Corman et al v. Torres et al

Filing 1

VERIFIED COMPLAINT against All Defendants ( Filing fee $400, Receipt Number 0314-4346608) filed by Scott Perry, Michael Folmer, Lou Barletta, Glenn Thompson, Keith Rothfus, Ryan Costello, Lloyd Smucker, Jacob Corman, Mike Kelly, Tom Marino. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit(s) Part 1 of 3, # 3 Exhibit(s) Part 2 of 3, # 4 Exhibit(s) Part 3 of 3)(ve)

EXHIBIT A

IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

LEAGUE OF WOMEN VOTERS OF
PENNSYLVANIA, CARMEN FEBO SAN
MIGUEL, JAMES SOLOMON, JOHN
GREINER, JOHN CAPOWSKI,
GRETCHEN BRANDT, THOMAS
RENTSCHLER, MARY ELIZABETH
LAWN, LISA ISAACS, DON LANCASTER,
JORDI COMAS, ROBERT SMITH,
WILLIAM MARX, RICHARD MANTELL,
PRISCILLA MCNULTY, THOMAS
ULRICH, ROBERT MCKINSTRY, MARK
LICHTY, LORRAINE PETROSKY,

: No. 159 MM 2017
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:
:
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:
Petitioners
:
:
v.
:
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THE COMMONWEALTH OF
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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

:
:
:

ORDER
PER CURIAM
AND NOW, this 9th day of November, 2017, this Honorable Court, having
determined that the present case involves issues of immediate public importance
requiring this Court’s assumption of plenary jurisdiction, it is hereby ordered that
Petitioners’ Application for Extraordinary Relief is GRANTED.
On October 16, 2017, the Commonwealth Court granted an Application for Stay
filed by Respondents Joseph B. Scarnati, President Pro Tempore of the Pennsylvania
Senate, Michael C. Turzai, Speaker of the Pennsylvania House of Representatives, and
the General Assembly of Pennsylvania. This stay is hereby vacated and the case will
proceed expeditiously forthwith.
Under the continuing supervision of this Court, the case is hereby remanded to
the Commonwealth Court and directed to President Judge Mary Hannah Leavitt for
assignment to a commissioned judge of the Commonwealth Court with instructions to
conduct all necessary and appropriate discovery, pre-trial and trial proceedings so as to
create an evidentiary record on which Petitioners’ claims may be decided.

The

Commonwealth Court shall file with the Prothonotary of this Court its findings of fact and
conclusions of law no later than December 31, 2017.

Petitioners’ Application for Leave to File a Reply in Support of Petitioner’s
Application for Extraordinary Relief, Application for Leave to Supplement the Application

[159 MM 2017] - 2

for Extraordinary Relief, and Praecipe to Provide Supplemental Authority in Support of
Petitioners’ Application for Extraordinary Relief, treated as an application for leave to
supplement the Application for Extraordinary Relief, are hereby GRANTED.
Legislative Respondents’ Motion for Oral Argument is hereby DENIED.
Jurisdiction retained.

Chief Justice Saylor, Justice Baer and Justice Mundy note their dissent.

[159 MM 2017] - 3

The

EXHIBIT B

[J-1-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

LEAGUE OF WOMEN VOTERS OF
PENNSYLVANIA, CARMEN FEBO SAN
MIGUEL, JAMES SOLOMON, JOHN
GREINER, JOHN CAPOWSKI,
GRETCHEN BRANDT, THOMAS
RENTSCHLER, MARY ELIZABETH
LAWN, LISA ISAACS, DON LANCASTER,
JORDI COMAS, ROBERT SMITH,
WILLIAM MARX, RICHARD MANTELL,
PRISCILLA MCNULTY, THOMAS
ULRICH, ROBERT MCKINSTRY, MARK
LICHTY, LORRAINE PETROSKY,

: No. 159 MM 2017
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Petitioners
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v.
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:
:
THE COMMONWEALTH OF
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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

:
:
:
:

ORDER

PER CURIAM

DECIDED: January 22, 2018

AND NOW, this 22nd day of January, 2018, upon consideration of the Petition for
Review, the Commonwealth Court’s proposed findings of fact and conclusions of law,
the briefs of the parties, intervenors, and amici curiae, and the oral argument presented
on January 17, 2018, the Court orders as follows:
First, the Court finds as a matter of law that the Congressional Redistricting Act
of 2011 clearly, plainly and palpably violates the Constitution of the Commonwealth of
Pennsylvania, and, on that sole basis, we hereby strike it as unconstitutional.
Accordingly, its further use in elections for Pennsylvania seats in the United States
House of Representatives, commencing with the upcoming May 15, 2018 primary, is
hereby enjoined.
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

[J-1-2018] - 2

wit, all parties and intervenors may submit to the Court proposed remedial districting
plans on or before February 15, 2018.
Fourth, to comply with this Order, 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.
Fifth, the Executive Branch Respondents are advised to anticipate that a
congressional districting plan will be available by February 19, 2018, and are directed
to take all measures, including adjusting the election calendar if necessary, to ensure
that the May 15, 2018 primary election takes place as scheduled under that remedial
districting plan.
Sixth, as acknowledged by the parties, the March 13, 2018 special election for
Pennsylvania’s 18th Congressional District, which will fill a vacancy in an existing
congressional seat for which the term of office ends in 11 months, shall proceed under
the Congressional Redistricting Act of 2011 and is unaffected by this Order.
Opinion to follow.
Jurisdiction is retained.
Justice Baer files a Concurring and Dissenting Statement.
Chief Justice Saylor files a Dissenting Statement in which Justice Mundy joins.
Justice Mundy files a Dissenting Statement.

[J-1-2018] - 3

EXHIBIT C

[J-1-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

LEAGUE OF WOMEN VOTERS OF
PENNSYLVANIA, CARMEN FEBO SAN
MIGUEL, JAMES SOLOMON, JOHN
GREINER, JOHN CAPOWSKI,
GRETCHEN BRANDT, THOMAS
RENTSCHLER, MARY ELIZABETH
LAWN, LISA ISAACS, DON LANCASTER,
JORDI COMAS, ROBERT SMITH,
WILLIAM MARX, RICHARD MANTELL,
PRISCILLA MCNULTY, THOMAS
ULRICH, ROBERT MCKINSTRY, MARK
LICHTY, LORRAINE PETROSKY ,

: No. 159 MM 2017
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Petitioners
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v.
:
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THE COMMONWEALTH OF
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PENNSYLVANIA; THE PENNSYLVANIA
:
GENERAL ASSEMBLY; THOMAS W.
:
WOLF, IN HIS CAPACITY AS
:
GOVERNOR OF PENNSYLVANIA;
:
MICHAEL J. STACK III, IN HIS CAPACITY :
AS LIEUTENANT GOVERNOR OF
:
PENNSYLVANIA AND PRESIDENT OF
:
THE PENNSYLVANIA SENATE;
:
MICHAEL C. TURZAI, IN HIS CAPACITY
:
AS SPEAKER OF THE PENNSYLVANIA
:
HOUSE OF REPRESENTATIVES;
:
JOSEPH B. SCARNATI III, IN HIS
:
CAPACITY AS PENNSYLVANIA SENATE :
PRESIDENT PRO TEMPORE; ROBERT
:
TORRES, IN HIS CAPACITY AS ACTING :
SECRETARY OF THE
:
COMMONWEALTH OF PENNSYLVANIA; :
JONATHAN M. MARKS, IN HIS
:
CAPACITY AS COMMISSIONER OF THE :
BUREAU OF COMMISSIONS,
:
ELECTIONS, AND LEGISLATION OF
:

THE PENNSYLVANIA DEPARTMENT OF
STATE,
Respondents

:
:
:
:

DISSENTING STATEMENT
CHIEF JUSTICE SAYLOR

FILED: January 22, 2018

Consistent with my previous vote disfavoring the assumption of extraordinary
jurisdiction, I agree with the Commonwealth Court’s original position that it would have
been appropriate to stay this matter pending anticipated guidance from the Supreme
Court of the United States in Gill v. Whitford, No. 16-1161 (U.S.). See Order dated Oct.
16, 2017, in League of Women Voters of Pa. v. Commonwealth, No. 261 M.D. 2017
(Pa. Cmwlth.). Indeed, the Supreme Court has stayed a series of recent federal court
directives to state legislatures in cases lodging partisan gerrymandering challenges
pending its review, most recently, as of last week. See Order dated Jan. 18, 2018, in
Rucho v. Common Cause, No. 17A745 (U.S.).

I hold the view that restraint is

appropriate, particularly in light of the timing of the present challenge to a congressional
redistricting plan that was enacted in 2011 and the proximity of the impending 2018
election cycle. Cf. Concurring and Dissenting Statement, slip op. at 3-4 (Baer, J.).
The crafting of congressional district boundaries is quintessentially a political
endeavor assigned to state legislatures by the United States Constitution. See U.S.
CONST. art. I, §4. Notably, certain political objectives – such as the aim to avoid pitting
incumbents against each other or to maintain the cores of prior districts – have been
recognized as traditional redistricting criteria. See Karcher v. Daggett, 462 U.S. 725,
740, 103 S. Ct. 2653, 2663 (1983).

Federal and state courts also appreciate the

[J-1-2018] - 2

propriety of preserving communities of interest which may not overlap with political
subdivision lines. See, e.g., Evenwel v. Abbott, ___ U.S. ___, ___, 136 S. Ct. 1120,
1124 (2016); Holt v. 2011 Legislative Reapportionment Comm’n, 620 Pa. 373, 422-23,
67 A.3d 1211, 1241 (2013). Furthermore, in terms of such communities, it seems plain
that legislators are in a superior position to address their interests. Accord Vieth v.
Jubelirer, 541 U.S. 267, 358, 124 S. Ct. 1769, 1824 (2004) (Breyer, J., dissenting) (“It is
precisely because politicians are best able to predict the effects of boundary changes
that the districts they design usually make some political sense.” (emphasis in original)).
To the extent that a judicially manageable standard can be articulated in this
arena, I believe the proper litmus should abide such considerations. I also consider it
appropriate to take into account matters of degree relative to the inevitable political and
partisan dynamics associated with redistricting by a legislative body.
I realize that the recommended factual findings of Judge Brobson of the
Commonwealth Court raise substantial concerns as to the constitutional viability of
Pennsylvania's current congressional districts when considered under standards that
have recently been applied by some federal courts in decisions, which, again, are under
review by the United States Supreme Court. My position at this juncture is only that I
would not presently upset those districts, in such an extraordinarily compressed fashion,
and without clarifying – for the benefit of the General Assembly and the public – the
constitutional standards by which districting is now being adjudged in Pennsylvania.

Justice Mundy joins this dissenting statement.

[J-1-2018] - 3

EXHIBIT D

[J-1-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

LEAGUE OF WOMEN VOTERS OF
PENNSYLVANIA, CARMEN FEBO SAN
MIGUEL, JAMES SOLOMON, JOHN
GREINER, JOHN CAPOWSKI,
GRETCHEN BRANDT, THOMAS
RENTSCHLER, MARY ELIZABETH
LAWN, LISA ISAACS, DON LANCASTER,
JORDI COMAS, ROBERT SMITH,
WILLIAM MARX, RICHARD MANTELL,
PRISCILLA MCNULTY, THOMAS
ULRICH, ROBERT MCKINSTRY, MARK
LICHTY, LORRAINE PETROSKY,

: No. 159 MM 2017
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:
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:
:
:
:
:
Petitioners
:
:
:
v.
:
:
:
THE COMMONWEALTH OF
:
PENNSYLVANIA; THE PENNSYLVANIA
:
GENERAL ASSEMBLY; THOMAS W.
:
WOLF, IN HIS CAPACITY AS
:
GOVERNOR OF PENNSYLVANIA;
:
MICHAEL J. STACK III, IN HIS CAPACITY :
AS LIEUTENANT GOVERNOR OF
:
PENNSYLVANIA AND PRESIDENT OF
:
THE PENNSYLVANIA SENATE;
:
MICHAEL C. TURZAI, IN HIS CAPACITY
:
AS SPEAKER OF THE PENNSYLVANIA
:
HOUSE OF REPRESENTATIVES;
:
JOSEPH B. SCARNATI III, IN HIS
:
CAPACITY AS PENNSYLVANIA SENATE :
PRESIDENT PRO TEMPORE; ROBERT
:
TORRES, IN HIS CAPACITY AS ACTING :
SECRETARY OF THE
:
COMMONWEALTH OF PENNSYLVANIA; :
JONATHAN M. MARKS, IN HIS
:
CAPACITY AS COMMISSIONER OF THE :
BUREAU OF COMMISSIONS,
:
ELECTIONS, AND LEGISLATION OF
:

THE PENNSYLVANIA DEPARTMENT OF
STATE,
Respondents

:
:
:
:

DISSENTING STATEMENT
JUSTICE MUNDY

FILED: January 22, 2018

I join Chief Justice Saylor’s dissenting statement in full. I write separately to
express my concern with the vagueness of the Court’s order.

Despite its

pronouncement that the 2011 map clearly, plainly, and palpably violates the
Pennsylvania Constitution, the Court fails to identify the specific provision it so
violates. This vagueness by the Court is problematic because the parties raise several
state constitutional claims, including the Speech Clause, the Free Association Clause,
the Elections Clause, and the Equal Protection Clause, each of which has a different
mode of analysis. See generally PA. CONST. art. I, §§ 1, 5, 7, 20, 26; Pap’s AM v. City of
Erie, 812 A.2d 591, 612 (Pa. 2002) (Speech Clause); Love v. Borough of Stroudsburg,
597 A.2d 1137, 1139 (Pa. 1991) (Equal Protection Clause); Mixon v. Commonwealth,
759 A.2d 442, 449-50 (Pa. Cmwlth. 2000), aff’d, 783 A.2d 763 (Pa. 2002) (Elections
Clause). The Court’s order fails to give essential guidance to the General Assembly
and the Governor, or this Court on how to create a constitutional, non-gerrymandered
map.
I am also troubled by the order striking down the 2011 Congressional map on the
eve of our midterm elections, as well as the remedy proposed by the Court. In my view,
the implication that this Court may undertake the task of drawing a congressional map
on its own raises a serious federal constitutional concern. See U.S. CONST. art. I, § 4,
cl. 1 (stating, “[t]he Times, Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the Legislature thereof[]”)

[J-1-2018, 159 MM 2017] - 2

(emphasis added); Ariz. State Legislature v. Ariz. Indep. Redist. Comm’n, 135 S. Ct.
2652, 2667-68 (2015) (concluding the Federal Elections Clause permits redistricting by
the state legislature, Congress, or an independent redistricting commission). For these
reasons, I conclude the Court’s approach is imprudent and I cannot participate in it. I
respectfully dissent.

[J-1-2018, 159 MM 2017] - 3

EXHIBIT E

[J-1-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

LEAGUE OF WOMEN VOTERS OF
PENNSYLVANIA, CARMEN FEBO SAN
MIGUEL, JAMES SOLOMON, JOHN
GREINER, JOHN CAPOWSKI,
GRETCHEN BRANDT, THOMAS
RENTSCHLER, MARY ELIZABETH
LAWN, LISA ISAACS, DON LANCASTER,
JORDI COMAS, ROBERT SMITH,
WILLIAM MARX, RICHARD MANTELL,
PRISCILLA MCNULTY, THOMAS
ULRICH, ROBERT MCKINSTRY, MARK
LICHTY, LORRAINE PETROSKY,

: No. 159 MM 2017
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:
:
:
:
:
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

:
:
:
:

CONCURRING AND DISSENTING STATEMENT
JUSTICE BAER

FILED: January 22, 2018

I join the per curiam order (PCO) to the extent it concludes that the districts as
set forth by the Congressional Redistricting Act of 2011 are unconstitutional. I also
concur in the PCO’s invitation to the Legislature and Governor to craft constitutional
maps, recognizing that redistricting is a legislative function. Butcher v. Bloom, 203 A.2d
556, 569 (Pa. 1964) (“The task of reapportionment is not only the responsibility of the
Legislature, it is also a function which can be best accomplished by that elected branch
of government.”).
I find myself in an awkward position regarding the PCO’s directive that the
primary election shall proceed with new maps on May 15, 2018. I understand the
Court’s desire to follow this schedule as it is arguably counterintuitive to believe that the
current map is unconstitutional and, nevertheless, direct its usage in the May 2018
election. There are, however, other forces at play.
When faced with an unconstitutional map, courts should determine “whether the
imminence of [the primary and] general elections requires the utilization of [a prior plan]
notwithstanding [its] invalidity” or whether a constitutional map “can practicably be
effectuated” in time for the pending election. Id. at 568 (quoting Lucas v. Forty-Fourth
General Assembly of State of Colorado, 377 U.S. 713, 739 (1964)) (internal quotation
marks omitted). In Butcher, we allowed the election to proceed employing maps that we
had concluded were unconstitutional to avoid “[s]erious disruption of orderly state
election processes and basic governmental functions.” Id. at 568 - 69.

[J-1-2018] - 2

As in Butcher, I believe the dangers of implementing a new map for the May
2018 primary election risks “[s]erious disruption of orderly state election processes and
basic governmental functions.” Id. It is naïve to think that disruption will not occur.
Prospective candidates, incumbents and challengers alike, have been running for
months, organizing, fundraising, seeking their party’s endorsements, determining who
should be on canvassing and telephone lists, as well as undertaking the innumerable
other tasks implicit in any campaign - all with a precise understanding of the districts
within which they are to run, which have been in place since 2011. The change of the
districts’ boundary lines at this time could result in candidates, again incumbents and
challengers alike, no longer living in the districts where they have been carrying out
these activities for a year or more. This says nothing of the average voter, who thought
he knew his Congressperson and district, and now finds that all has changed within
days of the circulation of nomination petitions.
In this regard, the 18th Congressional District in southwestern Pennsylvania is
worthy of specific mention. A special election will be held there on March 13, 2018. If a
new map is indeed implemented for the 2018 election, voters in this district would be
electing a representative in March in one district while nomination petitions would be
circulating for a newly-drawn district, which may or may not include the current
candidates for the special election.

Again and respectfully, I find the likelihood for

confusion, if not chaos, militates strongly against my colleagues’ admittedly admirable
effort to correct the current map prior to the May 15, 2018 primary election.
Moreover, while the Court has set forth a timeline for resolution of this issue
which theoretically allows for implementation of a new, constitutional map for the May
primary election, this timeline will face immense and perhaps insurmountable pressure

[J-1-2018] - 3

through likely subsequent litigation. Regardless of the merit of any claims, litigation
takes time, and under the proposed schedule, there is no time.
Finally, I do not favor the alternative of moving this year’s primary election. It has
been the tradition in Pennsylvania to hold a spring primary and a fall general election.
This year, Pennsylvanians will elect a Governor, a Lieutenant Governor, a United States
Senator, all of Pennsylvania’s Congressional Representatives, one-half of the
Pennsylvania Senate, and all of the Pennsylvania House of Representatives.

We

cannot determine the impact of moving a primary election from the timeframe it has long
been held to a mid-summer substitute. I am uncomfortable risking aberrant results
through such a departure.
Accordingly, I believe it more prudent to apply our holding in this case to the
2020 election cycle, which would allow ample time for our sister branches of
government to comply with our holding with guidance from our forthcoming opinion, as
well as providing candidates and their supporters the opportunity to campaign in their
newly established districts, and, most importantly, to reduce the risk of voter confusion.
Having said all of this, I readily acknowledge the Court’s commendable attempt
to compress the process of correcting the map to conduct timely primary elections. I will
cooperate with the Court as it pursues its admirable goal, so long as all involved receive
due process. I cannot, however, join the PCO without this expression because of my
concern that a well-intentioned effort can still produce an unsatisfactory process and
conclusion.

[J-1-2018] - 4

EXHIBIT F

[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
PENNSYLVANIA, CARMEN FEBO SAN
MIGUEL, JAMES SOLOMON, JOHN
GREINER, JOHN CAPOWSKI,
GRETCHEN BRANDT, THOMAS
RENTSCHLER, MARY ELIZABETH
LAWN, LISA ISAACS, DON LANCASTER,
JORDI COMAS, ROBERT SMITH,
WILLIAM MARX, RICHARD MANTELL,
PRISCILLA MCNULTY, THOMAS
ULRICH, ROBERT MCKINSTRY, MARK
LICHTY, LORRAINE PETROSKY,

:
:
:
:
:
:
:
:
:
:
:
:
:
Petitioners
:
:
:
v.
:
:
:
THE COMMONWEALTH OF
:
PENNSYLVANIA; THE PENNSYLVANIA
:
GENERAL ASSEMBLY; THOMAS W.
:
WOLF, IN HIS CAPACITY AS
:
GOVERNOR OF PENNSYLVANIA;
:
MICHAEL J. STACK III, IN HIS CAPACITY :
AS LIEUTENANT GOVERNOR OF
:
PENNSYLVANIA AND PRESIDENT OF
:
THE PENNSYLVANIA SENATE;
:
MICHAEL C. TURZAI, IN HIS CAPACITY
:
AS SPEAKER OF THE PENNSYLVANIA
:
HOUSE OF REPRESENTATIVES;
:
JOSEPH B. SCARNATI III, IN HIS
:
CAPACITY AS PENNSYLVANIA SENATE :
PRESIDENT PRO TEMPORE; ROBERT
:
TORRES, IN HIS CAPACITY AS ACTING :
SECRETARY OF THE
:
COMMONWEALTH OF PENNSYLVANIA; :
JONATHAN M. MARKS, IN HIS
:
CAPACITY AS COMMISSIONER OF THE :

No. 159 MM 2017
On the Recommended Findings of Fact
and Conclusions of Law of the
Commonwealth Court of Pennsylvania
entered on 12/29/18 at No. 261 MD
2017
ARGUED: January 17, 2018

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.

[J-1-2018] - 2

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.

[J-1-2018] - 21

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
Seats

Republican
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
Seats

Republican
Seats

Democratic
Vote
Percentage

Republic
Vote
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-meehanunder-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-fromcongress-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:
Simulated

Plans

Following

Traditional

Districting

Criteria

Simulation Set 2: 500
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 votingage 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 RepublicanDemocrat 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 AfricanAmerican 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.

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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.

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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).

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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.

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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

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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.
56

See

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.

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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

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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

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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

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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.

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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.

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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

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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.

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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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