argues that
the 2011 Plan is unconstitutional under Article I, Sections 7 and 20 and Article I, Section
5 of the Pennsylvania Constitution, which it asserts provides an independent basis for
relief. The AFL-CIO further suggests that Article I, Section 1 of the Pennsylvania
Constitution, which ensures equality under the law, and Article I, Section 26 of the
Pennsylvania Constitution, which protects Pennsylvanians against the denial or
discrimination of their civil rights, provide additional bases for relief under state law and
support reviewing the Plan under strict scrutiny.
Analyzing each of these provisions pursuant to the Edmunds factors, the AFL-
CIO highlights the rich history of the Pennsylvania Constitution, including, most notably,
that the Pennsylvania Constitution was at the forefront of ensuring robust rights
associated with representational democracy, such as the right to freedom of speech and
association, the right to equality under the law, and the right to vote in free and equal
elections, which the AFL-CIO notes Pennsylvania extended, quite remarkably, to those
individuals who did not own property. Moreover, with respect to the Free and Equal
Elections Clause, the AFL-CIO emphasizes that this Court has specifically stated that
elections are free and equal:
when they are public and open to all qualified electors alike:
when every voter has the same right as any other voter;
when each voter under the law has the right to cast his ballot
and have it honestly counted; when the regulation of the
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right to exercise the franchise does not deny the franchise
itself, or make it so difficult as to amount to a denial; and
when no constitutional right of the qualified elector is
subverted or denied him.
AFL-CIO Brief at 20-21 (quoting Winston v. Moore, 91 A. 520 at 523 (Pa. 1914)). The
AFL-CIO maintains that the unique history of these provisions demonstrates that they
“provide heightened protections beyond any analogous provisions in the federal
constitution,” and, thus, provide a separate legal basis for finding the 2011 Plan
unconstitutional. Id. at 4.
Amici Bernard Grofman, professor of political science at the University of
California, and Keith Gaddie, professor of political science at the University of
Oklahoma, echo the call of Petitioners, Executive Respondents, and other amici for this
Court to act and provide a check on extreme partisan gerrymandering, highlighting its
pernicious nature. Grofman and Gaddie also provide a suggested standard for
assessing partisan gerrymandering cases, proposing that a partisan gerrymander is
unconstitutional if each of the following three elements is shown: (1) partisan
asymmetry, meaning the districting map had a “disparate impact on voters based on
political affiliation,” as measured by degree of partisan bias and mean-median gap,
Grofman Gaddie Brief at 14; (2) lack of responsiveness of electoral outcomes to voters’
decisions, meaning representation does not change despite a change in voter
preference from one political party to another; and (3) causation, meaning intentional
discrimination, rather than other, neutral causes, led to the asymmetry and lack of
responsiveness. Grofman and Gaddie maintain that their standard is judicially
manageable, as it can be applied by courts “coherently and consistently” across cases,
and they urge this Court to adopt it. Id. at 36.
Also, as amicus, the American Civil Liberties Union (“ACLU”) argues in support of
Petitioners that the 2011 Plan violates the free expression and association clauses of
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the Pennsylvania Constitution, asserting, consistent with Petitioners’ position, that the
Pennsylvania Constitution provides greater protections for these rights than does the
First Amendment to the United States Constitution. The ACLU also notes the unique
nature of the Pennsylvania Constitution’s Free and Equal Elections Clause, which, it
suggests, grants more robust protections for the right to vote than the federal
Constitution. Further, as a matter of policy, the ACLU suggests that greater protections
for speech, associational, and voting rights are consistent with the “marketplace of
ideas” concept developed by Justice Oliver Wendell Holmes, which, the ACLU notes,
highlights the importance of government viewpoint neutrality in maintaining the free
exchange of ideas critical to our democracy, particularly where the electoral process is
at stake. ACLU Brief at 6-9.
Similar to Petitioners, the ACLU maintains that extreme partisan gerrymandering
is unconstitutional, explaining that unconstitutional partisan gerrymandering is “distinct
from the inevitable incidental political considerations and partisan effects that may
occur,” id. at 22, and, instead, occurs when a state acts with an intent to “entrench” by
drawing district “lines for the purpose of locking in partisan advantage regardless of the
voters’ likely choices.” Id. at 22-23 (citing Arizona State Legislature, 135 S. Ct. at 2658).
The ACLU suggests that such political entrenchment was present in the instant case,
and it maintains that the General Assembly’s deliberate effort to discriminate against
minority-party voters triggers strict scrutiny, which the ACLU notes the Legislative
Respondents have made no effort to satisfy. Thus, the ACLU argues that this Court
should find the Plan violates the Pennsylvania Constitution.
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Additionally, Political Science Professors,58 the Pittsburgh Foundation,59 and
Campaign Legal Center have each filed amicus curiae briefs in support of Petitioners.
These amici focus largely on the increasing prevalence of partisan gerrymandering
occurring across the United States, which they attribute to sophisticated, ever-evolving
technology which makes it more feasible than ever to gather specific data about voters
and to utilize that data to “tailor durably biased maps.” Political Science Professors’
Brief at 12. These amici warn that instances of extreme partisan gerrymandering will
only worsen as this technology continues to develop.
Turning to the 2011 Plan, these amici all agree that it represents a particularly
egregious form of partisan gerrymandering. They suggest that the challenge to the Plan
is justiciable under the Pennsylvania Constitution, and they assert that judicially
manageable standards exist by which to assess the constitutionality of the Plan. More
specifically, the Pittsburgh Foundation offers that a congressional redistricting plan is
unconstitutional if it: “(1) was intentionally designed predominantly to attain a partisan
result; (2) largely disregards traditional and accepted districting criteria; and (3) has
been demonstrated (or is reliably predicted) to have an actual disparate and unfair
impact on a substantial number of Pennsylvania voters.” Pittsburgh Foundation Brief at
58
Political Science Professors identify themselves as “nationally recognized university
research scholars and political scientists from some of the foremost academic
institutions in Pennsylvania and from across the country whose collective studies on
electoral behavior, voter identity, and redistricting in the United States have been
published in leading scholarly journals and books.” Political Science Professors’ Brief at
1.
59
The Pittsburgh Foundation is a non-profit organization which “works to improve the
quality of life in the Pittsburgh region by evaluating and addressing community issues,
promoting responsible philanthropy, and connecting donors to the critical needs of the
community.” The Pittsburgh Foundation, http://pittsburghfoundation.org (last visited
Jan. 29, 2018).
[J-1-2018] - 88
13. Political Science Professors submit that courts should use computer simulations, as
well as objective, social science measures, to assess a districting map’s partisan bias,
such as the efficiency gap and the mean-median difference. Lastly, Campaign Legal
Center argues that this Court should adopt Petitioners’ proposed standard.60
B. Legislative Respondents
We now turn to the arguments of the Legislative Respondents. They contend
that districting legislation, such as the 2011 Plan at issue, does not implicate, let alone
violate, free speech or associational rights because it “is not directed to voter speech or
conduct.” Legislative Respondents’ Brief at 23. Rather, according to Legislative
Respondents, the Plan creates “18 equipopulous districts,” giving Petitioners’ votes the
same weight as other Pennsylvania voters and fully allowing Petitioners to participate in
the political process by voting for the candidate of their choice and associating with any
political party or candidate they so choose. Id.
Regarding Petitioners’ reliance on cases involving laws which made speech less
effective, Legislative Respondents suggest those decisions are inapplicable to the case
at bar because they concern laws which actually restricted speech, whereas the Plan in
the instant case allows Democrats to communicate as desired through such means as
voting for their preferred candidates, joining the Democratic Party, contacting their
representatives, and financially supporting causes they care about. Although
Legislative Respondents concede that the Plan might make it more difficult for
Petitioners to “persuade a majority of the other 705,000+ voters in their districts to agree
with them on the candidate they prefer,” id. at 25, they emphasize that Petitioners have
no free speech or associational right to “an agreeable or more persuadable audience,”
60
The application to file an amicus brief nunc pro tunc, filed by Concerned Citizens for
Democracy, is granted.
[J-1-2018] - 89
id. at 26, citing a variety of federal cases holding that the redistricting plans challenged
therein did not violate voters’ First Amendment rights. Id. (citing, e.g., League of
Women Voters v. Quinn, No. 1:11-CV-5569, 2011 WL 5143044, *12-13 (N.D. Ill. Oct.
28, 2011); Comm. for a Fair and Balanced Map v. Ill. State Bd. of Elections, 835 F.
Supp.2d 563, 575 (N.D. Ill. 2011)).
Moreover, relying on this Court’s decision in Holt v. 2011 Reapportionment
Commission, 67 A.3d 1211 (Pa. 2013) (“Holt II”), Legislative Respondents highlight the
“inherently political” nature of redistricting, which, they note, this Court found
constitutionally permissible. Legislative Respondents’ Brief at 27 (quoting Holt II, 67
A.3d at 1234). Further, to the extent that Petitioners distinguish in their argument
between permissible “political considerations” and what they deem impermissible
“partisan intent,” Respondents maintain that “the two concepts are inextricably
intertwined,” as “political parties are comprised of constituencies, which in part includes
‘communities of interest’ — what Petitioners argue is the ‘good’ side of ‘political.’” Id. at
28. As such, Legislative Respondents contend that Petitioners’ argument that no
partisan considerations should be permitted during the redistricting process runs afoul
of Holt II and necessarily must fail. They suggest that, to find otherwise, would allow
any Pennsylvania voter to challenge, and potentially invalidate, a plan designed to
protect an incumbent or to protect “communities of interest” — a “sweeping rule” that
Respondents contend is not justified by the law, the facts, or public policy. Id. at 29-30.
Next, Respondents assert that Petitioners cannot satisfy the requirements of a
retaliation claim. Relying upon the Uniontown Newspapers test, Legislative
Respondents first argue that Petitioners fail to provide record evidence establishing that
the 2011 Plan was enacted with a retaliatory motive to coerce Democratic voters into
voting differently than they would otherwise vote. To the contrary, Respondents
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maintain that no legislature would reasonably believe that gerrymandering would coerce
voters to vote differently, and they further submit that the record demonstrates that the
Plan was passed with bipartisan support, indicating the Plan was not drawn with a
“dastardly motive.” Id. at 31. Respondents also contend that Petitioners failed to prove
that the Plan “chilled” a person from continuing to participate in the political process, as
the evidence of record did not show a decrease in voter turnout or civil participation
following the Plan’s enactment. Lastly, Legislative Respondents highlight the fact that
political gerrymandering is not typically the type of government conduct associated with
a case of retaliation; rather, Respondents note that retaliation claims typically involve
overt actions intended to invoke fear in the target, such as police intimidation tactics or
organized harassment campaigns.
Next, Legislative Respondents assert that Petitioners failed to prove that the
2011 Plan violated the equal protection and Free and Equal Elections clauses of the
Pennsylvania Constitution. Relying upon Erfer, Respondents contend that Petitioners
produced no evidence that the Plan was designed to intentionally discriminate against
Democratic voters, emphasizing the bipartisan manner in which the Plan was adopted,
and claiming that Petitioners’ statistical data does not account for the various non-
partisan factors considered in drawing the Plan, such as preserving the core of existing
districts, preserving communities of interest, and protecting incumbents. Respondents
also suggest that Democratic voters do not constitute an “identifiable political group”
because they encompass a wide range of people beyond those who belong to the
Democratic Party, and because Pennsylvania voters frequently split their tickets
between Democratic and Republican candidates, making it difficult to clearly identify a
voter as solely “Democratic.”
[J-1-2018] - 91
With respect to the second Erfer prong, Respondents maintain that Petitioners
failed to establish that the Plan had a discriminatory effect on Democratic voters and,
more specifically, failed to prove that the Plan resulted in a lack of political power which
effectively shut out Democrats from the political process. Respondents argue that,
contrary to Petitioners’ assertions, this Court specifically found that merely voting for a
political candidate who loses an election does not shut out a voter from the political
process, see Erfer, 794 A.2d at 333, and they submit that, in any event, the five “safe”
Democratic seats in the congressional delegation demonstrate that Democrats are not
shut out. Respondents further observe that, although Petitioners suggest, due to
congressional polarization, that Democrats’ interests are not adequately represented by
their congressmen, they fail to provide evidence substantiating this claim and fail to
identify the interests of Democratic voters which allegedly are not represented in
congress, particularly those Democrats who are “split ticket” voters.
Moreover, to the extent that Petitioners suggest that the second element of the
Erfer test should be eliminated as unworkable, Respondents maintain that we should
deny their request, claiming that Petitioners seek to eliminate that element because they
are simply unable to meet it. Respondents further argue that, in advocating for the
removal of the second element, Petitioners essentially are seeking a state constitutional
right to proportional representation, which the United States Supreme Court expressly
rejected in Bandemer. See Bandemer, 478 U.S. at 139. In any event, Respondents
emphasize that Petitioners have not met their burden of establishing that this Court
should depart from Erfer and the federal precedent upon which it relies, as the equal
protection guarantees under the United States and Pennsylvania Constitutions are
coterminous, and Petitioners do not suggest otherwise.
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Respondents further assert that, even if this Court were to abandon the standard
articulated in Erfer, Petitioners’ claim would nevertheless fail because, pursuant to
recent United States Supreme Court precedent, there is no judicially manageable
standard by which to evaluate claims involving equal protection violations due to
partisan gerrymandering. See Vieth, 541 U.S. at 292. Respondents observe that
Petitioners do not attempt to offer a judicially manageable standard to apply in place of
the Erfer standard, and they note that the standards proposed by amici are similarly
unavailing, as they each are incompatible with each other.
Additionally, Legislative Respondents contend that policy considerations weigh
heavily against this Court creating a new standard for evaluating partisan
gerrymandering claims under Pennsylvania’s equal protection clause, as they claim the
legislature is uniquely competent to engage in redistricting, and judicial oversight in this
area implicates separation-of-powers concerns. Respondents further suggest that there
are a variety of positive elements to using political considerations in redistricting,
including preserving “core constituencies” and incumbency, as well as the states’ right
to establish their districts in the manner they so choose. Moreover, Legislative
Respondents highlight various checks on the state redistricting process, such as the
“Make or Alter” provision of the federal Elections Clause of the United States
Constitution,61 the threat of political retaliation when the political tides turn, and, as in
Pennsylvania, legislation which establishes a bi-partisan commission to draw district
lines. Nevertheless, should this Court decide to select a new standard, Legislative
Respondents submit that they should receive a new trial.
61
See supra p. 5.
[J-1-2018] - 93
Legislative Respondents conclude by cautioning that this Court should not adopt
legal criteria for redistricting beyond those in Pennsylvania’s Constitution, claiming that
doing so would infringe on the legislative function and run afoul of the federal Elections
Clause. Accordingly, Respondents ask our Court to affirm the Commonwealth Court’s
decision and find that Petitioners did not demonstrate that the 2011 Plan clearly, plainly,
and palpably violates the Constitution.
C. Intervenors
Intervenors — Republican voters, candidates for office, committee chairpersons,
and other active members of the Republican Party — stress that they have invested
substantial time, money, and effort in preparing for the upcoming election deadlines
based upon the 2011 Plan, and they suggest that this Court should not require a new
congressional map before the 2018 primaries, as it would be a “monumental task” to
educate voters about changes in the congressional districts in time for the election.
Intervenors’ Brief at 17. Intervenors also highlight potential problems with overall voter
confusion, as well as various challenges congressional candidates would face as a
result of changes to the 2011 Plan during this election cycle, including potentially having
to circulate new nomination petitions and having to direct their campaign activities to
potentially new voters and demographics. While Executive Respondents maintain that
the date of the primary could be extended, Intervenors contend that an extension
imposed this late in the election cycle would “result in significant logistical challenges for
county election administrators,” as well as substantially increase the costs borne by
state and county governments. Id. at 29. According to Intervenors, the above-
described challenges would be particularly pronounced with respect to the special
election for the 18th Congressional District, scheduled for March 13 of this year.
[J-1-2018] - 94
While Intervenors would find, based upon Vieth, that Petitioners have not shown
that their partisan gerrymandering claims are justiciable, should this Court nevertheless
find the claims justiciable and the 2011 Plan unconstitutional, they argue that we must
give the legislature the first opportunity to correct the Plan, as ordering new districts
without giving the legislature the chance to rectify any constitutional violations would
raise separation-of-powers concerns. In doing so, Intervenors assert that our Court
should follow the standard for relief that this Court endorsed in Butcher v. Bloom, 203
A.2d 556 (Pa. 1964), wherein, after finding that the state redistricting plan violated
Reynolds, supra, our Court declined to order immediate redistricting in light of the
“[s]erious disruption of orderly state election processes and basic governmental
functions” that would result from the Court’s immediate action. Intervenors’ Brief at 17
(quoting Butcher, 203 A.2d at 568). Instead, Intervenors note this Court opted to leave
the plan in place until after the upcoming election so as to allow the legislature to have a
“reasonable opportunity to enact new reapportionment legislation,” giving the legislature
almost a full year to do so. Id. at 23 (quoting Butcher, 203 A.2d at 569).
Claiming that the same concerns in Butcher are present in the instant case,
Intervenors submit that we should likewise give the legislature a reasonable and
adequate time in which to correct the Plan, which they suggest could be in place for the
2020 elections. Further counseling against the immediate remedying of the 2011 Plan’s
constitutional deficiencies, Intervenors highlight the fact that Petitioners, without
explanation, waited three election cycles (almost seven years) to bring their claims,
indicating that any constitutional issues are not pressing. Intervenors also cite the
United States Supreme Court’s pending decision in Gill, which they note may impact the
resolution of this case.
[J-1-2018] - 95
V. Analysis
We begin our analysis of the challenge to the 2011 Plan with the presumption
that the General Assembly did not intend to violate the Pennsylvania Constitution, “in
part because there exists a judicial presumption that our sister branches take seriously
their constitutional oaths.” Stilp v. Commonwealth, 905 A.2d 918, 938-39 (Pa. 2006);
see also 1 Pa.C.S. § 1922(3). Accordingly, a statute is presumed to be valid, and will
be declared unconstitutional only if the challenging parties carry the heavy burden of
proof that the enactment “clearly, palpably, and plainly violates the Constitution.” See
West Mifflin Area School District v. Zahorchak, 4 A.3d 1042, 1048 (Pa. 2010).
Upon review,62 and for the following reasons, we are persuaded by Petitioners
and the other presentations before us that the 2011 Plan clearly, plainly, and palpably
violates the Free and Equal Elections Clause of our Constitution.63
A. Free and Equal Elections Clause
Pennsylvania’s Constitution, when adopted in 1776, was widely viewed as “the
most radically democratic of all the early state constitutions.” Ken Gormley, “Overview
of Pennsylvania Constitutional Law,” as appearing in Ken Gormley, ed., The
Pennsylvania Constitution A Treatise on Rights and Liberties, 3 (2004). Indeed, our
Constitution, which was adopted over a full decade before the United States
Constitution, served as the foundation ― the template ― for the federal charter. Id.
Our autonomous state Constitution, rather than a “reaction” to federal constitutional
62
Given that this case is before us following our grant of extraordinary jurisdiction, our
standard of review is de novo. Further, although the findings of fact made by Judge
Brobson are not binding on this Court, “we will afford them due consideration, as the
jurist who presided over the hearings was in the best position to determine the facts.”
Annenberg v. Commonwealth, 757 A.2d 338, 343 (Pa. 2000) (citations omitted).
63
Given that we base our decision on the Free and Equal Elections Clause, we need
not address the free expression or equal protection arguments advanced by Petitioners.
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jurisprudence, stands as a self-contained and self-governing body of constitutional law,
and acts as a wholly independent protector of the rights of the citizens of our
Commonwealth.
The touchstone of interpretation of a constitutional provision is the actual
language of the Constitution itself. Ieropoli v. AC & S Corp., 842 A.2d 919, 925 (Pa.
2004). “[T]he Constitution's language controls and must be interpreted in its popular
sense, as understood by the people when they voted on its adoption.” Id. In doing so,
reading the provisions of the Constitution in any “strained or technical manner” is to be
avoided. Jubelirer v. Rendell, 953 A.2d 514, 528 (Pa. 2008). Consistent therewith, “we
must favor a natural reading which avoids contradictions and difficulties in
implementation, which completely conforms to the intent of the framers and which
reflects the views of the ratifying voter.” Commonwealth ex rel. Paulinski v. Isaac, 397
A.2d 760, 766 (Pa. 1979).
Further, if, in the process of undertaking explication of a provision of the
Pennsylvania Constitution, any ambiguity becomes apparent in the plain language of
the provision, we follow the rules of interpretation similar to those generally applicable
when construing statutes. See, e.g., Robinson Township v. Commonwealth, 83 A.3d
901, 945 (Pa. 2013); Commonwealth v. Omar, 981 A.2d 179, 185 (Pa. 2009). If the
constitutional language is clear and explicit, we will not “delimit the meaning of the
words used by reference to a supposed intent.” Robinson Township, 83 A.3d at 945
(quoting Commonwealth ex rel. MacCallum v. Acker, 162 A. 159, 160 (Pa. 1932)). If the
words of a constitutional provision are not explicit, we may resort to considerations other
than the plain language to discern intent, including, in this context, the occasion and
necessity for the provision; the circumstances under which the amendment was ratified;
the mischief to be remedied; the object to be attained; and the contemporaneous
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legislative history. 1 Pa.C.S. §§ 1921, 1922; accord Robert F. Williams, The Brennan
Lecture: Interpreting State Constitutions as Unique Legal Documents, 27 Okla. City U.
L. Rev. 189, 195 & 200 (2002) (state constitutions, ratified by electorate, are
characterized as “voice of the people,” which invites inquiry into “common
understanding” of provision; relevant considerations include constitutional convention
debates that reflect collective intent of body, circumstances leading to adoption of
provision, and purpose sought to be accomplished).
Moreover, the Free and Equal Elections Clause has no federal counterpart, and,
thus, our seminal comparative review standard described in Commonwealth v.
Edmunds, supra, is not directly applicable.64 Nonetheless, certain of the Edmunds
factors obviously may assist us in our analysis. Jubelirer, 953 A.2d at 524-25;
Edmunds, 586 A.2d at 895. Indeed, we have recently employed certain of these factors
when analyzing the Environmental Rights Amendment. See Robinson Township 83
A.3d at 944 (“The Environmental Rights Amendment has no counterpart in the federal
charter and, as a result, the seminal, comparative review standard described in
[Edmunds] is not strictly applicable here. Nonetheless, some of the Edmunds factors
obviously are helpful in our analysis.”). Thus, in addition to our analysis of the plain
language, we may consider, as necessary, any relevant decisional law and policy
considerations argued by the parties, and any extra-jurisdictional case law from states
that have identical or similar provisions, which may be helpful and persuasive. See
Jubelirer, 953 A.2d at 525 n.12.
64
As noted above, our landmark decision in Edmunds, our Court set forth a four-part
test which we routinely follow in examining and interpreting a provision of our
Commonwealth’s organic charter. This test examines (1) the relevant text of the
provision of Pennsylvania Constitution; (2) the history of the provision, including
Pennsylvania case law; (3) relevant case law from other jurisdictions interpreting similar
provisions of that jurisdiction’s constitution; and (4) policy considerations.
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Finally, we emphasize that Article I is the Commonwealth's Declaration of Rights,
which spells out the social contract between government and the people which is of
such “general, great and essential” quality as to be ensconced as “inviolate.” Pa. Const.
art. I, Preamble & § 25; see also Pa. Const. art. I, § 2 (“All power is inherent in the
people, and all free governments are founded on their authority and instituted for their
peace, safety and happiness.”). Although plenary, the General Assembly's police power
is not absolute, as legislative power is subject to restrictions enumerated in the
Constitution and to limitations inherent in the form of government chosen by the people
of this Commonwealth. See Pa. Const. art. III, §§ 28-32 (enumerating restrictions).
Specifically, under our Constitution, the people have delegated general power to the
General Assembly, with the express exception of certain fundamental rights reserved to
the people in Article I of our Constitution. See Pa. Const. art. I, § 25 (“[t]o guard against
transgressions of the high powers which we have delegated, we declare that everything
in this article is excepted out of the general powers of government and shall forever
remain inviolate.”); see generally Robinson Township, 83 A.3d at 946-48.
Thus, with this context in hand, we begin with the actual language of Article I,
Section 5.
1. Language
Article I, Section 5 of the Pennsylvania Constitution, entitled “Elections,” is
contained within the Pennsylvania Constitution’s “Declaration of Rights,” which, as
noted above, is an enumeration of the fundamental individual human rights possessed
by the people of this Commonwealth that are specifically exempted from the powers of
Commonwealth government to diminish.65 As noted above, this section provides:
65
See Pa. Const. art. I, § 25 (“To guard against transgressions of the high powers
which we have delegated, we declare that everything in this article is excepted out of
the general powers of government and shall forever remain inviolate.”).
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Elections shall be free and equal; and no power, civil or
military, shall at any time interfere to prevent the free
exercise of the right of suffrage.
Pa. Const. art. I, § 5. This clause first appeared, albeit in different form, in our
Commonwealth’s first organic charter of governance adopted in 1776, 11 years before
the United States Constitution was adopted. By contrast, the United States Constitution
– which furnishes no explicit protections for an individual’s electoral rights, nor sets any
minimum standards for a state’s conduct of the electoral process – does not contain,
nor has it ever contained, an analogous provision. See Joshua A. Douglas, The Right
to Vote Under State Constitutions, 67 Vand. L. Rev. 89, 100 (2014) (observing that “the
U.S. Constitution does not grant the right to vote. It instead defines the right through a
negative gloss, detailing the various reasons states cannot limit the franchise.”).
The broad text of the first clause of this provision mandates clearly and
unambiguously, and in the broadest possible terms, that all elections conducted in this
Commonwealth must be “free and equal.” In accordance with the plain and expansive
sweep of the words “free and equal,” we view them as indicative of the framers’ intent
that all aspects of the electoral process, to the greatest degree possible, be kept open
and unrestricted to the voters of our Commonwealth, and, also, conducted in a manner
which guarantees, to the greatest degree possible, a voter’s right to equal participation
in the electoral process for the selection of his or her representatives in government.
Thus, Article I, Section 5 guarantees our citizens an equal right, on par with every other
citizen, to elect their representatives. Stated another way, the actual and plain
language of Section 5 mandates that all voters have an equal opportunity to translate
their votes into representation. This interpretation is consistent with both the historical
reasons for the inclusion of this provision in our Commonwealth’s Constitution and the
meaning we have ascribed to it through our case law.
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2. History
Our Commonwealth’s centuries-old and unique history has influenced the
evolution of the text of the Free and Equal Elections Clause, as well as our Court’s
interpretation of that provision. Although the general character of our Commonwealth
during the colonial era was reflective of the fundamental desire of Pennsylvania’s
founder, William Penn, that it be a haven of tolerance and non-discrimination for
adherents of various religious beliefs, the manner in which the colony was governed
from its inception nevertheless excluded certain groups from participation in its official
government. Roman Catholics, for example, could not hold office in the colony from
1693 to 1776, due to the requirement in the Charter of Privileges, a precursor to our
Constitution in which Penn set forth the manner of governance for the colony,66 that
every candidate for office was required to swear “that he did not believe in the doctrine
of transubstantiation, that he regarded the invocation of the Virgin Mary and the saints
as superstitious and the Popish Mass as idolatrous.” J. Paul Selsam, The Pennsylvania
Constitution of 1776, 179 (1971). Thus, although successive waves of European
immigrants were attracted to the Pennsylvania colony after its founding by the promise
of religious tolerance, not every group which settled in Pennsylvania was afforded the
equal legal right to participate in its governance. Related thereto, the colony became
divided over time by the geographical areas in which these immigrants settled, as well
as their religious beliefs.
English and Quaker immigrants fleeing persecution in England were the first to
arrive and settled in the eastern part of the colony in and around the City of Philadelphia
and in Chester and Bucks Counties. German immigrants arrived thereafter in sizable
66
William Penn Sch. Dist., 170 A.3d at 418–19.
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numbers and settled primarily in the central and northeastern part of the colony, and
finally came a large influx of Scots-Irish Presbyterians who lived primarily in the interior
and frontier regions of the colony: first in Lancaster, York and Cumberland Counties,
and then expanding westward to the areas beyond the Allegheny mountains,
congregating in and near the settlement which became modern day Pittsburgh. Id. at 4-
5.
These groups were divided along economic and religious lines. The English and
Quakers who engaged in extensive commerce and banking became the most wealthy
and aristocratic elements in the colony. Id. at 6. German immigrants reaped a
comfortable living from farming the fertile lands of their settlement. Rosalind Branning,
Pennsylvania Constitutional Development, 10 (1960). The Scots-Irish, who occupied the
frontier regions, eked out an existence through hunting, trapping, and subsistence
farming; however, they also became skilled tradesmen, highly proficient in construction,
masonry, and ironworking, and began to be described as “the leather aprons,” which,
although intended as a pejorative by members of the colony’s aristocracy, they proudly
adopted as a badge of honor reflective of their considerable skills and abilities in their
chosen professions. Robert Brunhouse, The Counter-Revolution in Pennsylvania 1776-
1790, 16 (1942).
These various groups began to align themselves into nascent political factions
which, by the 1760s, exerted varying degrees of control over the colonial government.
The eastern Presbyterian adherents formed a group known as “the Proprietary Party,”
so named because of their faithfulness to the tenets of William Penn’s religious and
political philosophy, and they were joined by the Anglicans who had also settled in the
Philadelphia region. The Quakers, disillusioned by Penn’s embrace of the Anglican
faith, united with German pietistic religious sects to form a party known as the Quaker or
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“Anti-Proprietary Party.” Selsam at 6-7; Branning, at 10. The Scots-Irish, who were
angry at having their pleas for assistance during the French and Indian War ignored by
the colonial assembly, which was dominated by the Proprietary Party, aligned with the
Anti-Proprietary party as a means of achieving their goal of fair representation in the
assembly. Branning at 10.
Although these political alliances remained intact until the early 1770s, they
began to unravel with the tensions occasioned by the general colonial revulsion at the
heavy-handed tactics of the British Crown — e.g., the imposition of the Stamp Act and
the use of writs of assistance to enforce the Revenue Act — which ultimately culminated
in the Revolutionary War. The Quakers and the Anglicans remained loyal to the British
Crown as these tensions rose. However, the Scots-Irish in the western region, who
dominated the Anti-Proprietary Party, were strongly supportive of the cause of the
opponents of the crown, and they began to demand reforms be made by the colonial
assembly, controlled by the Proprietary Party, including reapportionment of
representation to the west. Id. at 11. They were joined in this effort by a large segment
of the working-class population of the City of Philadelphia, disenfranchised by the
requirement of the Charter of Privileges that imposed a property ownership requirement
for the right to vote. This, coupled with the Charter’s restriction of representation in the
assembly to counties, resulted in the underrepresentation of the City of Philadelphia in
colonial affairs, as well as the denial of representation to the western region due to the
assembly’s deliberately slow pace in recognizing new counties in that area. Id. Thus,
by the early 1700s, colonial government remained dominated by the counties of
Philadelphia, Chester, and Bucks, even though they had been eclipsed in population by
the western regions of the colony and the City of Philadelphia. Selsam at 31-33.
Although, in an effort to placate these groups, the assembly granted a concession by
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giving the west 28 seats in the assembly, while retaining 30 for the east, this did little to
mollify the fervor of these groups for further reform. Branning at 11.
The opportunity for such reform arose with the formal adoption of the Declaration
of Independence by the Continental Congress in 1776. This same Congress also
adopted a resolution suggesting that the colonies adopt constitutions in the event that
they had “no government sufficient to the exigencies of their affairs.” Id. at 12. For the
Pennsylvania colony, this was the catalyst which enabled the reformers from the
western regions and the City of Philadelphia, who were now known as “the radicals,” to
achieve the calling of a constitutional convention. This convention, which was presided
over by Benjamin Franklin, who also was serving at the same time in the Continental
Congress, adopted our Commonwealth’s Constitution of 1776, which, for its time, was
considered very forward thinking. Id. at 13. Many of its provisions reflected the
prevailing sentiment of the radical delegates from the frontier and the City of
Philadelphia for a devolution of centralized political power from the hands of a very few,
in order to form a government more directly responsive to the needs of the people.
Thus, it adopted a unicameral legislature on the belief that bicameral legislatures with
one house dominated by elites who were elected on the basis of monetary or property
qualifications would thwart the will of the people, as expressed through their
representatives in the lower chamber, whose members were elected by those whose
right of suffrage was not similarly constrained. Joseph S. Foster, The Politics of
Ideology: The Pennsylvania Constitutional Convention of 1789-1790, 123 Pennsylvania
J. of History, Vol. 59, No. 2 (April 1992). Even though concerned with foundational
matters such as the structure of government, the delegates, in response to their
experience of being excluded from participation in the colonial government, included
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two explicit provisions to establish protections of the right of the people to fair and equal
representation in the governance of their affairs.
The first requirement was that representation be proportional to population and
that reapportionment of legislative seats be done every seven years. See Pa. Const. of
1776, art. I, § IV. As noted by one commentator, this was the direct product of the
personal history of the majority of the delegates, and the requirement of equal
representation was, thus, intended to protect future individuals against the exclusion
from the legislative process “by persons who gained power and intended to keep it.”
John L. Gedid, “History of the Pennsylvania Constitution” as appearing in Ken Gormley,
ed., “The Pennsylvania Constitution A Treatise on Rights and Liberties, 48 (2004).
Concomitant with this requirement, the delegates also deliberately incorporated
into that Constitution the Declaration of Rights – which they considered to be an integral
part of its framework – and therein the first version of Article I, Section 5, which declared
that “all elections ought to be free; and that all free men having a sufficient evident
common interest with, and attachment to the community, have a right to elect officers,
or to be elected into office.” Pa. Const. of 1776, art. I, § VII.
This section reflected the delegates’ desire to secure access to the election
process by all people with an interest in the communities in which they lived — universal
suffrage — by prohibiting exclusion from the election process of those without property
or financial means. It, thus, established a critical “leveling” protection in an effort to
establish the uniform right of the people of this Commonwealth to select their
representatives in government. It sought to ensure that this right of the people would
forever remain equal no matter their financial situation or social class. Gedid, at 51; see
also Selsam, at 190 (“The long struggle by the people for the control of their affairs was
finally rewarded.”).
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Opposition to the new Constitution arose almost immediately, driven chiefly by
the Quakers, Episcopalians, and Germans who had not fought in the Revolution, and
the commercial interests in the City of Philadelphia. Branning at 17. These groups felt
excluded from participation in the new government just as the factions who had written
the 1776 Constitution previously did. Moreover, significant resentment grew over the
increasing political power and attainment of elected office by those of lower
socioeconomic status in the period after 1776. The social and commercial aristocracy
of the Commonwealth resented the acquisition of political control of state government
by the “leather aprons.” Brunhouse at 16. Further, the exclusion of some of the
population through the requirement of “test oaths” in the 1776 Constitution, which
required all voters, candidates for office, and office holders to swear allegiance to
uphold the new frame of government, further alienated those groups, chiefly from the
eastern part of the state, for whom such oaths violated their religious beliefs. Id. These
groups united and became known as the “Anti-Constitutionalists,” and later by the
designation Republicans and, later still, Federalists.67 Supporters of the new charter of
governance were allied into a political faction known as the Constitutionalists.
The strife between these two groups, and deficiencies in the structure of the new
government — i.e., the lack of a strong executive and an ill-defined role for a putative
executive body created by the 1776 Constitution and given power over the legislature,
the Council of Censors — rapidly intensified, such that the Commonwealth’s
government became paralyzed by dysfunction, so much so that the Continental
Congress threatened to take it over. Gedid, at 52. These two factions vied for control
67
As utilized in this history, this designation referred only to their views on the proper
structure of governance, and does not refer to the modern Republican Party which
came into being 60 years later. Gedid, at 52.
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of the Council of Censors and the General Assembly throughout the late 1770s and
1780s. The Republicans, though well represented on the Council of Censors, could not
garner the necessary votes to call a constitutional convention under its rules. However,
popular dissatisfaction with the chaotic state of the Commonwealth’s governance grew
to such a degree that the Republicans gained control of the General Assembly in 1788,
and, in November 1789, they passed legislation to call a constitutional convention.
Branning, at 19.
Although there was some opposition to the calling of the convention by the
Constitutionalists, given that the 1776 Constitution contained no explicit authorization for
the assembly to do so, they, nevertheless, agreed to participate in the convention which
began on November 24, 1789. Rather than continuing the internecine strife that had
continually threatened the new Commonwealth’s government, the leaders of the
Constitutionalists, who were prominent political leaders with deep experience serving in
the Commonwealth government, such as William Findley, forged what was regarded as
an unexpected alliance with powerful members of the leadership of the Republicans,
particularly James Wilson. Foster, at 128-29. The coalition of delegates shepherded by
Findley and Wilson in producing a new Constitution was remarkable, given the regional
and ideological strife which had preceded the convention. Its members represented 16
of the state’s 21 counties, and they came from widely divergent geographic regions of
the Commonwealth, ranging from Northampton County in the northeastern region of the
state to Allegheny and Washington counties in the west. These delegates thus
represented a wide spectrum of people with diverse political, ideological, and religious
views. Id. at 131. Their work yielded a Constitution which, while making the structural
reforms to the Commonwealth’s government favored by the Republicans, such as the
adoption of a bicameral legislature and the creation of the office of chief executive with
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veto power over legislation, also preserved the principle cherished most by the
Constitutionalists – namely, popular elections in which the people’s right to elect their
representatives in government would be equally available to all, and would, hereinafter,
not be intentionally diminished by laws that discriminated against a voter based on his
social or economic status, geography of his residence, or his religious and political
beliefs. Id. at 137-38.
Consequently, popular election of representatives was maintained by the new
Constitution, and applicable in all elections for both houses of the bicameral legislature.
Importantly, consistent with the evident desire of the delegates to neutralize the factors
which had formerly given rise to such rancorous division amongst the people in the
selection of their representatives, the language of Article I, Section 5 was revised to
remove all prior ambiguous qualifying language. In its place, the delegates adopted the
present language of the first clause of Article I, Section 5, which has remained
unchanged to this day by the people of this Commonwealth.68 It states, simply and
plainly, that “elections shall be free and equal.”69
When viewed against the backdrop of the intense and seemingly unending
regional, ideological, and sectarian strife detailed above, which bitterly divided the
people of various regions of our state, this provision must be understood then as a
salutary effort by the learned delegates to the 1790 convention to end, once and for all,
68
The 1790 Constitution was never ratified by popular vote; however, all subsequent
constitutions in which this language is included have been ratified by the people of the
Commonwealth.
69
Indeed, the majority of delegates expressly rejected a proposal to remove the “and
equal” language from the revised amendment. Minutes of the Constitutional Convention
of 1789 at 377. Ours, thus, became the first constitution to utilize this language, and
other states such as Delaware, following our lead, adopted the same language into their
constitution a mere two years later in 1792. Eleven other states since then have
included a “free and equal” clause in their constitutions.
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the primary cause of popular dissatisfaction which undermined the governance of
Pennsylvania: namely, the dilution of the right of the people of this Commonwealth to
select representatives to govern their affairs based on considerations of the region of
the state in which they lived, and the religious and political beliefs to which they
adhered. These historical motivations of the framers have undergirded our Court’s
interpretation of the Free and Equal Elections Clause throughout the years since its
inclusion in our Constitution.
3. Pennsylvania Case Law
As one noted commentator on the Pennsylvania Constitution, Charles Buckalew,
himself a delegate to the 1873 Constitutional Convention, opined, given the
aforementioned history, the words “free and equal” as used in Article I, Section 5 have a
broad and wide sweep:
They strike not only at privacy and partiality in popular
elections, but also at corruption, compulsion, and other
undue influences by which elections may be assailed; at all
regulations of law which shall impair the right of suffrage
rather than facilitate or reasonably direct the manner of its
exercise, and at all its limitations, unproclaimed by the
Constitution, upon the eligibility of the electors for office. And
they exclude not only all invidious discriminations between
individual electors, or classes of electors, but also between
different sections or places in the State.
Charles R. Buckalew, An Examination of the Constitution of Pennsylvania. Exhibiting
The Derivation and History of Its Several Provisions, Article I at 10 (1883).
Our Court has ascribed the same expansive meaning to the terms “free and
equal” in Article I, Section 5. Although our Court has infrequently relied on this provision
to strike down acts of the legislature pertaining to the conduct of elections, the
qualifications of voters to participate therein, or the creation of electoral districts, our
view as to what constraints Article I, Section 5 places on the legislature in these areas
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has been consistent over the years. Indeed, nearly 150 years ago, in considering a
challenge to an act of the legislature establishing eligibility qualifications for electors to
vote in all elections held in Philadelphia, and specifying the manner in which those
elections are to be conducted, we recognized that, while our Constitution gives to the
General Assembly the power to promulgate laws governing elections, those enactments
are nonetheless subject to the requirements of the Free and Equal Elections Clause of
our Constitution, and, hence, may be invalidated by our Court “in a case of plain,
palpable and clear abuse of the power which actually infringes the rights of the
electors.” Patterson, 60 Pa. at 75.
In answering the question of how elections must be made equal, we stated:
“Clearly by laws which shall arrange all the qualified electors into suitable districts, and
make their votes equally potent in the election; so that some shall not have more votes
than others, and that all shall have an equal share in filling the offices of the
Commonwealth.” Id. Thus, with this decision, our Court established that any legislative
scheme which has the effect of impermissibly diluting the potency of an individual’s vote
for candidates for elective office relative to that of other voters will violate the guarantee
of “free and equal” elections afforded by Article I, Section 5. See City of Bethlehem,
515 A.2d at 1323-24 (recognizing that a legislative enactment which “dilutes the vote of
any segment of the constituency” will violate Article I, Section 5). This interpretation is
wholly consonant with the intent of the framers of the 1790 Constitution to ensure that
each voter will have an equally effective power to select the representative of his or her
choice, free from any discrimination on the basis of his or her particular beliefs or views.
In the nearly 150 years since Patterson, our Court has not retreated from this
interpretation of the Free and Equal Elections Clause. In 1914, our Court, in the case of
Winston, supra, considered a challenge under the Free and Equal Elections Clause to
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an act of the legislature which set standards regulating the nominations and elections
for judges and elective offices in the City of Philadelphia. Although our Court ultimately
ruled that the act did not violate this clause, we again reaffirmed that the clause
protected a voter’s individual right to an equal, nondiscriminatory electoral process. In
describing the minimum requirements for “free and fair” elections, we stated:
[E]lections are free and equal within the meaning of the
Constitution when they are public and open to all qualified
electors alike; when every voter has the same right as every
other voter; when each voter under the law has the right to
cast his ballot and have it honestly counted; when the
regulation of the right to exercise the franchise does not
deny the franchise itself, or make it so difficult as to amount
to a denial; and when no constitutional right of the qualified
elector is subverted or denied him.
Winston, 91 A. at 523.
We relied on these principles in the case of In re New Britain Borough School
District, 145 A. 597 (Pa. 1929), to strike down the legislative creation of voting districts
for elective office which, although not overtly depriving electors therein of their right to
choose candidates for office secured by the Free and Equal Elections Clause,
nevertheless operated to impair that right. In that case, the legislature created a new
borough from parts of two existing townships and created a school district which
overlapped the boundaries of the new borough. The new district, thus, encompassed
part of the school district in each of the townships from which it was created. Pursuant
to other acts of the legislature then in force, the court of common pleas of the county in
which the district was situated, upon petition of taxpayers and electors in the newly
created borough, appointed a board of school directors. The creation of the new school
district was ultimately not approved as required by other legislation mandating the
assent of the state board of elections for the creation of the district, and, thus,
technically the residents of the new borough remained within their old school districts.
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Residents of each of the former townships challenged the constitutionality of the
effect of the combination of their former respective school districts under the Free and
Equal Elections Clause, arguing that they had been deprived of their right to select
school directors. Our Court agreed, and found that the residents of the two former
school districts were effectively denied their right to elect representatives of their
choosing to represent them on a body which would decide how their tax monies were
spent. We noted that the residents of the newly created school district could not lawfully
vote for representatives on the school boards of their prior districts, given that they were
no longer legally residents thereof, and they also could not lawfully vote for school
directors in the newly created school district, given that the ballot for every voter was
required to be the same, and, because the new school district had not been approved,
the two groups of borough residents would each have to be given separate ballots for
their former districts. In our discussion of the Free and Equal Elections Clause, our
Court emphasized that the rights protected by this provision may not be taken away by
an act of the legislature, and that that body is prohibited by this clause from interfering
with the exercise of those rights, even if the interference occurs by inadvertence. Id. at
599.
While it is true that our Court has not heretofore held that a redistricting plan
violates the Free and Equal Elections Clause – for example, because it is the product of
politically-motivated gerrymandering – we have never precluded such a claim in our
jurisprudence. Our Court considered a challenge under Article I, Section 5 rooted in
alleged political gerrymandering in the creation of state legislative districts in In re 1991
Pennsylvania Legislative Reapportionment Comm’n, supra. In that case, we entertained
and rejected a claim that political gerrymandering operated to deny a candidate’s
claimed right to run for state legislative office under this provision. We found that the
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individual’s constitutionally protected right to run for state legislative office was protected
by the redistricting plan, but concluded that right did not extend so far as to require that
a reapportionment plan be tailored to allow him to challenge the incumbent of his
choice.
More saliently, in Erfer, our Court specifically held that challenges to the
enactment of a congressional redistricting plan predicated on claims of impermissible
political gerrymandering may be brought under Article I, Section 5. Therein, we
rebuffed the argument that Article I, Section 5 was limited in its scope of application to
only elections of Commonwealth officials, inasmuch as there was nothing in the plain
text of this provision which would so limit it. Likewise, our own review of the historical
circumstances surrounding its inclusion in the 1790 Constitution, discussed above,
supports our interpretation.
Moreover, in Erfer, we rejected the argument, advanced by Legislative
Respondents in their post-argument filing seeking a stay of our Court’s order of January
22, 2018,70 that, because Article I, Section 4 of the United States Constitution confers
on state legislatures the power to enact congressional redistricting plans, such plans are
not subject to the requirements of the Pennsylvania Constitution:
It is true that the U.S. Constitution has granted our
legislature the power to craft congressional reapportionment
plans. Yet, we see no indication that such a grant of power
simultaneously suspended the constitution of our
Commonwealth vis à vis congressional reapportionment.
Without clear support for the radical conclusion that our
Commonwealth’s Constitution is nullified in challenges to
congressional reapportionment plans, it would be highly
inappropriate for us to circumscribe the operation of the
organic legal document of our Commonwealth.
70
See supra note 8.
[J-1-2018] - 113
Id. at 331.
Ultimately, in Erfer, we did not opine on whether, under our prior decisions
interpreting Article I, Section 5, a congressional redistricting plan would be violative of
the Free and Equal Elections Clause because of political gerrymandering. Although the
petitioners in that case alleged that the redistricting plan at issue therein violated Article
I, Section 5, our Court determined that they had not provided sufficient reasons for us to
interpret our constitutional provision as furnishing additional protections of the right to
vote beyond those recognized by the United States Supreme Court as conferred by the
Equal Protection Clause of the United States Constitution. See id. at 332 (“Petitioners
provide us with no persuasive argument as to why we should, at this juncture, interpret
our constitution in such a fashion that the right to vote is more expansive than the
guarantee found in the federal constitution.”). Thus, we adjudicated the Article I,
Section 5 challenge in that case solely on federal equal protection grounds, and
rejected it, based on the test for such claims articulated by the plurality of the United
States Supreme Court in Bandemer, supra.
Importantly, however, our Court in Erfer did not foreclose future challenges under
Article I, Section 5 resting solely on independent state grounds. Indeed, the unique
historical reasons discussed above, which were the genesis of Article I, Section 5, and
its straightforward directive that “elections shall be free and equal” suggests such a
separate analysis is warranted. The Free and Equal Elections Clause was specifically
intended to equalize the power of voters in our Commonwealth’s election process, and it
explicitly confers this guarantee; by contrast, the Equal Protection Clause was added to
the United States Constitution 78 years later with the ratification of the Fourteenth
Amendment to address manifest legal inequities which were contributing causes of the
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Civil War, and which persisted in its aftermath, and it contains no such unambiguous
protections.
Moreover, and importantly, when properly presented with the argument, our
Court entertains as distinct claims brought under the Free and Equal Elections Clause
of our Constitution and the federal Equal Protection Clause, and we adjudicate them
separately, utilizing the relevant Pennsylvania and federal standards. In Shankey v.
Staisey, 257 A.2d 897 (Pa. 1969), a group of third-party voters challenged a
Pennsylvania election statute which specified that, in order for an individual’s vote for a
third-party candidate for a particular office in the primary election to be counted, the total
number of aggregate votes by third-party voters for that office had to equal or exceed
the number of signatures required on a nominating petition to be listed on the ballot as a
candidate for that office. The voters’ challenge, which was brought under both the Free
and Equal Elections Clause of the Pennsylvania Constitution and the Equal Protection
Clause of the United States Constitution, alleged that these requirements wrongfully
equated public petitions with ballots, thereby imposing a more stringent standard for
their vote to be counted than that which voters casting ballots for major party candidates
had to meet.
Our Court applied different constitutional standards in deciding these claims. In
considering and rejecting the Article I, Section 5 claim – that the third-party candidates’
right to vote was diminished because of these special requirements – our Court applied
the interpretation of the Free and Equal Elections Clause set forth in Winston, supra,
and ruled that, because the statute required major party candidates and third party
candidates to demonstrate the same numerical level of voter support for their votes to
be counted, the fact that this demonstration was made by ballot as opposed to by
petition did not render the election process unequal. By contrast, in adjudicating the
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equal protection claim, our Court utilized the test for an equal protection clause violation
articulated by the United States Supreme Court and examined whether the statute
served to impermissibly classify voters without a reasonable basis to do so.
Given the nature of the petitioners’ argument in Erfer, which was founded on their
apparent belief that the protections of Article I, Section 5 and Article 1, Section 26 were
coextensive, our Court was not called upon, therein, to reassess the validity of the
Shankey Court’s use of a separate and distinct standard for adjudicating a claim that a
particular legislative enactment involving the electoral process violates the Free and
Equal Elections Clause, from that used to determine if the enactment violates the
federal Equal Protection Clause. Thus, we reject Justice Mundy’s assertion that Erfer
requires us, under the principles of stare decisis, to utilize the same standard to
adjudicate a claim of violation of the Free and Equal Elections Clause and the federal
Equal Protection Clause. See Dissenting Opinion (Mundy, J.) at 2-3. To the extent that
Erfer can be read for that proposition, we expressly disavow it, and presently reaffirm
that, in accord with Shankey and the particular history of the Free and Equal Elections
Clause, recounted above, the two distinct claims remain subject to entirely separate
jurisprudential considerations.71
71
Like Pennsylvania, a number of other states go further than merely recognizing the
right to vote, and provide additional and independent protections through provisions in
their constitutions guaranteeing that their elections shall be “free and equal.” Pa. Const.
art. I, § 5. More specifically, the constitutions of twelve additional states contain election
clauses identical to our charter, requiring elections to be “free and equal.” These twelve
other states are: Arizona, Ariz. Const. art. II, § 21; Arkansas, Ark. Const. art. 3, § 2;
Delaware, Del. Const. art. I, § 3; Illinois, Ill. Const. art. III, § 3; Indiana, Ind. Const. art. 2,
§ 1; Kentucky, Ky. Const. § 6; Oklahoma, Okla. Const. art. III, § 5; Oregon, Or. Const.
art. II, § 1; South Dakota, S.D. Const. art. VI, § 19; Tennessee, Tenn. Const. art. I, § 5;
Washington, Wash. Const. art. I, § 19; and Wyoming, Wy. Const. art. I, § 27. While few
have faced reapportionment challenges, state courts have breathed meaning into these
unique constitutional provisions, a few of which are set forth below by way of example.
Specifically, last year, the Court of Chancery of Delaware, in an in-depth treatment of
Delaware’s Constitution, much like that engaged in by our Court today, considered a
(continued…)
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4. Other Considerations
In addition to the occasion for the adoption of the Free and Equal Elections
Clause, the circumstances in which the provision was adopted, the mischief to be
remedied, and the object to be obtained, as described above, the consequences of a
particular interpretation are also relevant in our analysis. Specifically, partisan
gerrymandering dilutes the votes of those who in prior elections voted for the party not
(…continued)
challenge to family-focused events at polling places on election day which induced
parents of students to vote, but which operated as impediments to voting by the elderly
and disabled. In concluding such conduct violated the Delaware Constitution’s
Elections Clause, the court reasoned that an election which provided a targeted group
specific incentives to vote was neither free nor equal, noting the historical concerns in
Delaware regarding the integrity of the election process. Young v. Red Clay
Consolidated School, 159 A.3d 713, 758, 763 (Del. Ch. 2017).
Even more apt, two states, Illinois and Kentucky, have long traditions regarding the
application and interpretation of their elections clauses. In an early Illinois decision, the
Illinois Supreme Court, considering a challenge to a congressional apportionment
statute, cited to the Illinois Constitution and concluded: “[a]n election is free where the
voters are exposed to no intimidation or improper influence and where each voter is
allowed to cast his ballot as his own conscience dictates. Elections are equal when the
vote of each voter is equal in its influence upon the result to the vote of every other
elector—where each ballot is as effective as every other ballot.” Moran v. Bowley, 179
N.E. 526, 531 (Ill. 1932). Similarly, in an early Kentucky decision involving the lack of
printed ballots leaving numerous voters unable to exercise the franchise, that state’s
high court offered that “[t]he very purpose of elections is to obtain a full, fair, and free
expression of the popular will upon the matter, whatever it may be, submitted to the
people for their approval or rejection; and when any substantial number of legal voters
are, from any cause, denied the right to vote, the election is not free and equal, in the
meaning of the [Kentucky] Constitution.” Wallbrecht v. Ingram, 175 S.W. 1022, 1026
(Ky. 1915).
Thus, other states with identical constitutional provisions have considered and applied
their elections clauses to a variety of election challenges, providing important
protections for their voters. While those states whose constitutions have identical “free
and equal” language to that of the Pennsylvania Constitution have not addressed the
identical issue before us today, they, and other states, have been willing to consider and
invigorate their provisions similarly, providing an equal right to each citizen, on par with
every other citizen, to elect their representatives.
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in power to give the party in power a lasting electoral advantage. By placing voters
preferring one party’s candidates in districts where their votes are wasted on candidates
likely to lose (cracking), or by placing such voters in districts where their votes are cast
for candidates destined to win (packing), the non-favored party’s votes are diluted. It is
axiomatic that a diluted vote is not an equal vote, as all voters do not have an equal
opportunity to translate their votes into representation. This is the antithesis of a healthy
representative democracy. Indeed, for our form of government to operate as intended,
each and every Pennsylvania voter must have the same free and equal opportunity to
select his or her representatives. As our foregoing discussion has illustrated, our
Commonwealth’s commitment to neutralizing factors which unfairly impede or dilute
individuals’ rights to select their representatives was borne of our forebears’ bitter
personal experience suffering the pernicious effects resulting from previous electoral
schemes that sanctioned such discrimination. Furthermore, adoption of a broad
interpretation guards against the risk of unfairly rendering votes nugatory, artificially
entrenching representative power, and discouraging voters from participating in the
electoral process because they have come to believe that the power of their individual
vote has been diminished to the point that it “does not count.” A broad and robust
interpretation of Article I, Section 5 serves as a bulwark against the adverse
consequences of partisan gerrymandering.
5. Conclusion
The above analysis of the Free and Equal Elections Clause – its plain language,
its history, the occasion for the provision and the circumstances in which it was adopted,
the case law interpreting this clause, and consideration of the consequences of our
interpretation – leads us to conclude the Clause should be given the broadest
interpretation, one which governs all aspects of the electoral process, and which
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provides the people of this Commonwealth an equally effective power to select the
representative of his or her choice, and bars the dilution of the people’s power to do so.
B. Measurement of Compliance with Article I, Section 5
We turn now to the question of what measures should be utilized to assess a
dilution claim under the Free and Equal Elections Clause of the Pennsylvania
Constitution. Neither Article 1, Section 5, nor any other provision of our Constitution,
articulates explicit standards which are to be used in the creation of congressional
districts. However, since the inclusion of the Free and Equal Elections Clause in our
Constitution in 1790, certain neutral criteria have, as a general matter, been traditionally
utilized to guide the formation of our Commonwealth’s legislative districts in order to
prevent the dilution of an individual’s vote for a representative in the General Assembly.
These standards place the greatest emphasis on creating representational districts that
both maintain the geographical and social cohesion of the communities in which people
live and conduct the majority of their day-to-day affairs, and accord equal weight to the
votes of residents in each of the various districts in determining the ultimate composition
of the state legislature.
Significantly, the framers of the 1790 constitution who authored the Free and
Equal Elections Clause also included a mandatory requirement therein for the
legislature’s formation of state senatorial districts covering multiple counties, namely
that the counties must adjoin one another. Also, the architects of that charter expressly
prohibited the division of any county of the Commonwealth, or the City of Philadelphia,
in the formation of such districts. Pa. Const. of 1776, § 7. Thus, as preventing the
dilution of an individual’s vote was of paramount concern to that august group, it is
evident that they considered maintaining the geographical contiguity of political
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subdivisions, and barring the splitting thereof in the process of creating legislative
districts, to afford important safeguards against that pernicious prospect.
In the eight-plus decades after the 1790 Constitution became our
Commonwealth’s fundamental plan of governance, many problems arose from the
corruption of the political process by well-heeled special interest groups who rendered
our representative democracy deeply dysfunctional by weakening the power of an
individual’s vote through, inter alia, their selection, and financial backing in the electoral
process, of representatives who exclusively served their narrow interests and not those
of the people as a whole. Gedid, supra, at 61-63. One of the methods by which the
electoral process was manipulated by these interest groups to attain those objectives
was the practice of gerrymandering, popular revulsion of which became one of the
driving factors behind the populace’s demand for the calling of the 1873 Constitutional
Convention.
As noted by an eminent authority on Pennsylvania constitutional law, by the time
of that convention, gerrymandering was regarded as “one of the most flagrant evils and
scandals of the time, involving notorious wrong to the people and open disgrace to
republican institutions.” Thomas Raeburn White, Commentaries on the Constitution of
Pennsylvania 61 (1907). Although the delegates to that convention did not completely
eliminate this practice through the charter of governance which they adopted, and which
the voters subsequently approved, they nevertheless included significant protections
against its occurrence through the explicit adoption of certain requirements which all
state legislative districts were, thereafter, required to meet: (1) the population of such
districts must be equal, to the extent possible; (2) the district that is created must be
comprised of compact and contiguous geographical territory; and (3) the district
respects the boundaries of existing political subdivisions contained therein, such that
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the district divides as few of those subdivisions as possible. Pa. Const. of 1874, art. 2,
§ 16. Given the great concern of the delegates over the practice of gerrymandering
occasioned by their recognition of the corrosive effects on our entire democratic process
through the deliberate dilution of our citizenry’s individual votes, the focus on these
neutral factors must be viewed, then, as part of a broader effort by the delegates to that
convention to establish “the best methods of representation to secure a just expression
of the popular will.” Branning at 59 (quoting Wayne Mac Veach, Debates of the
Convention to Amend the Constitution of Pennsylvania, Volume I at 45 (1873)).
Consequently, these factors have broader applicability beyond setting standards for the
drawing of electoral districts for state legislative office.
The utility of these requirements to prevent vote dilution through gerrymandering
retains continuing vitality, as evidenced by our present Constitution, adopted in 1968. In
that charter, these basic requirements for the creation of senatorial districts were not
only retained, but, indeed, were expanded by the voters to govern the establishment of
election districts for the selection of their representatives in the state House of
Representatives. Pa. Const., art. 2, § 16.
Because these factors are deeply rooted in the organic law of our
Commonwealth, and continue to be the foundational requirements which state
legislative districts must meet under the Pennsylvania Constitution, we find these
neutral benchmarks to be particularly suitable as a measure in assessing whether a
congressional districting plan dilutes the potency of an individual’s ability to select the
congressional representative of his or her choice, and thereby violates the Free and
Equal Elections Clause. In our judgment, they are wholly consistent with the
overarching intent of the framers of the 1790 Constitution that an individual’s electoral
power not be diminished through any law which discriminatorily dilutes the power of his
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or her vote, and, thus, they are a measure by which to assess whether the guarantee to
our citizenry of “free and equal” elections promised by Article, I Section 5 in the
selection of their congressional representative has been violated. Because the
character of these factors is fundamentally impartial in nature, their utilization reduces
the likelihood of the creation of congressional districts which confer on any voter an
unequal advantage by giving his or her vote greater weight in the selection of a
congressional representative as prohibited by Article I, Section 5. Thus, use of these
objective factors substantially reduces the risk that a voter in a particular congressional
district will unfairly suffer the dilution of the power of his or her vote.
Moreover, rather than impermissibly lessening the power of an individual’s vote
based on the geographical area in which the individual resides – which, as explained
above, Article I, Section 5 also prohibits – the use of compactness, contiguity, and the
maintenance of the integrity of the boundaries of political subdivisions maintains the
strength of an individual’s vote in electing a congressional representative. When an
individual is grouped with other members of his or her community in a congressional
district for purposes of voting, the commonality of the interests shared with the other
voters in the community increases the ability of the individual to elect a congressional
representative for the district who reflects his or her personal preferences. This
approach inures to no political party’s benefit or detriment. It simply achieves the
constitutional goal of fair and equal elections for all of our Commonwealth’s voters.
Finally, these standards also comport with the minimum requirements for congressional
districts guaranteed by the United States Constitution, as interpreted by the United
States Supreme Court. See Wesberry v. Sanders, 376 U.S. 1, 18 (1964) (holding that
the plain objective of the United States Constitution is to make “equal representation for
equal numbers of people the fundamental goal for the House of Representatives.”).
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Consequently, for all of these reasons, and as expressly set forth in our Order of
January 22, 2018, we adopt these measures as appropriate in determining whether a
congressional redistricting plan violates the Free and Equal Elections Clause of the
Pennsylvania Constitution. Therefore, an essential part of such an inquiry is an
examination of whether the congressional districts created under a redistricting plan are:
composed of compact and contiguous territory; as nearly
equal in population as practicable; and which do not divide
any county, city, incorporated town, borough, township, or
ward, except where necessary to ensure equality of
population.
Order, 1/22/19, at ¶ “Fourth.”72
We recognize that other factors have historically played a role in the drawing of
legislative districts, such as the preservation of prior district lines, protection of
incumbents, or the maintenance of the political balance which existed after the prior
reapportionment. See, e.g., Holt I, 38 A.3d at 1235. However, we view these factors to
be wholly subordinate to the neutral criteria of compactness, contiguity, minimization of
the division of political subdivisions, and maintenance of population equality among
congressional districts. These neutral criteria provide a “floor” of protection for an
individual against the dilution of his or her vote in the creation of such districts.
When, however, it is demonstrated that, in the creation of congressional districts,
these neutral criteria have been subordinated, in whole or in part, to extraneous
considerations such as gerrymandering for unfair partisan political advantage, a
congressional redistricting plan violates Article I, Section 5 of the Pennsylvania
Constitution. We note that, consistent with our prior interpretation of Article I, Section 5,
72
Nothing herein is intended to suggest that congressional district maps must not also
comply with federal law, and, most specifically, the Voting Rights Act, 52 U.S.C. §
10301.
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see In re New Britain Borough School District, supra, this standard does not require a
showing that the creators of congressional districts intentionally subordinated these
traditional criteria to other considerations in the creation of the district in order for it to
violate Article I, Section 5; rather, it is sufficient to establish a violation of this section to
show that these traditional criteria were subordinated to other factors.
However, this is not the exclusive means by which a violation of Article I, Section
5 may be established. As we have repeatedly emphasized throughout our discussion,
the overarching objective of this provision 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. We recognize, then, that there exists the possibility that advances in map
drawing technology and analytical software can potentially allow mapmakers, in the
future, to engineer congressional districting maps, which, although minimally comporting
with these neutral “floor” criteria, nevertheless operate to unfairly dilute the power of a
particular group’s vote for a congressional representative. See N.T. Trial, 12/13/17, at
839-42 (Dr. Warshaw discussing the concept of an efficiency gap based on the number
of “wasted” votes for the minority political party under a particular redistricting plan).
However, as the case at bar may be resolved solely on the basis of consideration of the
degree to which neutral criteria were subordinated to the pursuit of partisan political
advantage, as discussed below, we need not address at this juncture the possibility of
such future claims.73
73
In her dissenting opinion, Justice Mundy inexplicably contends that our allowance for
the possibility that a future challenge to a future plan might show dilution even though
the neutral redistricting criteria were adhered to “undermines the conclusion” that there
is a violation in this case. Dissenting Opinion (Mundy, J.) at 3. However, as we state
above, and as we discuss further below, assessment of those criteria fully, and solely,
supports our conclusion in this case.
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We are confident, however, that, technology can also be employed to aid in the
expeditious development of districting maps, the boundaries of which are drawn to
scrupulously adhere to neutral criteria. Indeed, as this Court highlighted in Holt I, “the
development of computer technology appears to have substantially allayed the initial,
extraordinary difficulties in” meeting such criteria. Holt I, 38 A.3d at 760; see also id. at
750 (noting that, since 1991, technology has provided tools allowing mapmakers to
“achieve increasingly ‘ideal’ districts”) (citing Gormley, Legislative Reapportionment, at
26–27, 45–47); see also Larios v. Cox, 305 F.Supp.2d. 1335, 1342 (N.D. Ga. 2004)
(“given recent advances in computer technology, constitutional plans can be crafted in
as short a period as one day”). As this Court views the record in this case, in the
context of the computer technology of 2018, this thesis has clearly been proven.
C. Application to the 2011 Plan
Having established the means by which we measure a violation of Article I,
Section 5, we now apply that measure to the 2011 Plan. Doing so, it is clear, plain, and
palpable that the 2011 Plan subordinates the traditional redistricting criteria in the
service of partisan advantage, and thereby deprives Petitioners of their state
constitutional right to free and equal elections. See West Mifflin Area School District, 4
A.3d at 1048. Indeed, the compelling expert statistical evidence presented before the
Commonwealth Court, in combination with and illustrated by an examination of the Plan
itself and the remainder of the evidence presented below, demonstrates that the Plan
cannot plausibly be directed at drawing equally populous, compact, and contiguous
districts which divide political subdivisions only as necessary to ensure equal
population.
Perhaps the most compelling evidence concerning the 2011 Plan derives from
Dr. Chen’s expert testimony. As detailed above, Dr. Chen created two sets of 500
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computer-simulated Pennsylvania redistricting plans, the first of which – Simulated Set
1 – employed the traditional redistricting criteria of population equality, compactness,
contiguousness, and political-subdivision integrity – i.e., a simulation of the potential
range of redistricting plans attempting to apply the traditional redistricting criteria. Dr.
Chen’s Simulated Set 1 plans achieved population equality and contiguity; had a range
of Reock Compactness Scores from approximately .31 to .46, which was significantly
more compact than the 2011 Plan’s score of .278; and had a range of Popper-Polsby
Compactness Scores from approximately .29 to .35, which was significantly more
compact than the 2011 Plan’s score of .164. Further, his simulated plans generally split
between 12-14 counties and 40-58 municipalities, in sharp contrast to the 2011 Plan’s
far greater 28 county splits and 68 municipality splits. In other words, all of Dr. Chen’s
Simulated Set 1 plans, which were, again, a simulation of the potential range of
redistricting plans attempting to apply the traditional redistricting criteria, were more
compact and split fewer political subdivisions than the 2011 Plan, establishing that a
process satisfying these traditional criteria would not lead to the 2011 Plan’s adoption.
Thus, Dr. Chen unsurprisingly opined that the 2011 Plan subordinated the goals of
compactness and political-subdivision integrity to other considerations.74 Dr. Chen’s
testimony in this regard establishes that the 2011 Plan did not primarily consider, much
less endeavor to satisfy, the traditional redistricting criteria.75
74
Dr. Chen also credibly rebutted the notion that the 2011 Plan’s outlier status derived
from a hypothetical attempt to protect congressional incumbents – which attempt still, in
any event, subordinated the traditional redistricting factors to others – or an attempt to
establish the 2011 Plan’s majority African-American district.
75
Indeed, the advent of advanced technology and increased computing power
underlying Dr. Chen’s compelling analysis shows such technology need not be
employed, as the record shows herein, for illicit partisan gerrymandering. As discussed
above, such tools will, just as powerfully, aid the legislature in performing its redistricting
function in comportment with traditional redistricting factors and their constituents’
(continued…)
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Dr. Chen’s testimony in this regard comports with a lay examination of the Plan,
which reveals tortuously drawn districts that cause plainly unnecessary political-
subdivision splits. In terms of compactness, a rudimentary review reveals a map
comprised of oddly shaped, sprawling districts which wander seemingly arbitrarily
across Pennsylvania, leaving 28 counties, 68 political subdivisions, and numerous
wards, divided among as many as five congressional districts, in their wakes.
Significantly, these districts often rend municipalities from their surrounding metropolitan
areas and quizzically divide small municipalities which could easily be incorporated into
single districts without detriment to the traditional redistricting criteria. As Dr. Kennedy
explained below, the 7th Congressional District, pictured above, has been referred to as
resembling “Goofy kicking Donald Duck,” and is perhaps chief among a number of rivals
in this regard, ambling from Philadelphia’s suburbs in central Montgomery County,
where it borders four other districts, south into Delaware County, where it abuts a fifth,
then west into Chester County, where it abuts another district and travels northwest
before jutting out in both northerly and southerly directions into Berks and Lancaster
Counties. Indeed, it is difficult to imagine how a district as Rorschachian and sprawling,
which is contiguous in two locations only by virtue of a medical facility and a
seafood/steakhouse, respectively, might plausibly be referred to as “compact.”
Moreover, in terms of political subdivision splits, the 7 th Congressional District splits
each of the five counties in its path and some 26 separate political subdivisions between
multiple congressional districts. In other words, the 7th Congressional District is itself
responsible for 17% of the 2011 Plan’s county splits and 38% of its municipality splits.
(…continued)
constitutional rights, as well as aiding courts in their evaluations of whether the
legislature satisfied its obligations in this regard.
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The 7th Congressional District, however, is merely the starkest example of the
2011 Plan’s overall composition. As pictured above, and as discussed below, many of
the 2011 Plan’s congressional districts similarly sprawl through Pennsylvania’s
landscape, often contain “isthmuses” and “tentacles,” and almost entirely ignore the
integrity of political subdivisions in their trajectories.76 Although the 2011 Plan’s odd
shapes and seemingly arbitrary political subdivision splits are not themselves sufficient
to conclude it is not predicated on the traditional redistricting factors, Dr. Chen’s cogent
analysis confirms that these anomalous shapes are neither necessary to, nor within the
ordinary range of, plans generated with solicitude toward, applying traditional
redistricting considerations.
The fact that the 2011 Plan cannot, as a statistical matter, be a plan directed at
complying with traditional redistricting requirements is sufficient to establish that it
violates the Free and Equal Elections Clause. Nevertheless, we acknowledge the
multitude of evidence introduced in the Commonwealth Court showing that its deviation
from these traditional requirements was in service of, and effectively works to, the unfair
partisan advantage of Republican candidates in future congressional elections and,
conversely, dilutes Petitioners’ power to vote for congressional representatives who
represent their views. Dr. Chen explained that, while his simulated plans created a
range of up to 10 safe Republican districts with a mean-median vote gap of 0 to 4%, the
2011 Plan creates 13 safe Republican districts with a mean-median vote gap of 5.9%.
76
Indeed, the bulk of the 2011 Plan’s districts make then-Massachusetts Governor
Elbridge Gerry’s eponymous 1812 partisan redistricting plan, criticized at the time for its
salamander-like appearance – hence, “Gerry-mander” – and designed to dilute extant
Federalist political power, appear relatively benign in comparison. See generally
Jennifer Davis, “Elbridge Gerry and the Monstrous Gerrymander,”
https://blogs.loc.gov/law/2017/02/elbridge-gerry-and-the-monstrous-gerrymander (Feb.
10, 2017).
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Dr. Chen also credibly rejected the notion that the 2011 Plan’s outlier status in this
regard was attributable to an attempt to account for Pennsylvania’s political geography,
to protect incumbent congresspersons, or to establish the 2011 Plan’s majority-African
American district. Indeed, he explicitly concluded that the traditional redistricting criteria
were jettisoned in favor of unfair partisan gain. Dr. Warshaw’s testimony similarly
detailed how the 2011 Plan not only preserves the modest natural advantage, or vote
efficiency gap, in favor of Republican congressional candidates relative to Republicans’
statewide vote share – which owes to the fact that historically Democratic voters tend to
self-sort into metropolitan areas and which he testified, until the 2011 Plan, was “never
far from zero” percent – but also creates districts that increase that advantage to
between 15 to 24% relative to statewide vote share. In other words, in its disregard of
the traditional redistricting factors, the 2011 Plan consistently works toward and
accomplishes the concentration of the power of historically-Republican voters and,
conversely, the corresponding dilution of Petitioners’ power to elect their chosen
representatives.
Indeed, these statistical analyses are illustrated to some degree by Dr.
Kennedy’s discussion of the 2011 Plan’s particulars. Dr. Kennedy, for example,
explained that, at the district-by-district level, the 2011 Plan’s geospatial oddities and
divisions of political subdivisions and their wards effectively serve to establish a few
overwhelmingly Democratic districts and a large majority of less strong, but
nevertheless likely Republican districts. For example, the 1 st Congressional District,
beginning in Northeast Philadelphia and largely tracking the Delaware River,
occasionally reaches “tentacles” inland, incorporating Chester, Swarthmore, and other
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historically Democratic regions.77 Contrariwise, although the 3rd Congressional District
formerly contained traditionally-Democratic Erie County in its entirety, the 2011 Plan’s
3rd and 5th Congressional Districts now divide that constituency, making both districts
likely to elect Republican candidates.78 Additionally, it is notable that the 2011 Plan’s
accommodation for Pennsylvania’s loss of one congressional seat took the form of
redrawing its 12th Congressional District, a 120-mile-long district that abuts four others
and pitted two Democratic incumbent congressmen against one another in the next
cycle’s primary election, after which the victor of that contest lost to a Republican
candidate who gleaned 51.2% of the general election vote. These geographic
idiosyncrasies, the evidentiary record shows, served to strengthen the votes of voters
inclined to vote for Republicans in congressional races and weaken those inclined to
vote for Democrats.
In sum, we conclude that the evidence detailed above and the remaining
evidence of the record as a whole demonstrates that Petitioners have established that
the 2011 Plan subordinates the traditional redistricting criteria in service of achieving
unfair partisan advantage, and, thus, violates the Free and Equal Elections Clause of
the Pennsylvania Constitution. Such a plan, aimed at achieving unfair partisan gain,
undermines voters’ ability to exercise their right to vote in free and “equal” elections if
the term is to be interpreted in any credible way.
77
Notably, in the last three congressional elections, voters in the 1 st Congressional
District elected a Democratic candidate with 84.9%, 82.8%, and 82.2% of the vote,
respectively.
78
In the 2012 and 2014 congressional elections, voters in the 3 rd Congressional District
elected a Republican candidate with 57.1% and 60.6% of the vote, respectively, and, by
2016, the Republican candidate ran unopposed.
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An election corrupted by extensive, sophisticated gerrymandering and partisan
dilution of votes is not “free and equal.” In such circumstances, a “power, civil or
military,” to wit, the General Assembly, has in fact “interfere[d] to prevent the free
exercise of the right of suffrage.” Pa. Const. art. 1, § 5.
VI. Remedy
Having set forth why the 2011 Plan is constitutionally infirm, we turn to our
January 22, 2018 Order which directed a remedy for the illegal plan. Therein, our Court
initially invited our sister branches – the legislative and executive branches – to take
action, through the enactment of a remedial congressional districting plan; however,
recognizing the possibility that the legislature and executive would be unwilling or
unable to act, we indicated in our Order that, in that eventuality, we would fashion a
judicial remedial plan:
Second, should the Pennsylvania General Assembly
choose to submit a congressional districting plan that
satisfies the requirements of the Pennsylvania Constitution,
it shall submit such plan for consideration by the Governor
on or before February 9, 2018. If the Governor accepts the
General Assembly’s congressional districting plan, it shall be
submitted to this Court on or before February 15, 2018.
Third, should the General Assembly not submit a
congressional districting plan on or before February 9, 2018,
or should the Governor not approve the General Assembly’s
plan on or before February 15, 2018, this Court shall
proceed expeditiously to adopt a plan based on the
evidentiary record developed in the Commonwealth Court.
In anticipation of that eventuality, the parties shall have the
opportunity to be heard; to wit, all parties and intervenors
may submit to the Court proposed remedial districting plans
on or before February 15, 2018.
Order, 1/22/18, at ¶¶ “Second” and “Third.”
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As to the initial and preferred path of legislative and executive action, we note
that the primary responsibility and authority for drawing federal congressional legislative
districts rests squarely with the state legislature. See U.S. Const. art. I, § 4; Butcher,
216 A.2d at 458 (“[W]e considered it appropriate that the Legislature, the organ of
government with the primary responsibility for the task of reapportionment, be afforded
an additional opportunity to enact a constitutional reapportionment plan.”); Growe v.
Emison, 507 U.S. 25, 34 (1993) (stating that “the Constitution leaves with the States
primary responsibility for apportionment of their federal congressional and state
legislative districts”); Wise v. Lipscomb, 437 U.S. 535, 539 (1978); Reynolds, 377 U.S.
at 586. Thus, in recognizing this foundational tenet, but also considering both the
constitutionally infirm districting plan and the imminent approaching primary elections for
2018, we requested that these sister branches enact legislation regarding a new
districting plan, providing a deadline to do so approximately three weeks from the date
of our Order. Indeed, if the legislature and executive timely enact a remedial plan and
submit it to our Court, our role in this matter concludes, unless and until the
constitutionality of the new plan is challenged.
When, however, the legislature is unable or chooses not to act, it becomes the
judiciary's role to determine the appropriate redistricting plan. Specifically, while
statutes are cloaked with the presumption of constitutionality, it is the duty of this Court,
as a co-equal branch of government, to declare, when appropriate, certain acts
unconstitutional. Indeed, 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. Pap’s II, 812 A.2d at 611 (noting Supreme Court has final word on meaning
of Pennsylvania Constitution). Further, our Court possesses broad authority to craft
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meaningful remedies when required. Pa. Const. art. V, §§ 1, 2, 10; 42 Pa.C.S. § 726
(granting power to “enter a final order or otherwise cause right and justice to be done”).
Thus, as an alternative to the preferable legislative route for creating a remedial
redistricting plan, in our Order, we considered the possibility that the legislature and
Governor would not agree upon legislation providing for a remedial plan, and, thus, we
allowed for the prospect of a judicially-imposed remedial plan. Our narrowly crafted
contingency, which afforded all parties and Intervenors a full and fair opportunity to
submit proposed remedial plans for our consideration, was well within our judicial
authority, and supported by not only our Constitution and statutes as noted above, but
by Commonwealth and federal precedent, as well as similar remedies provided by the
high courts of other states acting when their sister branches fail to remedy an
unconstitutional plan.
Perhaps the clearest balancing of the legislature’s primary role in districting
against the court’s ultimate obligation to ensure a constitutional plan was set forth in our
decision in Butcher. In that matter, our Court, after concluding a constitutionally infirm
redistricting of both houses of the General Assembly resulted in an impairment of our
citizens’ right to vote, found it prudent to allow the legislature an additional opportunity
to enact a legal remedial plan. Butcher, 216 A.2d at 457-58. Yet, we also made clear
that a failure to act by the General Assembly by a date certain would result in judicial
action “to ensure that the individual voters of this Commonwealth are afforded their
constitutional right to cast an equally weighted vote.” Id. at 458-59. After the deadline
passed without enactment of the required statute, we fashioned affirmative relief, after
the submission of proposals by the parties. Id. at 459. Our Order in this matter, cited
above, is entirely consistent with our remedy in Butcher. See also Mellow v. Mitchell,
607 A.2d 204, 205-06 (Pa. 1992) (designating master in wake of legislative failure to
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remedy redistricting of seats for the Pennsylvania House of Representatives which was
held to be unconstitutional).
Our approach is also buttressed by, and entirely consistent with, the United
States Supreme Court’s landmark ruling in Baker v. Carr, 369 U.S. 186 (1962), and
more recent decisions from the United States Supreme Court which make concrete the
state judiciary’s ability to formulate a redistricting plan, when necessary. See, e.g.,
Growe; Scott v. Germano, 381 U.S. 407 (1965) (per curiam). As described by the high
Court in Wise, “Legislative bodies should not leave their reapportionment tasks to the
federal courts; but when those with legislative responsibilities do not respond, or the
imminence of a state election makes it impractical for them to do so, it becomes the
‘unwelcome obligation,’ Conner v. Finch, [431 U.S. 407, 415 (1977)], of the federal court
to devise and impose a reapportionment plan pending later legislative action.” Wise,
437 U.S. at 540. The same authority to act is inherent in the state judiciary.
Specifically, in Growe, the United States Supreme Court was faced with the issue
of concurrent jurisdiction between a federal district court and the Minnesota judiciary
regarding Minnesota’s state legislative and federal congressional districts. The high
Court, in a unanimous decision authored by Justice Scalia, specifically recognized the
role of the state judiciary in crafting relief: “In the reapportionment context, the Court has
required federal judges to defer [to] consideration of disputes involving redistricting
where the State, through its legislative or judicial branch, has begun to address that
highly political task itself.” Growe, 507 U.S. at 33 (emphasis original). As an even more
pointed endorsement of the state judiciary’s ability to craft appropriate relief – indeed,
encouraging action by the state judiciary – the Growe Court quoted its prior decision in
Scott:
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
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action by the States in such cases has been specifically
encouraged.
Id. at 33 (quoting Scott, 381 U.S. at 409) (emphasis added).
Thus, the Growe Court made clear the important role of the state judiciary in
ensuring valid reapportionment schemes, not only through an assessment of
constitutionality, but also through the enactment of valid legislative redistricting plans.
Pursuant to Growe, therefore, although the legislature has initial responsibility to act in
redistricting matters, that responsibility can shift to the state judiciary if a state
legislature is unable or unwilling to act, and then to the federal judiciary only once the
state legislature or state judiciary have not undertaken to remedy a constitutionally
infirm plan.
Finally, virtually every other state that has considered the issue looked, when
necessary, to the state judiciary to exercise its power to craft an affirmative remedy and
formulate a valid reapportionment plan. See, e.g., People ex rel. Salazar v. Davidson,
79 P.3d 1221, 1229 (Colo. 2003) (offering, in addressing the issue of how frequently the
legislature can draw congressional districts, that United States Supreme Court is clear
that states have the primary responsibility in congressional redistricting, and that federal
courts must defer to the states, including state courts, especially in matters turning on
state constitution); Hippert v. Richie, 813 N.W.2d 374, 378 (Minn. 2012) (explaining that,
as legislature and Governor failed to enact a legislative redistricting plan by deadline, it
was up to the state judiciary to prepare a valid legislative plan and order its adoption,
citing Growe as “precisely the sort of state judicial supervision of redistricting” that the
United States Supreme Court has encouraged); Brown v. Butterworth, 831 So. 2d 683,
688-89 (D.C. App. Fla 2002) (emphasizing constitutional power of state judiciary to
require valid reapportionment); Stephenson v. Bartlett, 562 S.E.2d 377, 384 (N.C. 2002)
(noting that it is only the Supreme Court of North Carolina that can answer state
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constitutional questions with finality, and that, “within the context of state redistricting
and reapportionment disputes, it is well within the ‘power of the judiciary of a State to
require valid reapportionment or to formulate a valid redistricting plan’” (quoting
Germano, 381 U.S. at 409)); Wilson v. Fallin, 262 P.3d 741, 745 (Okla. 2013) (holding
that three decades after Baker v. Carr, the United States Supreme Court in Growe was
clear that state courts may exercise jurisdiction over legislative redistricting and that
federal courts should defer to state action over questions of state redistricting by state
legislatures and state courts); Alexander v. Taylor, 51 P.3d 1204, 1208 (Okla. 2002) (“It
is clear to us that [Baker and Growe], . . . stand for the proposition that Art. 1, § 4 does
not prevent either federal or state courts from resolving redistricting disputes in a proper
case.”); Boneshirt v. Hazeltine, 700 N.W.2d 746, 755 (S.D. 2005) (Konenkamp, J.,
concurring) (opining that the Supreme Court recognized that “[t]he 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” and that both “[r]eason and experience argue
that courts empowered to invalidate an apportionment statute which transgresses
constitutional mandates cannot be left without the means to order appropriate relief.”);
Jensen v. Wisconsin Board of Elections, 639 N.W.2d 537, 542 (Wis. 2002) (per curiam)
(noting deference of federal courts regarding “consideration of disputes involving
redistricting where the State, through its legislative or judicial branch, has begun to
address that highly political task itself” and that “any redistricting plan judicially ‘enacted’
by a state court (just like one enacted by a state legislature) would be entitled to
presumptive full-faith-and-credit legal effect in federal court.”); but see Maudlin v.
Branch, 866 So. 2d 429 (Miss. 2003) (finding, under Mississippi statute, no Mississippi
court had jurisdiction to draw plans for congressional districting).
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Thus, it is beyond peradventure that it is the legislature, in the first instance, that
is primarily charged with the task of reapportionment. However, 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. Our prior Order,
and this Opinion, are entirely consistent with such authority.79
VII. Conclusion
For all of these reasons, the Court entered its Order of January 22, 2018, striking
as unconstitutional the Congressional Redistricting Act of 2011, and setting forth a
process assuring that a remedial redistricting plan would be in place in time for the 2018
Primary Elections.
Justices Donohue, Dougherty and Wecht join the opinion.
Justice Baer files a concurring and dissenting opinion.
Chief Justice Saylor files a dissenting opinion in which Justice Mundy joins.
79
Justice Mundy, in her dissent, seemingly reads the federal Elections Clause in a
vacuum, and, to the extent that she suggests an inability, or severely circumscribed
ability, of state courts generally, or of our Court sub judice, to act, this approach has not
been embraced or suggested by the United States Supreme Court or the Pennsylvania
Supreme Court for over a half century. Indeed, to read the federal Constitution in a way
that limits our Court in its power to remedy violations of our Commonwealth’s
Constitution is misguided and directly contrary to bedrock notions of federalism
embraced in our federal Constitution, and evinces a lack of respect for state rights. In
sum, and as fully set forth above, in light of interpretations of the Elections Clause like
that found in Growe – which encourage federal courts to defer to state redistricting
efforts, including congressional redistricting, and expressly permit the judicial creation of
redistricting maps when a legislature fails to act – as well as essential jurisprudential
concepts of comity and federalism, it is beyond peradventure that state courts possess
the authority to grant equitable remedies for constitutional violations, including the
drawing of congressional maps (of course, subject to federal safeguards and,
principally, the Voting Rights Act).
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Justice Mundy files a dissenting opinion.
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Appendix A
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