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)

maintains serves as a good guide, claiming that it meets or exceeds the 2011 Plan
based on traditional redistricting criteria, and provides sufficient data to judge its
compliance with traditional districting criteria, as well as federal Voting Rights Act
requirements. Stack Brief at 10-15, 39. Respondent Stack offers that this Court should
retain a special master, who could reference Dr. Chen’s map as a guide in drawing a
new map, should the legislature fail to produce a map in a timely fashion.
Amicus Common Cause, like Petitioners, contends that the 2011 Plan violates
the Free and Equal Elections Clause of the Pennsylvania Constitution, asserting that
this clause provides greater protections to the right to vote than the federal Equal
Protection Clause.
Relying upon our seminal decision in Edmunds, supra,57 which provides the
framework for analyzing whether a right under the Pennsylvania Constitution is more
expansive than its federal counterpart, Common Cause first argues that the text of the
Free and Equal Elections Clause demonstrates that it should be viewed as independent
from the Equal Protection Clause of the United States Constitution. Common Cause
notes that, in contrast to the more general provisions of the Pennsylvania Constitution
such as Article I, Sections I and 26, which implicate, but do not specifically address, the
57

Edmunds instructs that an analysis of whether a right under the Pennsylvania
Constitution affords greater protection than the United States Constitution encompasses
the following four factors:
1) text of the Pennsylvania constitutional provision;
2) history of the provision, including Pennsylvania case-law;
3) related case-law from other states;
4) policy considerations, including unique issues of state and local concern, and
applicability within modern Pennsylvania jurisprudence.
Edmunds, 586 A.2d at 895.

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right to vote, Article I, Section 5’s proclamation that “[e]lections shall be free and equal”
and that “no power . . . shall at any time interfere to prevent the free exercise of the right
of suffrage” is direct and specific, indicating that the clause should not be “subsumed
into Sections 1 and 26, let alone federal jurisprudence.” Common Cause Brief at 6-7.
Second, Common Cause argues that the history of the Free and Equal Elections
Clause supports giving it independent effect. Specifically, Common Cause highlights
that, since as early as 1776, Pennsylvania has recognized the importance of the right to
vote, providing in Chapter I, Section VII of the Declaration of Rights that “all elections
ought to be free; and that all free men having a sufficient evident common interest with,
and attachment to the community, have a right to elect officers, or to be elected into
office.” Id. (quoting Pa. Const. of 1776, ch. I, § VII). Common Cause continues that, in
1790, Pennsylvania adopted the Free and Equal Elections Clause into its Constitution,
but the federal Constitution was, and continued to be, largely silent regarding the right to
free and equal elections, containing no comparable provision and leaving “the selection
of representatives and senators largely to the states, subject to minimum age and
eligibility requirements.” Id. at 8-9. While the United States later adopted the Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution,
Common Cause stresses that it did not do so until 1868 — many decades after
Pennsylvania had declared free and equal elections a fundamental right. Thus, in light
of the temporal differences between the two provisions and the fact that the federal
Equal Protection Clause does not specifically address elections, Common Cause
maintains that the Free and Equal Elections Clause and the federal Equal Protection
Clause should not be viewed as coterminous.
Common Cause also suggests that Pennsylvania case law supports giving the
Free and Equal Elections Clause independent effect, noting that this Court has

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interpreted the clause since as early as the 1860s, when the Court explained that
elections are made equal by “laws which shall arrange all the qualified electors into
suitable districts, and make their votes equally potent in the election; so that some shall
not have more votes than others, and that all shall have an equal share in filling the
offices of the Commonwealth.” Id. at 11 (quoting Patterson v. Barlow, 60 Pa. 54, 75
(Pa. 1869)).

This Court further provided, with respect to the concept of legislative

deference under the Free and Equal Elections Clause, that, although the General
Assembly enjoys discretion in creating laws to ensure that elections are equal, the
legislature’s actions in this regard may be reviewed “in a case of plain, palpable, and
clear abuse of the power which actually infringes on the rights of the electors.” Id.
(quoting Patterson, 60 Pa. at 75). Common Cause additionally highlights that our case
law historically has recognized that the creation of “suitable districts” in accordance with
the Free and Equal Elections Clause relies heavily on “the guiding principles respecting
compactness, contiguity, and respect for the integrity of political subdivisions.” Id. at 13
(quoting Holt I, 38 A.3d at 745). Given the significant amount of time between the
passage of the Free and Equal Elections Clause and the Fourteenth Amendment to the
United States Constitution, as well as the separate attention that our Court has given to
the Free and Equal Elections Clause, Common Cause suggests that “[i]t is incoherent to
assume that Pennsylvania’s jurisprudence under the [Free and Equal Elections Clause]
disappeared into the Fourteenth Amendment.” Id. at 11.
Third, Common Cause argues that the relative dearth of case law from other
jurisdictions regarding free and equal elections illustrates that Pennsylvania was a
“trailblazer in guaranteeing the right to vote,” noting that, of the original 13 states, only
the Pennsylvania, Delaware, and Massachusetts Constitutions contained a clause
guaranteeing free and equal elections. Id. at 14. While Common Cause offers that at

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least one other state — Alaska — has found that its state constitution provides greater
protection against gerrymandering than the federal Constitution, see Kenai Peninsula
Borough v. State, 743 P.2d 1352, 1371 (Alaska 1987), Common Cause suggests that
the general lack of comparable provisions in other state constitutions indicates that,
“[a]s in 1776, Pennsylvania should lead the states in declaring the right to free and fair
elections, this time by stamping out gerrymandering.” Common Cause Brief at 14.
Lastly, Common Cause asserts that the Pennsylvania Constitution defeats
traditional policy arguments made in support of the practice of gerrymandering, such as
the purported difficulty in identifying a workable standard to assess constitutional
violations and the notion of legislative deference in drawing congressional districts.
More specifically, with respect to the difficulty of identifying a standard, Common Cause
submits that the three criteria long used for drawing voting districts in Pennsylvania —
compactness, contiguity, and integrity of political subdivisions — provide a sufficient
standard by which to assess whether an electoral map violates the Free and Equal
Elections Clause. Common Cause stresses that, because these criteria are specifically
written into the Pennsylvania Constitution, see Pa Const. art. II, § 16 (“representative
districts . . . shall be composed of compact and continuous territory as nearly equal in
population as practicable . . . . Unless absolutely necessary no county, city,
incorporated town, borough, township or ward shall be divided in forming either a
senatorial or representative district”), and have provided the basis for invalidating state
legislative district maps in the past, see Holt I, supra, they are sufficiently precise as to
present a feasible standard for evaluating the constitutionality of a congressional district
map under the Free and Equal Elections Clause. Additionally, regarding the principle of
legislative deference, Common Cause argues that legislative deference does not give
the General Assembly unfettered discretion to engage in partisan gerrymandering

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without judicial interference, noting that, unlike the federal Constitution, Pennsylvania’s
Constitution specifically requires the Court to review challenges to state legislative
district maps. See Pa. Const. art. II, § 17(d). While Common Cause concedes that the
legislature typically enjoys substantial deference in redistricting matters, it maintains that
such deference is not warranted in circumstances, such as in the instant case, where
the “faction in control of the legislature” used its authority to create political advantage,
rather than to create a map which reflects the “true will of the people.” Common Cause
Brief at 17.
Asserting that the four Edmunds factors support giving the Free and Equal
Elections Clause independent effect, Common Cause concludes that the 2011 Plan
violates that provision because, as exhibited by Petitioners’ evidence, it is not compact
or contiguous, nor does it respect political subdivision boundaries. Moreover, Common
Cause asserts that the secretive manner in which the Plan was created strongly
suggests that the legislature drew the congressional districts with the improper, highly
partisan motive of benefitting the Republican Party, rather than doing so with the will of
the people in mind. Under these circumstances, Common Cause argues that this Court
should uphold the democratic principles of the Pennsylvania Constitution and strike
down the gerrymandered Plan pursuant to the Free and Equal Elections Clause.
Amicus Brennan Center for Justice (“Brennan Center”) likewise argues on behalf
of Petitioners that this Court can, and indeed should, strike down the 2011 Plan as
unconstitutional.

In so asserting, Brennan Center emphasizes that, although some

degree of good faith political “give-and-take” is bound to occur with the redistricting
process, this case presents a particularly extreme, unconstitutional form of partisan
gerrymander which must be remedied by this Court. While the Commonwealth Court
below highlighted the difficulty with identifying a workable standard to assess when,

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precisely,

partisan

gerrymandering

becomes

unconstitutional,

Brennan

Center

maintains that “judicial action to stamp out extreme gerrymanders can be focused and
limited,” Brennan Center Brief at 6, explaining that cases of extreme, unconstitutional
gerrymandering are relatively rare and are easily detectable based upon two, objective
indicia: single-party control of the redistricting process and a recent history of
competitive statewide elections. Id. at 7. Brennan Center observes that these factors
have been present in every state in the past decade which had a congressional
districting map showing extreme partisan bias, including Pennsylvania during the
creation of the 2011 Plan.

Brennan Center further offers that other accepted

quantitative metrics, such as the efficiency gap, the seats-to-votes curve, and the meanmedian vote share, can measure the level of partisan bias in a state and assist in
identifying extreme gerrymandering, noting that the 2011 Plan performed poorly under
each of these metrics.
While Brennan Center acknowledges that federal courts have been hesitant to
exercise jurisdiction over partisan gerrymandering claims because of concerns over
federalism and excessive burdens on the federal docket, Brennan Center suggests that
this Court is not subject to the same constraints. Moreover, Brennan Center highlights
that the political question doctrine, which has also hamstrung federal courts in partisan
gerrymandering cases, does not restrict this Court from acting in such cases, as this
Court held that the political question doctrine renders a case non-justiciable only when
the Pennsylvania Constitution “explicitly or implicitly” demonstrates “the clear intent to
entrust the legislature with the sole prerogative to assess the adequacy of its own
effort[s],” id. at 19 (quoting William Penn Sch. Dist. v. Pa. Dep’t of Educ., 170 A.3d 414,
439 (Pa. 2017)), and the Pennsylvania Constitution contains no such limitation with
regard to interpreting the constitutionality of partisan congressional redistricting.

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Finally, Brennan Center contends that extreme partisan gerrymandering, such as
in the instant case, is “contrary to fundamental constitutional and democratic values,”
undermining

both

representativeness.

legislative
Id. at 15.

accountability

to

the

people

and

legislative

Brennan Center asserts that finding the Plan

unconstitutional in this case will “enhance the legitimacy of Pennsylvania’s democracy”
and restore confidence among Pennsylvanians in the political process. Id. at 23.
Similar to the points raised by Petitioners, as amicus, the AFL-CIO argues that
the 2011 Plan is unconstitutional under Article I, Sections 7 and 20 and Article I, Section
5 of the Pennsylvania Constitution, which it asserts provides an independent basis for
relief.

The AFL-CIO further suggests that Article I, Section 1 of the Pennsylvania

Constitution, which ensures equality under the law, and Article I, Section 26 of the
Pennsylvania Constitution, which protects Pennsylvanians against the denial or
discrimination of their civil rights, provide additional bases for relief under state law and
support reviewing the Plan under strict scrutiny.
Analyzing each of these provisions pursuant to the Edmunds factors, the AFLCIO highlights the rich history of the Pennsylvania Constitution, including, most notably,
that the Pennsylvania Constitution was at the forefront of ensuring robust rights
associated with representational democracy, such as the right to freedom of speech and
association, the right to equality under the law, and the right to vote in free and equal
elections, which the AFL-CIO notes Pennsylvania extended, quite remarkably, to those
individuals who did not own property. Moreover, with respect to the Free and Equal
Elections Clause, the AFL-CIO emphasizes that this Court has specifically stated that
elections are free and equal:
when they are public and open to all qualified electors alike:
when every voter has the same right as any other voter;
when each voter under the law has the right to cast his ballot
and have it honestly counted; when the regulation of the
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right to exercise the franchise does not deny the franchise
itself, or make it so difficult as to amount to a denial; and
when no constitutional right of the qualified elector is
subverted or denied him.
AFL-CIO Brief at 20-21 (quoting Winston v. Moore, 91 A. 520 at 523 (Pa. 1914)). The
AFL-CIO maintains that the unique history of these provisions demonstrates that they
“provide heightened protections beyond any analogous provisions in the federal
constitution,” and, thus, provide a separate legal basis for finding the 2011 Plan
unconstitutional. Id. at 4.
Amici Bernard Grofman, professor of political science at the University of
California, and Keith Gaddie, professor of political science at the University of
Oklahoma, echo the call of Petitioners, Executive Respondents, and other amici for this
Court to act and provide a check on extreme partisan gerrymandering, highlighting its
pernicious nature.

Grofman and Gaddie also provide a suggested standard for

assessing partisan gerrymandering cases, proposing that a partisan gerrymander is
unconstitutional if each of the following three elements is shown: (1) partisan
asymmetry, meaning the districting map had a “disparate impact on voters based on
political affiliation,” as measured by degree of partisan bias and mean-median gap,
Grofman Gaddie Brief at 14; (2) lack of responsiveness of electoral outcomes to voters’
decisions, meaning representation does not change despite a change in voter
preference from one political party to another; and (3) causation, meaning intentional
discrimination, rather than other, neutral causes, led to the asymmetry and lack of
responsiveness.

Grofman and Gaddie maintain that their standard is judicially

manageable, as it can be applied by courts “coherently and consistently” across cases,
and they urge this Court to adopt it. Id. at 36.
Also, as amicus, the American Civil Liberties Union (“ACLU”) argues in support of
Petitioners that the 2011 Plan violates the free expression and association clauses of

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the Pennsylvania Constitution, asserting, consistent with Petitioners’ position, that the
Pennsylvania Constitution provides greater protections for these rights than does the
First Amendment to the United States Constitution. The ACLU also notes the unique
nature of the Pennsylvania Constitution’s Free and Equal Elections Clause, which, it
suggests, grants more robust protections for the right to vote than the federal
Constitution. Further, as a matter of policy, the ACLU suggests that greater protections
for speech, associational, and voting rights are consistent with the “marketplace of
ideas” concept developed by Justice Oliver Wendell Holmes, which, the ACLU notes,
highlights the importance of government viewpoint neutrality in maintaining the free
exchange of ideas critical to our democracy, particularly where the electoral process is
at stake. ACLU Brief at 6-9.
Similar to Petitioners, the ACLU maintains that extreme partisan gerrymandering
is unconstitutional, explaining that unconstitutional partisan gerrymandering is “distinct
from the inevitable incidental political considerations and partisan effects that may
occur,” id. at 22, and, instead, occurs when a state acts with an intent to “entrench” by
drawing district “lines for the purpose of locking in partisan advantage regardless of the
voters’ likely choices.” Id. at 22-23 (citing Arizona State Legislature, 135 S. Ct. at 2658).
The ACLU suggests that such political entrenchment was present in the instant case,
and it maintains that the General Assembly’s deliberate effort to discriminate against
minority-party voters triggers strict scrutiny, which the ACLU notes the Legislative
Respondents have made no effort to satisfy. Thus, the ACLU argues that this Court
should find the Plan violates the Pennsylvania Constitution.

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Additionally, Political Science Professors,58 the Pittsburgh Foundation,59 and
Campaign Legal Center have each filed amicus curiae briefs in support of Petitioners.
These amici focus largely on the increasing prevalence of partisan gerrymandering
occurring across the United States, which they attribute to sophisticated, ever-evolving
technology which makes it more feasible than ever to gather specific data about voters
and to utilize that data to “tailor durably biased maps.” Political Science Professors’
Brief at 12. These amici warn that instances of extreme partisan gerrymandering will
only worsen as this technology continues to develop.
Turning to the 2011 Plan, these amici all agree that it represents a particularly
egregious form of partisan gerrymandering. They suggest that the challenge to the Plan
is justiciable under the Pennsylvania Constitution, and they assert that judicially
manageable standards exist by which to assess the constitutionality of the Plan. More
specifically, the Pittsburgh Foundation offers that a congressional redistricting plan is
unconstitutional if it: “(1) was intentionally designed predominantly to attain a partisan
result; (2) largely disregards traditional and accepted districting criteria; and (3) has
been demonstrated (or is reliably predicted) to have an actual disparate and unfair
impact on a substantial number of Pennsylvania voters.” Pittsburgh Foundation Brief at

58

Political Science Professors identify themselves as “nationally recognized university
research scholars and political scientists from some of the foremost academic
institutions in Pennsylvania and from across the country whose collective studies on
electoral behavior, voter identity, and redistricting in the United States have been
published in leading scholarly journals and books.” Political Science Professors’ Brief at
1.
59

The Pittsburgh Foundation is a non-profit organization which “works to improve the
quality of life in the Pittsburgh region by evaluating and addressing community issues,
promoting responsible philanthropy, and connecting donors to the critical needs of the
community.” The Pittsburgh Foundation, http://pittsburghfoundation.org (last visited
Jan. 29, 2018).

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13. Political Science Professors submit that courts should use computer simulations, as
well as objective, social science measures, to assess a districting map’s partisan bias,
such as the efficiency gap and the mean-median difference. Lastly, Campaign Legal
Center argues that this Court should adopt Petitioners’ proposed standard.60
B. Legislative Respondents
We now turn to the arguments of the Legislative Respondents. They contend
that districting legislation, such as the 2011 Plan at issue, does not implicate, let alone
violate, free speech or associational rights because it “is not directed to voter speech or
conduct.”

Legislative Respondents’ Brief at 23.

Rather, according to Legislative

Respondents, the Plan creates “18 equipopulous districts,” giving Petitioners’ votes the
same weight as other Pennsylvania voters and fully allowing Petitioners to participate in
the political process by voting for the candidate of their choice and associating with any
political party or candidate they so choose. Id.
Regarding Petitioners’ reliance on cases involving laws which made speech less
effective, Legislative Respondents suggest those decisions are inapplicable to the case
at bar because they concern laws which actually restricted speech, whereas the Plan in
the instant case allows Democrats to communicate as desired through such means as
voting for their preferred candidates, joining the Democratic Party, contacting their
representatives, and financially supporting causes they care about.

Although

Legislative Respondents concede that the Plan might make it more difficult for
Petitioners to “persuade a majority of the other 705,000+ voters in their districts to agree
with them on the candidate they prefer,” id. at 25, they emphasize that Petitioners have
no free speech or associational right to “an agreeable or more persuadable audience,”
60

The application to file an amicus brief nunc pro tunc, filed by Concerned Citizens for
Democracy, is granted.

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id. at 26, citing a variety of federal cases holding that the redistricting plans challenged
therein did not violate voters’ First Amendment rights.

Id. (citing, e.g., League of

Women Voters v. Quinn, No. 1:11-CV-5569, 2011 WL 5143044, *12-13 (N.D. Ill. Oct.
28, 2011); Comm. for a Fair and Balanced Map v. Ill. State Bd. of Elections, 835 F.
Supp.2d 563, 575 (N.D. Ill. 2011)).
Moreover, relying on this Court’s decision in Holt v. 2011 Reapportionment
Commission, 67 A.3d 1211 (Pa. 2013) (“Holt II”), Legislative Respondents highlight the
“inherently political” nature of redistricting, which, they note, this Court found
constitutionally permissible. Legislative Respondents’ Brief at 27 (quoting Holt II, 67
A.3d at 1234).

Further, to the extent that Petitioners distinguish in their argument

between permissible “political considerations” and what they deem impermissible
“partisan intent,” Respondents maintain that “the two concepts are inextricably
intertwined,” as “political parties are comprised of constituencies, which in part includes
‘communities of interest’ — what Petitioners argue is the ‘good’ side of ‘political.’” Id. at
28.

As such, Legislative Respondents contend that Petitioners’ argument that no

partisan considerations should be permitted during the redistricting process runs afoul
of Holt II and necessarily must fail.

They suggest that, to find otherwise, would allow

any Pennsylvania voter to challenge, and potentially invalidate, a plan designed to
protect an incumbent or to protect “communities of interest” — a “sweeping rule” that
Respondents contend is not justified by the law, the facts, or public policy. Id. at 29-30.
Next, Respondents assert that Petitioners cannot satisfy the requirements of a
retaliation claim.

Relying upon the Uniontown Newspapers test, Legislative

Respondents first argue that Petitioners fail to provide record evidence establishing that
the 2011 Plan was enacted with a retaliatory motive to coerce Democratic voters into
voting differently than they would otherwise vote.

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To the contrary, Respondents

maintain that no legislature would reasonably believe that gerrymandering would coerce
voters to vote differently, and they further submit that the record demonstrates that the
Plan was passed with bipartisan support, indicating the Plan was not drawn with a
“dastardly motive.” Id. at 31. Respondents also contend that Petitioners failed to prove
that the Plan “chilled” a person from continuing to participate in the political process, as
the evidence of record did not show a decrease in voter turnout or civil participation
following the Plan’s enactment. Lastly, Legislative Respondents highlight the fact that
political gerrymandering is not typically the type of government conduct associated with
a case of retaliation; rather, Respondents note that retaliation claims typically involve
overt actions intended to invoke fear in the target, such as police intimidation tactics or
organized harassment campaigns.
Next, Legislative Respondents assert that Petitioners failed to prove that the
2011 Plan violated the equal protection and Free and Equal Elections clauses of the
Pennsylvania Constitution. Relying upon Erfer, Respondents contend that Petitioners
produced no evidence that the Plan was designed to intentionally discriminate against
Democratic voters, emphasizing the bipartisan manner in which the Plan was adopted,
and claiming that Petitioners’ statistical data does not account for the various nonpartisan factors considered in drawing the Plan, such as preserving the core of existing
districts, preserving communities of interest, and protecting incumbents. Respondents
also suggest that Democratic voters do not constitute an “identifiable political group”
because they encompass a wide range of people beyond those who belong to the
Democratic Party, and because Pennsylvania voters frequently split their tickets
between Democratic and Republican candidates, making it difficult to clearly identify a
voter as solely “Democratic.”

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With respect to the second Erfer prong, Respondents maintain that Petitioners
failed to establish that the Plan had a discriminatory effect on Democratic voters and,
more specifically, failed to prove that the Plan resulted in a lack of political power which
effectively shut out Democrats from the political process.

Respondents argue that,

contrary to Petitioners’ assertions, this Court specifically found that merely voting for a
political candidate who loses an election does not shut out a voter from the political
process, see Erfer, 794 A.2d at 333, and they submit that, in any event, the five “safe”
Democratic seats in the congressional delegation demonstrate that Democrats are not
shut out.

Respondents further observe that, although Petitioners suggest, due to

congressional polarization, that Democrats’ interests are not adequately represented by
their congressmen, they fail to provide evidence substantiating this claim and fail to
identify the interests of Democratic voters which allegedly are not represented in
congress, particularly those Democrats who are “split ticket” voters.
Moreover, to the extent that Petitioners suggest that the second element of the
Erfer test should be eliminated as unworkable, Respondents maintain that we should
deny their request, claiming that Petitioners seek to eliminate that element because they
are simply unable to meet it. Respondents further argue that, in advocating for the
removal of the second element, Petitioners essentially are seeking a state constitutional
right to proportional representation, which the United States Supreme Court expressly
rejected in Bandemer. See Bandemer, 478 U.S. at 139. In any event, Respondents
emphasize that Petitioners have not met their burden of establishing that this Court
should depart from Erfer and the federal precedent upon which it relies, as the equal
protection guarantees under the United States and Pennsylvania Constitutions are
coterminous, and Petitioners do not suggest otherwise.

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Respondents further assert that, even if this Court were to abandon the standard
articulated in Erfer, Petitioners’ claim would nevertheless fail because, pursuant to
recent United States Supreme Court precedent, there is no judicially manageable
standard by which to evaluate claims involving equal protection violations due to
partisan gerrymandering.

See Vieth, 541 U.S. at 292.

Respondents observe that

Petitioners do not attempt to offer a judicially manageable standard to apply in place of
the Erfer standard, and they note that the standards proposed by amici are similarly
unavailing, as they each are incompatible with each other.
Additionally, Legislative Respondents contend that policy considerations weigh
heavily against this Court creating a new standard for evaluating partisan
gerrymandering claims under Pennsylvania’s equal protection clause, as they claim the
legislature is uniquely competent to engage in redistricting, and judicial oversight in this
area implicates separation-of-powers concerns. Respondents further suggest that there
are a variety of positive elements to using political considerations in redistricting,
including preserving “core constituencies” and incumbency, as well as the states’ right
to establish their districts in the manner they so choose.

Moreover, Legislative

Respondents highlight various checks on the state redistricting process, such as the
“Make or Alter” provision of the federal Elections Clause of the United States
Constitution,61 the threat of political retaliation when the political tides turn, and, as in
Pennsylvania, legislation which establishes a bi-partisan commission to draw district
lines. Nevertheless, should this Court decide to select a new standard, Legislative
Respondents submit that they should receive a new trial.

61

See supra p. 5.

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Legislative Respondents conclude by cautioning that this Court should not adopt
legal criteria for redistricting beyond those in Pennsylvania’s Constitution, claiming that
doing so would infringe on the legislative function and run afoul of the federal Elections
Clause. Accordingly, Respondents ask our Court to affirm the Commonwealth Court’s
decision and find that Petitioners did not demonstrate that the 2011 Plan clearly, plainly,
and palpably violates the Constitution.
C. Intervenors
Intervenors — Republican voters, candidates for office, committee chairpersons,
and other active members of the Republican Party — stress that they have invested
substantial time, money, and effort in preparing for the upcoming election deadlines
based upon the 2011 Plan, and they suggest that this Court should not require a new
congressional map before the 2018 primaries, as it would be a “monumental task” to
educate voters about changes in the congressional districts in time for the election.
Intervenors’ Brief at 17. Intervenors also highlight potential problems with overall voter
confusion, as well as various challenges congressional candidates would face as a
result of changes to the 2011 Plan during this election cycle, including potentially having
to circulate new nomination petitions and having to direct their campaign activities to
potentially new voters and demographics. While Executive Respondents maintain that
the date of the primary could be extended, Intervenors contend that an extension
imposed this late in the election cycle would “result in significant logistical challenges for
county election administrators,” as well as substantially increase the costs borne by
state and county governments.

Id. at 29.

According to Intervenors, the above-

described challenges would be particularly pronounced with respect to the special
election for the 18th Congressional District, scheduled for March 13 of this year.

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While Intervenors would find, based upon Vieth, that Petitioners have not shown
that their partisan gerrymandering claims are justiciable, should this Court nevertheless
find the claims justiciable and the 2011 Plan unconstitutional, they argue that we must
give the legislature the first opportunity to correct the Plan, as ordering new districts
without giving the legislature the chance to rectify any constitutional violations would
raise separation-of-powers concerns. In doing so, Intervenors assert that our Court
should follow the standard for relief that this Court endorsed in Butcher v. Bloom, 203
A.2d 556 (Pa. 1964), wherein, after finding that the state redistricting plan violated
Reynolds, supra, our Court declined to order immediate redistricting in light of the
“[s]erious disruption of orderly state election processes and basic governmental
functions” that would result from the Court’s immediate action. Intervenors’ Brief at 17
(quoting Butcher, 203 A.2d at 568). Instead, Intervenors note this Court opted to leave
the plan in place until after the upcoming election so as to allow the legislature to have a
“reasonable opportunity to enact new reapportionment legislation,” giving the legislature
almost a full year to do so. Id. at 23 (quoting Butcher, 203 A.2d at 569).
Claiming that the same concerns in Butcher are present in the instant case,
Intervenors submit that we should likewise give the legislature a reasonable and
adequate time in which to correct the Plan, which they suggest could be in place for the
2020 elections. Further counseling against the immediate remedying of the 2011 Plan’s
constitutional deficiencies, Intervenors highlight the fact that Petitioners, without
explanation, waited three election cycles (almost seven years) to bring their claims,
indicating that any constitutional issues are not pressing.

Intervenors also cite the

United States Supreme Court’s pending decision in Gill, which they note may impact the
resolution of this case.

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V. Analysis
We begin our analysis of the challenge to the 2011 Plan with the presumption
that the General Assembly did not intend to violate the Pennsylvania Constitution, “in
part because there exists a judicial presumption that our sister branches take seriously
their constitutional oaths.” Stilp v. Commonwealth, 905 A.2d 918, 938-39 (Pa. 2006);
see also 1 Pa.C.S. § 1922(3). Accordingly, a statute is presumed to be valid, and will
be declared unconstitutional only if the challenging parties carry the heavy burden of
proof that the enactment “clearly, palpably, and plainly violates the Constitution.” See
West Mifflin Area School District v. Zahorchak, 4 A.3d 1042, 1048 (Pa. 2010).
Upon review,62 and for the following reasons, we are persuaded by Petitioners
and the other presentations before us that the 2011 Plan clearly, plainly, and palpably
violates the Free and Equal Elections Clause of our Constitution.63
A. Free and Equal Elections Clause
Pennsylvania’s Constitution, when adopted in 1776, was widely viewed as “the
most radically democratic of all the early state constitutions.” Ken Gormley, “Overview
of Pennsylvania Constitutional Law,” as appearing in Ken Gormley, ed., The
Pennsylvania Constitution A Treatise on Rights and Liberties, 3 (2004). Indeed, our
Constitution, which was adopted over a full decade before the United States
Constitution, served as the foundation ― the template ― for the federal charter. Id.
Our autonomous state Constitution, rather than a “reaction” to federal constitutional
62

Given that this case is before us following our grant of extraordinary jurisdiction, our
standard of review is de novo. Further, although the findings of fact made by Judge
Brobson are not binding on this Court, “we will afford them due consideration, as the
jurist who presided over the hearings was in the best position to determine the facts.”
Annenberg v. Commonwealth, 757 A.2d 338, 343 (Pa. 2000) (citations omitted).
63

Given that we base our decision on the Free and Equal Elections Clause, we need
not address the free expression or equal protection arguments advanced by Petitioners.

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jurisprudence, stands as a self-contained and self-governing body of constitutional law,
and acts as a wholly independent protector of the rights of the citizens of our
Commonwealth.
The touchstone of interpretation of a constitutional provision is the actual
language of the Constitution itself. Ieropoli v. AC & S Corp., 842 A.2d 919, 925 (Pa.
2004). “[T]he Constitution's language controls and must be interpreted in its popular
sense, as understood by the people when they voted on its adoption.” Id. In doing so,
reading the provisions of the Constitution in any “strained or technical manner” is to be
avoided. Jubelirer v. Rendell, 953 A.2d 514, 528 (Pa. 2008). Consistent therewith, “we
must favor a natural reading which avoids contradictions and difficulties in
implementation, which completely conforms to the intent of the framers and which
reflects the views of the ratifying voter.” Commonwealth ex rel. Paulinski v. Isaac, 397
A.2d 760, 766 (Pa. 1979).
Further, if, in the process of undertaking explication of a provision of the
Pennsylvania Constitution, any ambiguity becomes apparent in the plain language of
the provision, we follow the rules of interpretation similar to those generally applicable
when construing statutes. See, e.g., Robinson Township v. Commonwealth, 83 A.3d
901, 945 (Pa. 2013); Commonwealth v. Omar, 981 A.2d 179, 185 (Pa. 2009). If the
constitutional language is clear and explicit, we will not “delimit the meaning of the
words used by reference to a supposed intent.” Robinson Township, 83 A.3d at 945
(quoting Commonwealth ex rel. MacCallum v. Acker, 162 A. 159, 160 (Pa. 1932)). If the
words of a constitutional provision are not explicit, we may resort to considerations other
than the plain language to discern intent, including, in this context, the occasion and
necessity for the provision; the circumstances under which the amendment was ratified;
the mischief to be remedied; the object to be attained; and the contemporaneous

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legislative history. 1 Pa.C.S. §§ 1921, 1922; accord Robert F. Williams, The Brennan
Lecture: Interpreting State Constitutions as Unique Legal Documents, 27 Okla. City U.
L. Rev. 189, 195 & 200 (2002) (state constitutions, ratified by electorate, are
characterized as “voice of the people,” which invites inquiry into “common
understanding” of provision; relevant considerations include constitutional convention
debates that reflect collective intent of body, circumstances leading to adoption of
provision, and purpose sought to be accomplished).
Moreover, the Free and Equal Elections Clause has no federal counterpart, and,
thus, our seminal comparative review standard described in Commonwealth v.
Edmunds, supra, is not directly applicable.64

Nonetheless, certain of the Edmunds

factors obviously may assist us in our analysis.

Jubelirer, 953 A.2d at 524-25;

Edmunds, 586 A.2d at 895. Indeed, we have recently employed certain of these factors
when analyzing the Environmental Rights Amendment. See Robinson Township 83
A.3d at 944 (“The Environmental Rights Amendment has no counterpart in the federal
charter and, as a result, the seminal, comparative review standard described in
[Edmunds] is not strictly applicable here. Nonetheless, some of the Edmunds factors
obviously are helpful in our analysis.”). Thus, in addition to our analysis of the plain
language, we may consider, as necessary, any relevant decisional law and policy
considerations argued by the parties, and any extra-jurisdictional case law from states
that have identical or similar provisions, which may be helpful and persuasive. See
Jubelirer, 953 A.2d at 525 n.12.
64

As noted above, our landmark decision in Edmunds, our Court set forth a four-part
test which we routinely follow in examining and interpreting a provision of our
Commonwealth’s organic charter. This test examines (1) the relevant text of the
provision of Pennsylvania Constitution; (2) the history of the provision, including
Pennsylvania case law; (3) relevant case law from other jurisdictions interpreting similar
provisions of that jurisdiction’s constitution; and (4) policy considerations.

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Finally, we emphasize that Article I is the Commonwealth's Declaration of Rights,
which spells out the social contract between government and the people which is of
such “general, great and essential” quality as to be ensconced as “inviolate.” Pa. Const.
art. I, Preamble & § 25; see also Pa. Const. art. I, § 2 (“All power is inherent in the
people, and all free governments are founded on their authority and instituted for their
peace, safety and happiness.”). Although plenary, the General Assembly's police power
is not absolute, as legislative power is subject to restrictions enumerated in the
Constitution and to limitations inherent in the form of government chosen by the people
of this Commonwealth. See Pa. Const. art. III, §§ 28-32 (enumerating restrictions).
Specifically, under our Constitution, the people have delegated general power to the
General Assembly, with the express exception of certain fundamental rights reserved to
the people in Article I of our Constitution. See Pa. Const. art. I, § 25 (“[t]o guard against
transgressions of the high powers which we have delegated, we declare that everything
in this article is excepted out of the general powers of government and shall forever
remain inviolate.”); see generally Robinson Township, 83 A.3d at 946-48.
Thus, with this context in hand, we begin with the actual language of Article I,
Section 5.
1. Language
Article I, Section 5 of the Pennsylvania Constitution, entitled “Elections,” is
contained within the Pennsylvania Constitution’s “Declaration of Rights,” which, as
noted above, is an enumeration of the fundamental individual human rights possessed
by the people of this Commonwealth that are specifically exempted from the powers of
Commonwealth government to diminish.65 As noted above, this section provides:
65

See Pa. Const. art. I, § 25 (“To guard against transgressions of the high powers
which we have delegated, we declare that everything in this article is excepted out of
the general powers of government and shall forever remain inviolate.”).

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Elections shall be free and equal; and no power, civil or
military, shall at any time interfere to prevent the free
exercise of the right of suffrage.
Pa. Const. art. I, § 5.

This clause first appeared, albeit in different form, in our

Commonwealth’s first organic charter of governance adopted in 1776, 11 years before
the United States Constitution was adopted. By contrast, the United States Constitution
– which furnishes no explicit protections for an individual’s electoral rights, nor sets any
minimum standards for a state’s conduct of the electoral process – does not contain,
nor has it ever contained, an analogous provision. See Joshua A. Douglas, The Right
to Vote Under State Constitutions, 67 Vand. L. Rev. 89, 100 (2014) (observing that “the
U.S. Constitution does not grant the right to vote. It instead defines the right through a
negative gloss, detailing the various reasons states cannot limit the franchise.”).
The broad text of the first clause of this provision mandates clearly and
unambiguously, and in the broadest possible terms, that all elections conducted in this
Commonwealth must be “free and equal.” In accordance with the plain and expansive
sweep of the words “free and equal,” we view them as indicative of the framers’ intent
that all aspects of the electoral process, to the greatest degree possible, be kept open
and unrestricted to the voters of our Commonwealth, and, also, conducted in a manner
which guarantees, to the greatest degree possible, a voter’s right to equal participation
in the electoral process for the selection of his or her representatives in government.
Thus, Article I, Section 5 guarantees our citizens an equal right, on par with every other
citizen, to elect their representatives.

Stated another way, the actual and plain

language of Section 5 mandates that all voters have an equal opportunity to translate
their votes into representation. This interpretation is consistent with both the historical
reasons for the inclusion of this provision in our Commonwealth’s Constitution and the
meaning we have ascribed to it through our case law.

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2. History
Our Commonwealth’s centuries-old and unique history has influenced the
evolution of the text of the Free and Equal Elections Clause, as well as our Court’s
interpretation of that provision. Although the general character of our Commonwealth
during the colonial era was reflective of the fundamental desire of Pennsylvania’s
founder, William Penn, that it be a haven of tolerance and non-discrimination for
adherents of various religious beliefs, the manner in which the colony was governed
from its inception nevertheless excluded certain groups from participation in its official
government. Roman Catholics, for example, could not hold office in the colony from
1693 to 1776, due to the requirement in the Charter of Privileges, a precursor to our
Constitution in which Penn set forth the manner of governance for the colony,66 that
every candidate for office was required to swear “that he did not believe in the doctrine
of transubstantiation, that he regarded the invocation of the Virgin Mary and the saints
as superstitious and the Popish Mass as idolatrous.” J. Paul Selsam, The Pennsylvania
Constitution of 1776, 179 (1971). Thus, although successive waves of European
immigrants were attracted to the Pennsylvania colony after its founding by the promise
of religious tolerance, not every group which settled in Pennsylvania was afforded the
equal legal right to participate in its governance. Related thereto, the colony became
divided over time by the geographical areas in which these immigrants settled, as well
as their religious beliefs.
English and Quaker immigrants fleeing persecution in England were the first to
arrive and settled in the eastern part of the colony in and around the City of Philadelphia
and in Chester and Bucks Counties. German immigrants arrived thereafter in sizable

66

William Penn Sch. Dist., 170 A.3d at 418–19.

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numbers and settled primarily in the central and northeastern part of the colony, and
finally came a large influx of Scots-Irish Presbyterians who lived primarily in the interior
and frontier regions of the colony: first in Lancaster, York and Cumberland Counties,
and then expanding westward to the areas beyond the Allegheny mountains,
congregating in and near the settlement which became modern day Pittsburgh. Id. at 45.
These groups were divided along economic and religious lines. The English and
Quakers who engaged in extensive commerce and banking became the most wealthy
and aristocratic elements in the colony. Id. at 6.

German immigrants reaped a

comfortable living from farming the fertile lands of their settlement. Rosalind Branning,
Pennsylvania Constitutional Development, 10 (1960). The Scots-Irish, who occupied the
frontier regions, eked out an existence through hunting, trapping, and subsistence
farming; however, they also became skilled tradesmen, highly proficient in construction,
masonry, and ironworking, and began to be described as “the leather aprons,” which,
although intended as a pejorative by members of the colony’s aristocracy, they proudly
adopted as a badge of honor reflective of their considerable skills and abilities in their
chosen professions. Robert Brunhouse, The Counter-Revolution in Pennsylvania 17761790, 16 (1942).
These various groups began to align themselves into nascent political factions
which, by the 1760s, exerted varying degrees of control over the colonial government.
The eastern Presbyterian adherents formed a group known as “the Proprietary Party,”
so named because of their faithfulness to the tenets of William Penn’s religious and
political philosophy, and they were joined by the Anglicans who had also settled in the
Philadelphia region. The Quakers, disillusioned by Penn’s embrace of the Anglican
faith, united with German pietistic religious sects to form a party known as the Quaker or

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“Anti-Proprietary Party.” Selsam at 6-7; Branning, at 10. The Scots-Irish, who were
angry at having their pleas for assistance during the French and Indian War ignored by
the colonial assembly, which was dominated by the Proprietary Party, aligned with the
Anti-Proprietary party as a means of achieving their goal of fair representation in the
assembly. Branning at 10.
Although these political alliances remained intact until the early 1770s, they
began to unravel with the tensions occasioned by the general colonial revulsion at the
heavy-handed tactics of the British Crown — e.g., the imposition of the Stamp Act and
the use of writs of assistance to enforce the Revenue Act — which ultimately culminated
in the Revolutionary War. The Quakers and the Anglicans remained loyal to the British
Crown as these tensions rose. However, the Scots-Irish in the western region, who
dominated the Anti-Proprietary Party, were strongly supportive of the cause of the
opponents of the crown, and they began to demand reforms be made by the colonial
assembly,

controlled

by

the

Proprietary

Party,

including

reapportionment

of

representation to the west. Id. at 11. They were joined in this effort by a large segment
of the working-class population of the City of Philadelphia, disenfranchised by the
requirement of the Charter of Privileges that imposed a property ownership requirement
for the right to vote. This, coupled with the Charter’s restriction of representation in the
assembly to counties, resulted in the underrepresentation of the City of Philadelphia in
colonial affairs, as well as the denial of representation to the western region due to the
assembly’s deliberately slow pace in recognizing new counties in that area. Id. Thus,
by the early 1700s, colonial government remained dominated by the counties of
Philadelphia, Chester, and Bucks, even though they had been eclipsed in population by
the western regions of the colony and the City of Philadelphia.

Selsam at 31-33.

Although, in an effort to placate these groups, the assembly granted a concession by

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giving the west 28 seats in the assembly, while retaining 30 for the east, this did little to
mollify the fervor of these groups for further reform. Branning at 11.
The opportunity for such reform arose with the formal adoption of the Declaration
of Independence by the Continental Congress in 1776. This same Congress also
adopted a resolution suggesting that the colonies adopt constitutions in the event that
they had “no government sufficient to the exigencies of their affairs.” Id. at 12. For the
Pennsylvania colony, this was the catalyst which enabled the reformers from the
western regions and the City of Philadelphia, who were now known as “the radicals,” to
achieve the calling of a constitutional convention. This convention, which was presided
over by Benjamin Franklin, who also was serving at the same time in the Continental
Congress, adopted our Commonwealth’s Constitution of 1776, which, for its time, was
considered very forward thinking.

Id. at 13.

Many of its provisions reflected the

prevailing sentiment of the radical delegates from the frontier and the City of
Philadelphia for a devolution of centralized political power from the hands of a very few,
in order to form a government more directly responsive to the needs of the people.
Thus, it adopted a unicameral legislature on the belief that bicameral legislatures with
one house dominated by elites who were elected on the basis of monetary or property
qualifications would thwart the will of the people, as expressed through their
representatives in the lower chamber, whose members were elected by those whose
right of suffrage was not similarly constrained. Joseph S. Foster, The Politics of
Ideology: The Pennsylvania Constitutional Convention of 1789-1790, 123 Pennsylvania
J. of History, Vol. 59, No. 2 (April 1992). Even though concerned with foundational
matters such as the structure of government, the delegates, in response to their
experience of being excluded from participation in the colonial government, included

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two explicit provisions to establish protections of the right of the people to fair and equal
representation in the governance of their affairs.
The first requirement was that representation be proportional to population and
that reapportionment of legislative seats be done every seven years. See Pa. Const. of
1776, art. I, § IV. As noted by one commentator, this was the direct product of the
personal history of the majority of the delegates, and the requirement of equal
representation was, thus, intended to protect future individuals against the exclusion
from the legislative process “by persons who gained power and intended to keep it.”
John L. Gedid, “History of the Pennsylvania Constitution” as appearing in Ken Gormley,
ed., “The Pennsylvania Constitution A Treatise on Rights and Liberties, 48 (2004).
Concomitant with this requirement, the delegates also deliberately incorporated
into that Constitution the Declaration of Rights – which they considered to be an integral
part of its framework – and therein the first version of Article I, Section 5, which declared
that “all elections ought to be free; and that all free men having a sufficient evident
common interest with, and attachment to the community, have a right to elect officers,
or to be elected into office.” Pa. Const. of 1776, art. I, § VII.
This section reflected the delegates’ desire to secure access to the election
process by all people with an interest in the communities in which they lived — universal
suffrage — by prohibiting exclusion from the election process of those without property
or financial means. It, thus, established a critical “leveling” protection in an effort to
establish the uniform right of the people of this Commonwealth to select their
representatives in government. It sought to ensure that this right of the people would
forever remain equal no matter their financial situation or social class. Gedid, at 51; see
also Selsam, at 190 (“The long struggle by the people for the control of their affairs was
finally rewarded.”).

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Opposition to the new Constitution arose almost immediately, driven chiefly by
the Quakers, Episcopalians, and Germans who had not fought in the Revolution, and
the commercial interests in the City of Philadelphia. Branning at 17. These groups felt
excluded from participation in the new government just as the factions who had written
the 1776 Constitution previously did. Moreover, significant resentment grew over the
increasing political power and attainment of elected office by those of lower
socioeconomic status in the period after 1776. The social and commercial aristocracy
of the Commonwealth resented the acquisition of political control of state government
by the “leather aprons.” Brunhouse at 16. Further, the exclusion of some of the
population through the requirement of “test oaths” in the 1776 Constitution, which
required all voters, candidates for office, and office holders to swear allegiance to
uphold the new frame of government, further alienated those groups, chiefly from the
eastern part of the state, for whom such oaths violated their religious beliefs. Id. These
groups united and became known as the “Anti-Constitutionalists,” and later by the
designation Republicans and, later still, Federalists.67 Supporters of the new charter of
governance were allied into a political faction known as the Constitutionalists.
The strife between these two groups, and deficiencies in the structure of the new
government — i.e., the lack of a strong executive and an ill-defined role for a putative
executive body created by the 1776 Constitution and given power over the legislature,
the Council of Censors — rapidly intensified, such that the Commonwealth’s
government became paralyzed by dysfunction, so much so that the Continental
Congress threatened to take it over. Gedid, at 52. These two factions vied for control

67

As utilized in this history, this designation referred only to their views on the proper
structure of governance, and does not refer to the modern Republican Party which
came into being 60 years later. Gedid, at 52.

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of the Council of Censors and the General Assembly throughout the late 1770s and
1780s. The Republicans, though well represented on the Council of Censors, could not
garner the necessary votes to call a constitutional convention under its rules. However,
popular dissatisfaction with the chaotic state of the Commonwealth’s governance grew
to such a degree that the Republicans gained control of the General Assembly in 1788,
and, in November 1789, they passed legislation to call a constitutional convention.
Branning, at 19.
Although there was some opposition to the calling of the convention by the
Constitutionalists, given that the 1776 Constitution contained no explicit authorization for
the assembly to do so, they, nevertheless, agreed to participate in the convention which
began on November 24, 1789. Rather than continuing the internecine strife that had
continually threatened the new Commonwealth’s government, the leaders of the
Constitutionalists, who were prominent political leaders with deep experience serving in
the Commonwealth government, such as William Findley, forged what was regarded as
an unexpected alliance with powerful members of the leadership of the Republicans,
particularly James Wilson. Foster, at 128-29. The coalition of delegates shepherded by
Findley and Wilson in producing a new Constitution was remarkable, given the regional
and ideological strife which had preceded the convention. Its members represented 16
of the state’s 21 counties, and they came from widely divergent geographic regions of
the Commonwealth, ranging from Northampton County in the northeastern region of the
state to Allegheny and Washington counties in the west. These delegates thus
represented a wide spectrum of people with diverse political, ideological, and religious
views. Id. at 131. Their work yielded a Constitution which, while making the structural
reforms to the Commonwealth’s government favored by the Republicans, such as the
adoption of a bicameral legislature and the creation of the office of chief executive with

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veto power over legislation, also preserved the principle cherished most by the
Constitutionalists – namely, popular elections in which the people’s right to elect their
representatives in government would be equally available to all, and would, hereinafter,
not be intentionally diminished by laws that discriminated against a voter based on his
social or economic status, geography of his residence, or his religious and political
beliefs. Id. at 137-38.
Consequently, popular election of representatives was maintained by the new
Constitution, and applicable in all elections for both houses of the bicameral legislature.
Importantly, consistent with the evident desire of the delegates to neutralize the factors
which had formerly given rise to such rancorous division amongst the people in the
selection of their representatives, the language of Article I, Section 5 was revised to
remove all prior ambiguous qualifying language. In its place, the delegates adopted the
present language of the first clause of Article I, Section 5, which has remained
unchanged to this day by the people of this Commonwealth.68 It states, simply and
plainly, that “elections shall be free and equal.”69
When viewed against the backdrop of the intense and seemingly unending
regional, ideological, and sectarian strife detailed above, which bitterly divided the
people of various regions of our state, this provision must be understood then as a
salutary effort by the learned delegates to the 1790 convention to end, once and for all,
68

The 1790 Constitution was never ratified by popular vote; however, all subsequent
constitutions in which this language is included have been ratified by the people of the
Commonwealth.
69

Indeed, the majority of delegates expressly rejected a proposal to remove the “and
equal” language from the revised amendment. Minutes of the Constitutional Convention
of 1789 at 377. Ours, thus, became the first constitution to utilize this language, and
other states such as Delaware, following our lead, adopted the same language into their
constitution a mere two years later in 1792. Eleven other states since then have
included a “free and equal” clause in their constitutions.

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the primary cause of popular dissatisfaction which undermined the governance of
Pennsylvania: namely, the dilution of the right of the people of this Commonwealth to
select representatives to govern their affairs based on considerations of the region of
the state in which they lived, and the religious and political beliefs to which they
adhered. These historical motivations of the framers have undergirded our Court’s
interpretation of the Free and Equal Elections Clause throughout the years since its
inclusion in our Constitution.
3. Pennsylvania Case Law
As one noted commentator on the Pennsylvania Constitution, Charles Buckalew,
himself a delegate to the 1873 Constitutional Convention, opined, given the
aforementioned history, the words “free and equal” as used in Article I, Section 5 have a
broad and wide sweep:
They strike not only at privacy and partiality in popular
elections, but also at corruption, compulsion, and other
undue influences by which elections may be assailed; at all
regulations of law which shall impair the right of suffrage
rather than facilitate or reasonably direct the manner of its
exercise, and at all its limitations, unproclaimed by the
Constitution, upon the eligibility of the electors for office. And
they exclude not only all invidious discriminations between
individual electors, or classes of electors, but also between
different sections or places in the State.
Charles R. Buckalew, An Examination of the Constitution of Pennsylvania. Exhibiting
The Derivation and History of Its Several Provisions, Article I at 10 (1883).
Our Court has ascribed the same expansive meaning to the terms “free and
equal” in Article I, Section 5. Although our Court has infrequently relied on this provision
to strike down acts of the legislature pertaining to the conduct of elections, the
qualifications of voters to participate therein, or the creation of electoral districts, our
view as to what constraints Article I, Section 5 places on the legislature in these areas

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has been consistent over the years. Indeed, nearly 150 years ago, in considering a
challenge to an act of the legislature establishing eligibility qualifications for electors to
vote in all elections held in Philadelphia, and specifying the manner in which those
elections are to be conducted, we recognized that, while our Constitution gives to the
General Assembly the power to promulgate laws governing elections, those enactments
are nonetheless subject to the requirements of the Free and Equal Elections Clause of
our Constitution, and, hence, may be invalidated by our Court “in a case of plain,
palpable and clear abuse of the power which actually infringes the rights of the
electors.” Patterson, 60 Pa. at 75.
In answering the question of how elections must be made equal, we stated:
“Clearly by laws which shall arrange all the qualified electors into suitable districts, and
make their votes equally potent in the election; so that some shall not have more votes
than others, and that all shall have an equal share in filling the offices of the
Commonwealth.” Id. Thus, with this decision, our Court established that any legislative
scheme which has the effect of impermissibly diluting the potency of an individual’s vote
for candidates for elective office relative to that of other voters will violate the guarantee
of “free and equal” elections afforded by Article I, Section 5. See City of Bethlehem,
515 A.2d at 1323-24 (recognizing that a legislative enactment which “dilutes the vote of
any segment of the constituency” will violate Article I, Section 5). This interpretation is
wholly consonant with the intent of the framers of the 1790 Constitution to ensure that
each voter will have an equally effective power to select the representative of his or her
choice, free from any discrimination on the basis of his or her particular beliefs or views.
In the nearly 150 years since Patterson, our Court has not retreated from this
interpretation of the Free and Equal Elections Clause. In 1914, our Court, in the case of
Winston, supra, considered a challenge under the Free and Equal Elections Clause to

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an act of the legislature which set standards regulating the nominations and elections
for judges and elective offices in the City of Philadelphia. Although our Court ultimately
ruled that the act did not violate this clause, we again reaffirmed that the clause
protected a voter’s individual right to an equal, nondiscriminatory electoral process. In
describing the minimum requirements for “free and fair” elections, we stated:
[E]lections are free and equal within the meaning of the
Constitution when they are public and open to all qualified
electors alike; when every voter has the same right as every
other voter; when each voter under the law has the right to
cast his ballot and have it honestly counted; when the
regulation of the right to exercise the franchise does not
deny the franchise itself, or make it so difficult as to amount
to a denial; and when no constitutional right of the qualified
elector is subverted or denied him.
Winston, 91 A. at 523.
We relied on these principles in the case of In re New Britain Borough School
District, 145 A. 597 (Pa. 1929), to strike down the legislative creation of voting districts
for elective office which, although not overtly depriving electors therein of their right to
choose candidates for office secured by the Free and Equal Elections Clause,
nevertheless operated to impair that right. In that case, the legislature created a new
borough from parts of two existing townships and created a school district which
overlapped the boundaries of the new borough. The new district, thus, encompassed
part of the school district in each of the townships from which it was created. Pursuant
to other acts of the legislature then in force, the court of common pleas of the county in
which the district was situated, upon petition of taxpayers and electors in the newly
created borough, appointed a board of school directors. The creation of the new school
district was ultimately not approved as required by other legislation mandating the
assent of the state board of elections for the creation of the district, and, thus,
technically the residents of the new borough remained within their old school districts.

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Residents of each of the former townships challenged the constitutionality of the
effect of the combination of their former respective school districts under the Free and
Equal Elections Clause, arguing that they had been deprived of their right to select
school directors. Our Court agreed, and found that the residents of the two former
school districts were effectively denied their right to elect representatives of their
choosing to represent them on a body which would decide how their tax monies were
spent. We noted that the residents of the newly created school district could not lawfully
vote for representatives on the school boards of their prior districts, given that they were
no longer legally residents thereof, and they also could not lawfully vote for school
directors in the newly created school district, given that the ballot for every voter was
required to be the same, and, because the new school district had not been approved,
the two groups of borough residents would each have to be given separate ballots for
their former districts. In our discussion of the Free and Equal Elections Clause, our
Court emphasized that the rights protected by this provision may not be taken away by
an act of the legislature, and that that body is prohibited by this clause from interfering
with the exercise of those rights, even if the interference occurs by inadvertence. Id. at
599.
While it is true that our Court has not heretofore held that a redistricting plan
violates the Free and Equal Elections Clause – for example, because it is the product of
politically-motivated gerrymandering – we have never precluded such a claim in our
jurisprudence. Our Court considered a challenge under Article I, Section 5 rooted in
alleged political gerrymandering in the creation of state legislative districts in In re 1991
Pennsylvania Legislative Reapportionment Comm’n, supra. In that case, we entertained
and rejected a claim that political gerrymandering operated to deny a candidate’s
claimed right to run for state legislative office under this provision. We found that the

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individual’s constitutionally protected right to run for state legislative office was protected
by the redistricting plan, but concluded that right did not extend so far as to require that
a reapportionment plan be tailored to allow him to challenge the incumbent of his
choice.
More saliently, in Erfer, our Court specifically held that challenges to the
enactment of a congressional redistricting plan predicated on claims of impermissible
political gerrymandering may be brought under Article I, Section 5.

Therein, we

rebuffed the argument that Article I, Section 5 was limited in its scope of application to
only elections of Commonwealth officials, inasmuch as there was nothing in the plain
text of this provision which would so limit it. Likewise, our own review of the historical
circumstances surrounding its inclusion in the 1790 Constitution, discussed above,
supports our interpretation.
Moreover, in Erfer, we rejected the argument, advanced by Legislative
Respondents in their post-argument filing seeking a stay of our Court’s order of January
22, 2018,70 that, because Article I, Section 4 of the United States Constitution confers
on state legislatures the power to enact congressional redistricting plans, such plans are
not subject to the requirements of the Pennsylvania Constitution:
It is true that the U.S. Constitution has granted our
legislature the power to craft congressional reapportionment
plans. Yet, we see no indication that such a grant of power
simultaneously suspended the constitution of our
Commonwealth vis à vis congressional reapportionment.
Without clear support for the radical conclusion that our
Commonwealth’s Constitution is nullified in challenges to
congressional reapportionment plans, it would be highly
inappropriate for us to circumscribe the operation of the
organic legal document of our Commonwealth.

70

See supra note 8.

[J-1-2018] - 113

Id. at 331.
Ultimately, in Erfer, we did not opine on whether, under our prior decisions
interpreting Article I, Section 5, a congressional redistricting plan would be violative of
the Free and Equal Elections Clause because of political gerrymandering. Although the
petitioners in that case alleged that the redistricting plan at issue therein violated Article
I, Section 5, our Court determined that they had not provided sufficient reasons for us to
interpret our constitutional provision as furnishing additional protections of the right to
vote beyond those recognized by the United States Supreme Court as conferred by the
Equal Protection Clause of the United States Constitution. See id. at 332 (“Petitioners
provide us with no persuasive argument as to why we should, at this juncture, interpret
our constitution in such a fashion that the right to vote is more expansive than the
guarantee found in the federal constitution.”).

Thus, we adjudicated the Article I,

Section 5 challenge in that case solely on federal equal protection grounds, and
rejected it, based on the test for such claims articulated by the plurality of the United
States Supreme Court in Bandemer, supra.
Importantly, however, our Court in Erfer did not foreclose future challenges under
Article I, Section 5 resting solely on independent state grounds. Indeed, the unique
historical reasons discussed above, which were the genesis of Article I, Section 5, and
its straightforward directive that “elections shall be free and equal” suggests such a
separate analysis is warranted. The Free and Equal Elections Clause was specifically
intended to equalize the power of voters in our Commonwealth’s election process, and it
explicitly confers this guarantee; by contrast, the Equal Protection Clause was added to
the United States Constitution 78 years later with the ratification of the Fourteenth
Amendment to address manifest legal inequities which were contributing causes of the

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Civil War, and which persisted in its aftermath, and it contains no such unambiguous
protections.
Moreover, and importantly, when properly presented with the argument, our
Court entertains as distinct claims brought under the Free and Equal Elections Clause
of our Constitution and the federal Equal Protection Clause, and we adjudicate them
separately, utilizing the relevant Pennsylvania and federal standards. In Shankey v.
Staisey, 257 A.2d 897 (Pa. 1969), a group of third-party voters challenged a
Pennsylvania election statute which specified that, in order for an individual’s vote for a
third-party candidate for a particular office in the primary election to be counted, the total
number of aggregate votes by third-party voters for that office had to equal or exceed
the number of signatures required on a nominating petition to be listed on the ballot as a
candidate for that office. The voters’ challenge, which was brought under both the Free
and Equal Elections Clause of the Pennsylvania Constitution and the Equal Protection
Clause of the United States Constitution, alleged that these requirements wrongfully
equated public petitions with ballots, thereby imposing a more stringent standard for
their vote to be counted than that which voters casting ballots for major party candidates
had to meet.
Our Court applied different constitutional standards in deciding these claims. In
considering and rejecting the Article I, Section 5 claim – that the third-party candidates’
right to vote was diminished because of these special requirements – our Court applied
the interpretation of the Free and Equal Elections Clause set forth in Winston, supra,
and ruled that, because the statute required major party candidates and third party
candidates to demonstrate the same numerical level of voter support for their votes to
be counted, the fact that this demonstration was made by ballot as opposed to by
petition did not render the election process unequal. By contrast, in adjudicating the

[J-1-2018] - 115

equal protection claim, our Court utilized the test for an equal protection clause violation
articulated by the United States Supreme Court and examined whether the statute
served to impermissibly classify voters without a reasonable basis to do so.
Given the nature of the petitioners’ argument in Erfer, which was founded on their
apparent belief that the protections of Article I, Section 5 and Article 1, Section 26 were
coextensive, our Court was not called upon, therein, to reassess the validity of the
Shankey Court’s use of a separate and distinct standard for adjudicating a claim that a
particular legislative enactment involving the electoral process violates the Free and
Equal Elections Clause, from that used to determine if the enactment violates the
federal Equal Protection Clause. Thus, we reject Justice Mundy’s assertion that Erfer
requires us, under the principles of stare decisis, to utilize the same standard to
adjudicate a claim of violation of the Free and Equal Elections Clause and the federal
Equal Protection Clause. See Dissenting Opinion (Mundy, J.) at 2-3. To the extent that
Erfer can be read for that proposition, we expressly disavow it, and presently reaffirm
that, in accord with Shankey and the particular history of the Free and Equal Elections
Clause, recounted above, the two distinct claims remain subject to entirely separate
jurisprudential considerations.71
71

Like Pennsylvania, a number of other states go further than merely recognizing the
right to vote, and provide additional and independent protections through provisions in
their constitutions guaranteeing that their elections shall be “free and equal.” Pa. Const.
art. I, § 5. More specifically, the constitutions of twelve additional states contain election
clauses identical to our charter, requiring elections to be “free and equal.” These twelve
other states are: Arizona, Ariz. Const. art. II, § 21; Arkansas, Ark. Const. art. 3, § 2;
Delaware, Del. Const. art. I, § 3; Illinois, Ill. Const. art. III, § 3; Indiana, Ind. Const. art. 2,
§ 1; Kentucky, Ky. Const. § 6; Oklahoma, Okla. Const. art. III, § 5; Oregon, Or. Const.
art. II, § 1; South Dakota, S.D. Const. art. VI, § 19; Tennessee, Tenn. Const. art. I, § 5;
Washington, Wash. Const. art. I, § 19; and Wyoming, Wy. Const. art. I, § 27. While few
have faced reapportionment challenges, state courts have breathed meaning into these
unique constitutional provisions, a few of which are set forth below by way of example.
Specifically, last year, the Court of Chancery of Delaware, in an in-depth treatment of
Delaware’s Constitution, much like that engaged in by our Court today, considered a
(continued…)
[J-1-2018] - 116

4. Other Considerations
In addition to the occasion for the adoption of the Free and Equal Elections
Clause, the circumstances in which the provision was adopted, the mischief to be
remedied, and the object to be obtained, as described above, the consequences of a
particular interpretation are also relevant in our analysis.

Specifically, partisan

gerrymandering dilutes the votes of those who in prior elections voted for the party not
(…continued)
challenge to family-focused events at polling places on election day which induced
parents of students to vote, but which operated as impediments to voting by the elderly
and disabled. In concluding such conduct violated the Delaware Constitution’s
Elections Clause, the court reasoned that an election which provided a targeted group
specific incentives to vote was neither free nor equal, noting the historical concerns in
Delaware regarding the integrity of the election process. Young v. Red Clay
Consolidated School, 159 A.3d 713, 758, 763 (Del. Ch. 2017).
Even more apt, two states, Illinois and Kentucky, have long traditions regarding the
application and interpretation of their elections clauses. In an early Illinois decision, the
Illinois Supreme Court, considering a challenge to a congressional apportionment
statute, cited to the Illinois Constitution and concluded: “[a]n election is free where the
voters are exposed to no intimidation or improper influence and where each voter is
allowed to cast his ballot as his own conscience dictates. Elections are equal when the
vote of each voter is equal in its influence upon the result to the vote of every other
elector—where each ballot is as effective as every other ballot.” Moran v. Bowley, 179
N.E. 526, 531 (Ill. 1932). Similarly, in an early Kentucky decision involving the lack of
printed ballots leaving numerous voters unable to exercise the franchise, that state’s
high court offered that “[t]he very purpose of elections is to obtain a full, fair, and free
expression of the popular will upon the matter, whatever it may be, submitted to the
people for their approval or rejection; and when any substantial number of legal voters
are, from any cause, denied the right to vote, the election is not free and equal, in the
meaning of the [Kentucky] Constitution.” Wallbrecht v. Ingram, 175 S.W. 1022, 1026
(Ky. 1915).
Thus, other states with identical constitutional provisions have considered and applied
their elections clauses to a variety of election challenges, providing important
protections for their voters. While those states whose constitutions have identical “free
and equal” language to that of the Pennsylvania Constitution have not addressed the
identical issue before us today, they, and other states, have been willing to consider and
invigorate their provisions similarly, providing an equal right to each citizen, on par with
every other citizen, to elect their representatives.

[J-1-2018] - 117

in power to give the party in power a lasting electoral advantage. By placing voters
preferring one party’s candidates in districts where their votes are wasted on candidates
likely to lose (cracking), or by placing such voters in districts where their votes are cast
for candidates destined to win (packing), the non-favored party’s votes are diluted. It is
axiomatic that a diluted vote is not an equal vote, as all voters do not have an equal
opportunity to translate their votes into representation. This is the antithesis of a healthy
representative democracy. Indeed, for our form of government to operate as intended,
each and every Pennsylvania voter must have the same free and equal opportunity to
select his or her representatives.

As our foregoing discussion has illustrated, our

Commonwealth’s commitment to neutralizing factors which unfairly impede or dilute
individuals’ rights to select their representatives was borne of our forebears’ bitter
personal experience suffering the pernicious effects resulting from previous electoral
schemes that sanctioned such discrimination.

Furthermore, adoption of a broad

interpretation guards against the risk of unfairly rendering votes nugatory, artificially
entrenching representative power, and discouraging voters from participating in the
electoral process because they have come to believe that the power of their individual
vote has been diminished to the point that it “does not count.” A broad and robust
interpretation of Article I, Section 5 serves as a bulwark against the adverse
consequences of partisan gerrymandering.
5. Conclusion
The above analysis of the Free and Equal Elections Clause – its plain language,
its history, the occasion for the provision and the circumstances in which it was adopted,
the case law interpreting this clause, and consideration of the consequences of our
interpretation – leads us to conclude the Clause should be given the broadest
interpretation, one which governs all aspects of the electoral process, and which

[J-1-2018] - 118

provides the people of this Commonwealth an equally effective power to select the
representative of his or her choice, and bars the dilution of the people’s power to do so.
B. Measurement of Compliance with Article I, Section 5
We turn now to the question of what measures should be utilized to assess a
dilution claim under the Free and Equal Elections Clause of the Pennsylvania
Constitution. Neither Article 1, Section 5, nor any other provision of our Constitution,
articulates explicit standards which are to be used in the creation of congressional
districts. However, since the inclusion of the Free and Equal Elections Clause in our
Constitution in 1790, certain neutral criteria have, as a general matter, been traditionally
utilized to guide the formation of our Commonwealth’s legislative districts in order to
prevent the dilution of an individual’s vote for a representative in the General Assembly.
These standards place the greatest emphasis on creating representational districts that
both maintain the geographical and social cohesion of the communities in which people
live and conduct the majority of their day-to-day affairs, and accord equal weight to the
votes of residents in each of the various districts in determining the ultimate composition
of the state legislature.
Significantly, the framers of the 1790 constitution who authored the Free and
Equal Elections Clause also included a mandatory requirement therein for the
legislature’s formation of state senatorial districts covering multiple counties, namely
that the counties must adjoin one another. Also, the architects of that charter expressly
prohibited the division of any county of the Commonwealth, or the City of Philadelphia,
in the formation of such districts. Pa. Const. of 1776, § 7. Thus, as preventing the
dilution of an individual’s vote was of paramount concern to that august group, it is
evident that they considered maintaining the geographical contiguity of political

[J-1-2018] - 119

subdivisions, and barring the splitting thereof in the process of creating legislative
districts, to afford important safeguards against that pernicious prospect.
In

the

eight-plus

decades

after

the

1790

Constitution

became

our

Commonwealth’s fundamental plan of governance, many problems arose from the
corruption of the political process by well-heeled special interest groups who rendered
our representative democracy deeply dysfunctional by weakening the power of an
individual’s vote through, inter alia, their selection, and financial backing in the electoral
process, of representatives who exclusively served their narrow interests and not those
of the people as a whole. Gedid, supra, at 61-63. One of the methods by which the
electoral process was manipulated by these interest groups to attain those objectives
was the practice of gerrymandering, popular revulsion of which became one of the
driving factors behind the populace’s demand for the calling of the 1873 Constitutional
Convention.
As noted by an eminent authority on Pennsylvania constitutional law, by the time
of that convention, gerrymandering was regarded as “one of the most flagrant evils and
scandals of the time, involving notorious wrong to the people and open disgrace to
republican institutions.” Thomas Raeburn White, Commentaries on the Constitution of
Pennsylvania 61 (1907). Although the delegates to that convention did not completely
eliminate this practice through the charter of governance which they adopted, and which
the voters subsequently approved, they nevertheless included significant protections
against its occurrence through the explicit adoption of certain requirements which all
state legislative districts were, thereafter, required to meet: (1) the population of such
districts must be equal, to the extent possible; (2) the district that is created must be
comprised of compact and contiguous geographical territory; and (3) the district
respects the boundaries of existing political subdivisions contained therein, such that

[J-1-2018] - 120

the district divides as few of those subdivisions as possible. Pa. Const. of 1874, art. 2,
§ 16. Given the great concern of the delegates over the practice of gerrymandering
occasioned by their recognition of the corrosive effects on our entire democratic process
through the deliberate dilution of our citizenry’s individual votes, the focus on these
neutral factors must be viewed, then, as part of a broader effort by the delegates to that
convention to establish “the best methods of representation to secure a just expression
of the popular will.”

Branning at 59 (quoting Wayne Mac Veach, Debates of the

Convention to Amend the Constitution of Pennsylvania, Volume I at 45 (1873)).
Consequently, these factors have broader applicability beyond setting standards for the
drawing of electoral districts for state legislative office.
The utility of these requirements to prevent vote dilution through gerrymandering
retains continuing vitality, as evidenced by our present Constitution, adopted in 1968. In
that charter, these basic requirements for the creation of senatorial districts were not
only retained, but, indeed, were expanded by the voters to govern the establishment of
election districts for the selection of their representatives in the state House of
Representatives. Pa. Const., art. 2, § 16.
Because these factors are deeply rooted in the organic law of our
Commonwealth, and continue to be the foundational requirements which state
legislative districts must meet under the Pennsylvania Constitution, we find these
neutral benchmarks to be particularly suitable as a measure in assessing whether a
congressional districting plan dilutes the potency of an individual’s ability to select the
congressional representative of his or her choice, and thereby violates the Free and
Equal Elections Clause.

In our judgment, they are wholly consistent with the

overarching intent of the framers of the 1790 Constitution that an individual’s electoral
power not be diminished through any law which discriminatorily dilutes the power of his

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or her vote, and, thus, they are a measure by which to assess whether the guarantee to
our citizenry of “free and equal” elections promised by Article, I Section 5 in the
selection of their congressional representative has been violated.

Because the

character of these factors is fundamentally impartial in nature, their utilization reduces
the likelihood of the creation of congressional districts which confer on any voter an
unequal advantage by giving his or her vote greater weight in the selection of a
congressional representative as prohibited by Article I, Section 5. Thus, use of these
objective factors substantially reduces the risk that a voter in a particular congressional
district will unfairly suffer the dilution of the power of his or her vote.
Moreover, rather than impermissibly lessening the power of an individual’s vote
based on the geographical area in which the individual resides – which, as explained
above, Article I, Section 5 also prohibits – the use of compactness, contiguity, and the
maintenance of the integrity of the boundaries of political subdivisions maintains the
strength of an individual’s vote in electing a congressional representative. When an
individual is grouped with other members of his or her community in a congressional
district for purposes of voting, the commonality of the interests shared with the other
voters in the community increases the ability of the individual to elect a congressional
representative for the district who reflects his or her personal preferences.
approach inures to no political party’s benefit or detriment.

This

It simply achieves the

constitutional goal of fair and equal elections for all of our Commonwealth’s voters.
Finally, these standards also comport with the minimum requirements for congressional
districts guaranteed by the United States Constitution, as interpreted by the United
States Supreme Court. See Wesberry v. Sanders, 376 U.S. 1, 18 (1964) (holding that
the plain objective of the United States Constitution is to make “equal representation for
equal numbers of people the fundamental goal for the House of Representatives.”).

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Consequently, for all of these reasons, and as expressly set forth in our Order of
January 22, 2018, we adopt these measures as appropriate in determining whether a
congressional redistricting plan violates the Free and Equal Elections Clause of the
Pennsylvania Constitution.

Therefore, an essential part of such an inquiry is an

examination of whether the congressional districts created under a redistricting plan are:
composed of compact and contiguous territory; as nearly
equal in population as practicable; and which do not divide
any county, city, incorporated town, borough, township, or
ward, except where necessary to ensure equality of
population.
Order, 1/22/19, at ¶ “Fourth.”72
We recognize that other factors have historically played a role in the drawing of
legislative districts, such as the preservation of prior district lines, protection of
incumbents, or the maintenance of the political balance which existed after the prior
reapportionment. See, e.g., Holt I, 38 A.3d at 1235. However, we view these factors to
be wholly subordinate to the neutral criteria of compactness, contiguity, minimization of
the division of political subdivisions, and maintenance of population equality among
congressional districts.

These neutral criteria provide a “floor” of protection for an

individual against the dilution of his or her vote in the creation of such districts.
When, however, it is demonstrated that, in the creation of congressional districts,
these neutral criteria have been subordinated, in whole or in part, to extraneous
considerations such as gerrymandering for unfair partisan political advantage, a
congressional redistricting plan violates Article I, Section 5 of the Pennsylvania
Constitution. We note that, consistent with our prior interpretation of Article I, Section 5,
72

Nothing herein is intended to suggest that congressional district maps must not also
comply with federal law, and, most specifically, the Voting Rights Act, 52 U.S.C. §
10301.

[J-1-2018] - 123

see In re New Britain Borough School District, supra, this standard does not require a
showing that the creators of congressional districts intentionally subordinated these
traditional criteria to other considerations in the creation of the district in order for it to
violate Article I, Section 5; rather, it is sufficient to establish a violation of this section to
show that these traditional criteria were subordinated to other factors.
However, this is not the exclusive means by which a violation of Article I, Section
5 may be established. As we have repeatedly emphasized throughout our discussion,
the overarching objective of this provision of our constitution is to prevent dilution of an
individual’s vote by mandating that the power of his or her vote in the selection of
representatives be equalized to the greatest degree possible with all other Pennsylvania
citizens. We recognize, then, that there exists the possibility that advances in map
drawing technology and analytical software can potentially allow mapmakers, in the
future, to engineer congressional districting maps, which, although minimally comporting
with these neutral “floor” criteria, nevertheless operate to unfairly dilute the power of a
particular group’s vote for a congressional representative. See N.T. Trial, 12/13/17, at
839-42 (Dr. Warshaw discussing the concept of an efficiency gap based on the number
of “wasted” votes for the minority political party under a particular redistricting plan).
However, as the case at bar may be resolved solely on the basis of consideration of the
degree to which neutral criteria were subordinated to the pursuit of partisan political
advantage, as discussed below, we need not address at this juncture the possibility of
such future claims.73
73

In her dissenting opinion, Justice Mundy inexplicably contends that our allowance for
the possibility that a future challenge to a future plan might show dilution even though
the neutral redistricting criteria were adhered to “undermines the conclusion” that there
is a violation in this case. Dissenting Opinion (Mundy, J.) at 3. However, as we state
above, and as we discuss further below, assessment of those criteria fully, and solely,
supports our conclusion in this case.

[J-1-2018] - 124

We are confident, however, that, technology can also be employed to aid in the
expeditious development of districting maps, the boundaries of which are drawn to
scrupulously adhere to neutral criteria. Indeed, as this Court highlighted in Holt I, “the
development of computer technology appears to have substantially allayed the initial,
extraordinary difficulties in” meeting such criteria. Holt I, 38 A.3d at 760; see also id. at
750 (noting that, since 1991, technology has provided tools allowing mapmakers to
“achieve increasingly ‘ideal’ districts”) (citing Gormley, Legislative Reapportionment, at
26–27, 45–47); see also Larios v. Cox, 305 F.Supp.2d. 1335, 1342 (N.D. Ga. 2004)
(“given recent advances in computer technology, constitutional plans can be crafted in
as short a period as one day”). As this Court views the record in this case, in the
context of the computer technology of 2018, this thesis has clearly been proven.
C. Application to the 2011 Plan
Having established the means by which we measure a violation of Article I,
Section 5, we now apply that measure to the 2011 Plan. Doing so, it is clear, plain, and
palpable that the 2011 Plan subordinates the traditional redistricting criteria in the
service of partisan advantage, and thereby deprives Petitioners of their state
constitutional right to free and equal elections. See West Mifflin Area School District, 4
A.3d at 1048. Indeed, the compelling expert statistical evidence presented before the
Commonwealth Court, in combination with and illustrated by an examination of the Plan
itself and the remainder of the evidence presented below, demonstrates that the Plan
cannot plausibly be directed at drawing equally populous, compact, and contiguous
districts which divide political subdivisions only as necessary to ensure equal
population.
Perhaps the most compelling evidence concerning the 2011 Plan derives from
Dr. Chen’s expert testimony. As detailed above, Dr. Chen created two sets of 500

[J-1-2018] - 125

computer-simulated Pennsylvania redistricting plans, the first of which – Simulated Set
1 – employed the traditional redistricting criteria of population equality, compactness,
contiguousness, and political-subdivision integrity – i.e., a simulation of the potential
range of redistricting plans attempting to apply the traditional redistricting criteria. Dr.
Chen’s Simulated Set 1 plans achieved population equality and contiguity; had a range
of Reock Compactness Scores from approximately .31 to .46, which was significantly
more compact than the 2011 Plan’s score of .278; and had a range of Popper-Polsby
Compactness Scores from approximately .29 to .35, which was significantly more
compact than the 2011 Plan’s score of .164. Further, his simulated plans generally split
between 12-14 counties and 40-58 municipalities, in sharp contrast to the 2011 Plan’s
far greater 28 county splits and 68 municipality splits. In other words, all of Dr. Chen’s
Simulated Set 1 plans, which were, again, a simulation of the potential range of
redistricting plans attempting to apply the traditional redistricting criteria, were more
compact and split fewer political subdivisions than the 2011 Plan, establishing that a
process satisfying these traditional criteria would not lead to the 2011 Plan’s adoption.
Thus, Dr. Chen unsurprisingly opined that the 2011 Plan subordinated the goals of
compactness and political-subdivision integrity to other considerations.74 Dr. Chen’s
testimony in this regard establishes that the 2011 Plan did not primarily consider, much
less endeavor to satisfy, the traditional redistricting criteria.75
74

Dr. Chen also credibly rebutted the notion that the 2011 Plan’s outlier status derived
from a hypothetical attempt to protect congressional incumbents – which attempt still, in
any event, subordinated the traditional redistricting factors to others – or an attempt to
establish the 2011 Plan’s majority African-American district.
75

Indeed, the advent of advanced technology and increased computing power
underlying Dr. Chen’s compelling analysis shows such technology need not be
employed, as the record shows herein, for illicit partisan gerrymandering. As discussed
above, such tools will, just as powerfully, aid the legislature in performing its redistricting
function in comportment with traditional redistricting factors and their constituents’
(continued…)
[J-1-2018] - 126

Dr. Chen’s testimony in this regard comports with a lay examination of the Plan,
which reveals tortuously drawn districts that cause plainly unnecessary politicalsubdivision splits.

In terms of compactness, a rudimentary review reveals a map

comprised of oddly shaped, sprawling districts which wander seemingly arbitrarily
across Pennsylvania, leaving 28 counties, 68 political subdivisions, and numerous
wards, divided among as many as five congressional districts, in their wakes.
Significantly, these districts often rend municipalities from their surrounding metropolitan
areas and quizzically divide small municipalities which could easily be incorporated into
single districts without detriment to the traditional redistricting criteria. As Dr. Kennedy
explained below, the 7th Congressional District, pictured above, has been referred to as
resembling “Goofy kicking Donald Duck,” and is perhaps chief among a number of rivals
in this regard, ambling from Philadelphia’s suburbs in central Montgomery County,
where it borders four other districts, south into Delaware County, where it abuts a fifth,
then west into Chester County, where it abuts another district and travels northwest
before jutting out in both northerly and southerly directions into Berks and Lancaster
Counties. Indeed, it is difficult to imagine how a district as Rorschachian and sprawling,
which is contiguous in two locations only by virtue of a medical facility and a
seafood/steakhouse, respectively, might plausibly be referred to as “compact.”
Moreover, in terms of political subdivision splits, the 7 th Congressional District splits
each of the five counties in its path and some 26 separate political subdivisions between
multiple congressional districts. In other words, the 7th Congressional District is itself
responsible for 17% of the 2011 Plan’s county splits and 38% of its municipality splits.

(…continued)
constitutional rights, as well as aiding courts in their evaluations of whether the
legislature satisfied its obligations in this regard.

[J-1-2018] - 127

The 7th Congressional District, however, is merely the starkest example of the
2011 Plan’s overall composition. As pictured above, and as discussed below, many of
the 2011 Plan’s congressional districts similarly sprawl through Pennsylvania’s
landscape, often contain “isthmuses” and “tentacles,” and almost entirely ignore the
integrity of political subdivisions in their trajectories.76 Although the 2011 Plan’s odd
shapes and seemingly arbitrary political subdivision splits are not themselves sufficient
to conclude it is not predicated on the traditional redistricting factors, Dr. Chen’s cogent
analysis confirms that these anomalous shapes are neither necessary to, nor within the
ordinary range of, plans generated with solicitude toward, applying traditional
redistricting considerations.
The fact that the 2011 Plan cannot, as a statistical matter, be a plan directed at
complying with traditional redistricting requirements is sufficient to establish that it
violates the Free and Equal Elections Clause.

Nevertheless, we acknowledge the

multitude of evidence introduced in the Commonwealth Court showing that its deviation
from these traditional requirements was in service of, and effectively works to, the unfair
partisan advantage of Republican candidates in future congressional elections and,
conversely, dilutes Petitioners’ power to vote for congressional representatives who
represent their views. Dr. Chen explained that, while his simulated plans created a
range of up to 10 safe Republican districts with a mean-median vote gap of 0 to 4%, the
2011 Plan creates 13 safe Republican districts with a mean-median vote gap of 5.9%.
76

Indeed, the bulk of the 2011 Plan’s districts make then-Massachusetts Governor
Elbridge Gerry’s eponymous 1812 partisan redistricting plan, criticized at the time for its
salamander-like appearance – hence, “Gerry-mander” – and designed to dilute extant
Federalist political power, appear relatively benign in comparison. See generally
Jennifer
Davis,
“Elbridge
Gerry
and
the
Monstrous
Gerrymander,”
https://blogs.loc.gov/law/2017/02/elbridge-gerry-and-the-monstrous-gerrymander (Feb.
10, 2017).

[J-1-2018] - 128

Dr. Chen also credibly rejected the notion that the 2011 Plan’s outlier status in this
regard was attributable to an attempt to account for Pennsylvania’s political geography,
to protect incumbent congresspersons, or to establish the 2011 Plan’s majority-African
American district. Indeed, he explicitly concluded that the traditional redistricting criteria
were jettisoned in favor of unfair partisan gain.

Dr. Warshaw’s testimony similarly

detailed how the 2011 Plan not only preserves the modest natural advantage, or vote
efficiency gap, in favor of Republican congressional candidates relative to Republicans’
statewide vote share – which owes to the fact that historically Democratic voters tend to
self-sort into metropolitan areas and which he testified, until the 2011 Plan, was “never
far from zero” percent – but also creates districts that increase that advantage to
between 15 to 24% relative to statewide vote share. In other words, in its disregard of
the traditional redistricting factors, the 2011 Plan consistently works toward and
accomplishes the concentration of the power of historically-Republican voters and,
conversely, the corresponding dilution of Petitioners’ power to elect their chosen
representatives.
Indeed, these statistical analyses are illustrated to some degree by Dr.
Kennedy’s discussion of the 2011 Plan’s particulars.

Dr. Kennedy, for example,

explained that, at the district-by-district level, the 2011 Plan’s geospatial oddities and
divisions of political subdivisions and their wards effectively serve to establish a few
overwhelmingly Democratic districts and a large majority of less strong, but
nevertheless likely Republican districts. For example, the 1 st Congressional District,
beginning in Northeast Philadelphia and largely tracking the Delaware River,
occasionally reaches “tentacles” inland, incorporating Chester, Swarthmore, and other

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historically Democratic regions.77 Contrariwise, although the 3rd Congressional District
formerly contained traditionally-Democratic Erie County in its entirety, the 2011 Plan’s
3rd and 5th Congressional Districts now divide that constituency, making both districts
likely to elect Republican candidates.78 Additionally, it is notable that the 2011 Plan’s
accommodation for Pennsylvania’s loss of one congressional seat took the form of
redrawing its 12th Congressional District, a 120-mile-long district that abuts four others
and pitted two Democratic incumbent congressmen against one another in the next
cycle’s primary election, after which the victor of that contest lost to a Republican
candidate who gleaned 51.2% of the general election vote.

These geographic

idiosyncrasies, the evidentiary record shows, served to strengthen the votes of voters
inclined to vote for Republicans in congressional races and weaken those inclined to
vote for Democrats.
In sum, we conclude that the evidence detailed above and the remaining
evidence of the record as a whole demonstrates that Petitioners have established that
the 2011 Plan subordinates the traditional redistricting criteria in service of achieving
unfair partisan advantage, and, thus, violates the Free and Equal Elections Clause of
the Pennsylvania Constitution. Such a plan, aimed at achieving unfair partisan gain,
undermines voters’ ability to exercise their right to vote in free and “equal” elections if
the term is to be interpreted in any credible way.

77

Notably, in the last three congressional elections, voters in the 1 st Congressional
District elected a Democratic candidate with 84.9%, 82.8%, and 82.2% of the vote,
respectively.
78

In the 2012 and 2014 congressional elections, voters in the 3 rd Congressional District
elected a Republican candidate with 57.1% and 60.6% of the vote, respectively, and, by
2016, the Republican candidate ran unopposed.

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An election corrupted by extensive, sophisticated gerrymandering and partisan
dilution of votes is not “free and equal.”

In such circumstances, a “power, civil or

military,” to wit, the General Assembly, has in fact “interfere[d] to prevent the free
exercise of the right of suffrage.” Pa. Const. art. 1, § 5.

VI. Remedy
Having set forth why the 2011 Plan is constitutionally infirm, we turn to our
January 22, 2018 Order which directed a remedy for the illegal plan. Therein, our Court
initially invited our sister branches – the legislative and executive branches – to take
action, through the enactment of a remedial congressional districting plan; however,
recognizing the possibility that the legislature and executive would be unwilling or
unable to act, we indicated in our Order that, in that eventuality, we would fashion a
judicial remedial plan:
Second, should the Pennsylvania General Assembly
choose to submit a congressional districting plan that
satisfies the requirements of the Pennsylvania Constitution,
it shall submit such plan for consideration by the Governor
on or before February 9, 2018. If the Governor accepts the
General Assembly’s congressional districting plan, it shall be
submitted to this Court on or before February 15, 2018.
Third, should the General Assembly not submit a
congressional districting plan on or before February 9, 2018,
or should the Governor not approve the General Assembly’s
plan on or before February 15, 2018, this Court shall
proceed expeditiously to adopt a plan based on the
evidentiary record developed in the Commonwealth Court.
In anticipation of that eventuality, the parties shall have the
opportunity to be heard; to wit, all parties and intervenors
may submit to the Court proposed remedial districting plans
on or before February 15, 2018.
Order, 1/22/18, at ¶¶ “Second” and “Third.”

[J-1-2018] - 131

As to the initial and preferred path of legislative and executive action, we note
that the primary responsibility and authority for drawing federal congressional legislative
districts rests squarely with the state legislature. See U.S. Const. art. I, § 4; Butcher,
216 A.2d at 458 (“[W]e considered it appropriate that the Legislature, the organ of
government with the primary responsibility for the task of reapportionment, be afforded
an additional opportunity to enact a constitutional reapportionment plan.”); Growe v.
Emison, 507 U.S. 25, 34 (1993) (stating that “the Constitution leaves with the States
primary responsibility for apportionment of their federal congressional and state
legislative districts”); Wise v. Lipscomb, 437 U.S. 535, 539 (1978); Reynolds, 377 U.S.
at 586.

Thus, in recognizing this foundational tenet, but also considering both the

constitutionally infirm districting plan and the imminent approaching primary elections for
2018, we requested that these sister branches enact legislation regarding a new
districting plan, providing a deadline to do so approximately three weeks from the date
of our Order. Indeed, if the legislature and executive timely enact a remedial plan and
submit it to our Court, our role in this matter concludes, unless and until the
constitutionality of the new plan is challenged.
When, however, the legislature is unable or chooses not to act, it becomes the
judiciary's role to determine the appropriate redistricting plan.

Specifically, while

statutes are cloaked with the presumption of constitutionality, it is the duty of this Court,
as a co-equal branch of government, to declare, when appropriate, certain acts
unconstitutional. Indeed, matters concerning the proper interpretation and application of
our Commonwealth’s organic charter are at the end of the day for this Court ― and only
this Court. Pap’s II, 812 A.2d at 611 (noting Supreme Court has final word on meaning
of Pennsylvania Constitution). Further, our Court possesses broad authority to craft

[J-1-2018] - 132

meaningful remedies when required. Pa. Const. art. V, §§ 1, 2, 10; 42 Pa.C.S. § 726
(granting power to “enter a final order or otherwise cause right and justice to be done”).
Thus, as an alternative to the preferable legislative route for creating a remedial
redistricting plan, in our Order, we considered the possibility that the legislature and
Governor would not agree upon legislation providing for a remedial plan, and, thus, we
allowed for the prospect of a judicially-imposed remedial plan. Our narrowly crafted
contingency, which afforded all parties and Intervenors a full and fair opportunity to
submit proposed remedial plans for our consideration, was well within our judicial
authority, and supported by not only our Constitution and statutes as noted above, but
by Commonwealth and federal precedent, as well as similar remedies provided by the
high courts of other states acting when their sister branches fail to remedy an
unconstitutional plan.
Perhaps the clearest balancing of the legislature’s primary role in districting
against the court’s ultimate obligation to ensure a constitutional plan was set forth in our
decision in Butcher. In that matter, our Court, after concluding a constitutionally infirm
redistricting of both houses of the General Assembly resulted in an impairment of our
citizens’ right to vote, found it prudent to allow the legislature an additional opportunity
to enact a legal remedial plan. Butcher, 216 A.2d at 457-58. Yet, we also made clear
that a failure to act by the General Assembly by a date certain would result in judicial
action “to ensure that the individual voters of this Commonwealth are afforded their
constitutional right to cast an equally weighted vote.” Id. at 458-59. After the deadline
passed without enactment of the required statute, we fashioned affirmative relief, after
the submission of proposals by the parties. Id. at 459. Our Order in this matter, cited
above, is entirely consistent with our remedy in Butcher. See also Mellow v. Mitchell,
607 A.2d 204, 205-06 (Pa. 1992) (designating master in wake of legislative failure to

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remedy redistricting of seats for the Pennsylvania House of Representatives which was
held to be unconstitutional).
Our approach is also buttressed by, and entirely consistent with, the United
States Supreme Court’s landmark ruling in Baker v. Carr, 369 U.S. 186 (1962), and
more recent decisions from the United States Supreme Court which make concrete the
state judiciary’s ability to formulate a redistricting plan, when necessary.

See, e.g.,

Growe; Scott v. Germano, 381 U.S. 407 (1965) (per curiam). As described by the high
Court in Wise, “Legislative bodies should not leave their reapportionment tasks to the
federal courts; but when those with legislative responsibilities do not respond, or the
imminence of a state election makes it impractical for them to do so, it becomes the
‘unwelcome obligation,’ Conner v. Finch, [431 U.S. 407, 415 (1977)], of the federal court
to devise and impose a reapportionment plan pending later legislative action.” Wise,
437 U.S. at 540. The same authority to act is inherent in the state judiciary.
Specifically, in Growe, the United States Supreme Court was faced with the issue
of concurrent jurisdiction between a federal district court and the Minnesota judiciary
regarding Minnesota’s state legislative and federal congressional districts. The high
Court, in a unanimous decision authored by Justice Scalia, specifically recognized the
role of the state judiciary in crafting relief: “In the reapportionment context, the Court has
required federal judges to defer [to] consideration of disputes involving redistricting
where the State, through its legislative or judicial branch, has begun to address that
highly political task itself.” Growe, 507 U.S. at 33 (emphasis original). As an even more
pointed endorsement of the state judiciary’s ability to craft appropriate relief – indeed,
encouraging action by the state judiciary – the Growe Court quoted its prior decision in
Scott:
The power of the judiciary of a State to require valid
reapportionment or to formulate a valid redistricting plan has
not only been recognized by this Court but appropriate
[J-1-2018] - 134

action by the States in such cases has been specifically
encouraged.
Id. at 33 (quoting Scott, 381 U.S. at 409) (emphasis added).
Thus, the Growe Court made clear the important role of the state judiciary in
ensuring valid reapportionment schemes, not only through an assessment of
constitutionality, but also through the enactment of valid legislative redistricting plans.
Pursuant to Growe, therefore, although the legislature has initial responsibility to act in
redistricting matters, that responsibility can shift to the state judiciary if a state
legislature is unable or unwilling to act, and then to the federal judiciary only once the
state legislature or state judiciary have not undertaken to remedy a constitutionally
infirm plan.
Finally, virtually every other state that has considered the issue looked, when
necessary, to the state judiciary to exercise its power to craft an affirmative remedy and
formulate a valid reapportionment plan. See, e.g., People ex rel. Salazar v. Davidson,
79 P.3d 1221, 1229 (Colo. 2003) (offering, in addressing the issue of how frequently the
legislature can draw congressional districts, that United States Supreme Court is clear
that states have the primary responsibility in congressional redistricting, and that federal
courts must defer to the states, including state courts, especially in matters turning on
state constitution); Hippert v. Richie, 813 N.W.2d 374, 378 (Minn. 2012) (explaining that,
as legislature and Governor failed to enact a legislative redistricting plan by deadline, it
was up to the state judiciary to prepare a valid legislative plan and order its adoption,
citing Growe as “precisely the sort of state judicial supervision of redistricting” that the
United States Supreme Court has encouraged); Brown v. Butterworth, 831 So.2d 683,
688-89 (D.C. App. Fla 2002) (emphasizing constitutional power of state judiciary to
require valid reapportionment); Stephenson v. Bartlett, 562 S.E.2d 377, 384 (N.C. 2002)
(noting that it is only the Supreme Court of North Carolina that can answer state

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constitutional questions with finality, and that, “within the context of state redistricting
and reapportionment disputes, it is well within the ‘power of the judiciary of a State to
require valid reapportionment or to formulate a valid redistricting plan’” (quoting
Germano, 381 U.S. at 409)); Wilson v. Fallin, 262 P.3d 741, 745 (Okla. 2013) (holding
that three decades after Baker v. Carr, the United States Supreme Court in Growe was
clear that state courts may exercise jurisdiction over legislative redistricting and that
federal courts should defer to state action over questions of state redistricting by state
legislatures and state courts); Alexander v. Taylor, 51 P.3d 1204, 1208 (Okla. 2002) (“It
is clear to us that [Baker and Growe], . . . stand for the proposition that Art. 1, § 4 does
not prevent either federal or state courts from resolving redistricting disputes in a proper
case.”); Boneshirt v. Hazeltine, 700 N.W.2d 746, 755 (S.D. 2005) (Konenkamp, J.,
concurring) (opining that the Supreme Court recognized that “[t]he power of the judiciary
of a State to require valid reapportionment or to formulate a valid redistricting plan has
not only been recognized by this Court but appropriate action by the States in such
cases has been specifically encouraged” and that both “[r]eason and experience argue
that courts empowered to invalidate an apportionment statute which transgresses
constitutional mandates cannot be left without the means to order appropriate relief.”);
Jensen v. Wisconsin Board of Elections, 639 N.W.2d 537, 542 (Wis. 2002) (per curiam)
(noting deference of federal courts regarding “consideration of disputes involving
redistricting where the State, through its legislative or judicial branch, has begun to
address that highly political task itself” and that “any redistricting plan judicially ‘enacted’
by a state court (just like one enacted by a state legislature) would be entitled to
presumptive full-faith-and-credit legal effect in federal court.”); but see Maudlin v.
Branch, 866 So.2d 429 (Miss. 2003) (finding, under Mississippi statute, no Mississippi
court had jurisdiction to draw plans for congressional districting).

[J-1-2018] - 136

Thus, it is beyond peradventure that it is the legislature, in the first instance, that
is primarily charged with the task of reapportionment.

However, the Pennsylvania

Constitution, statutory law, our Court’s decisions, federal precedent, and case law from
our sister states, all serve as a bedrock foundation on which stands the authority of the
state judiciary to formulate a valid redistricting plan when necessary. Our prior Order,
and this Opinion, are entirely consistent with such authority.79

VII. Conclusion
For all of these reasons, the Court entered its Order of January 22, 2018, striking
as unconstitutional the Congressional Redistricting Act of 2011, and setting forth a
process assuring that a remedial redistricting plan would be in place in time for the 2018
Primary Elections.
Justices Donohue, Dougherty and Wecht join the opinion.
Justice Baer files a concurring and dissenting opinion.
Chief Justice Saylor files a dissenting opinion in which Justice Mundy joins.

79

Justice Mundy, in her dissent, seemingly reads the federal Elections Clause in a
vacuum, and, to the extent that she suggests an inability, or severely circumscribed
ability, of state courts generally, or of our Court sub judice, to act, this approach has not
been embraced or suggested by the United States Supreme Court or the Pennsylvania
Supreme Court for over a half century. Indeed, to read the federal Constitution in a way
that limits our Court in its power to remedy violations of our Commonwealth’s
Constitution is misguided and directly contrary to bedrock notions of federalism
embraced in our federal Constitution, and evinces a lack of respect for state rights. In
sum, and as fully set forth above, in light of interpretations of the Elections Clause like
that found in Growe – which encourage federal courts to defer to state redistricting
efforts, including congressional redistricting, and expressly permit the judicial creation of
redistricting maps when a legislature fails to act – as well as essential jurisprudential
concepts of comity and federalism, it is beyond peradventure that state courts possess
the authority to grant equitable remedies for constitutional violations, including the
drawing of congressional maps (of course, subject to federal safeguards and,
principally, the Voting Rights Act).

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Justice Mundy files a dissenting opinion.

[J-1-2018] - 138

Appendix A

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EXHIBIT G

[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
:
:
:
:
:
:
:
:
:
:
:
:
:
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 OPINION
CHIEF JUSTICE SAYLOR

FILED: February 7, 2018

I incorporate by reference my dissenting statement to the Order of January 22,
2018, per which the majority invalidated Pennsylvania’s current congressional districting
scheme. In summary, I believe that: the present exercise of extraordinary jurisdiction
was improvident; this Court’s review would benefit from anticipated guidance from the
Supreme Court of the United States; awaiting such guidance is particularly appropriate
given the delay, until 2017, of Petitioners’ challenge to a 2011 redistricting plan; and the
appropriate litmus for judicial review of redistricting should take into account the
inherently political character of the work of the General Assembly, to which the task of
redistricting has been assigned by the United States Constitution.

See League of

Women Voters of Pa. v. Commonwealth, ___ Pa. ___, ___, ___ A.3d ___, ___, 2018
WL 496907, *1 (Jan. 22, 2018) (mem.) (Saylor, C.J., dissenting).
Further, I respectfully disagree with the majority opinion in many other material
respects. Initially, I certainly have no cause to differ with the broader strokes comprising
the bulk of the opinion, including the historical accounts and the confirmation of “a
voter’s right to equal protection in the electoral process for the selection of his or her
representatives in government,” Majority Opinion, slip op. at 100, which is a right that is
also recognized under federal constitutional law. See Vieth v. Jubelirer, 541 U.S. 267,
292, 124 S. Ct. 1769, 1785 (2004) (plurality) (expressing agreement with a dissenting

[J-1-2018] - 2

Justice that severe partisan gerrymanders are inconsistent with democratic principles
and may violate the Equal Protection Clause, albeit maintaining that the judiciary is
incapable of devising manageable standards for the assessments of degree).
The Supreme Court of the United States has also emphasized, however, that
redistricting is committed to the political branch and is inherently political. 1

In this

regard, the application of constitutional principles governing individual rights in the
context of legislative redistricting is sui generis, given the inevitable tension between the
power allocated to the Legislature to make political choices and the individual rights of
voters relative to the exercise of the franchise.2 Moreover, in terms of the individualrights component – and contrary to the majority’s perspective – there is no right to an
“equally effective power” of voters in elections, Majority Opinion, slip op. at 110. Cf.
Vieth, 541 U.S. at 288, 124 S. Ct. at 1782 (“[T]he [federal] Constitution . . . guarantees
equal protection of the law to persons, not equal representation in government to
equivalently sized groups. It nowhere says that farmers or urban dwellers, Christian
fundamentalists or Jews, Republicans or Democrats, must be accorded political
strength proportionate to their numbers.”). For example, the phenomenon of “packing,”
1

See generally Vieth, 541 U.S. at 274-77, 124 S. Ct. at 1774-76 (discussing the history
of political gerrymandering in the United States); id. at 285, 124 S. Ct. at 1781 (“The
Constitution clearly contemplates districting by political entities, and unsurprisingly that
turns out to be root-and-branch a matter of politics.”); id. at 344, 124 S. Ct. at 1815
(Souter, J.) (observing “some intent to gain political advantage is inescapable whenever
political bodies devise a district plan, and some effect results from the intent”); id. at
358, 124 S. Ct. at 1823 (Breyer, J.) (explaining that “political considerations will likely
play an important, and proper, role in the drawing of district boundaries”); Gaffney v.
Cummings, 412 U.S. 735, 753, 93 S. Ct. 2321, 2331 (1973) (“Politics and political
considerations are inseparable from districting and apportionment.”).
2

Cf. Vieth, 541 U.S. at 360, 124 S. Ct. at 1824 (Breyer, J., dissenting) (depicting
traditional or historically based voting-district boundaries as “an uneasy truce,
sanctioned by tradition, among different parties seeking political advantage”).
[J-1-2018] - 3

and the corresponding dilution of the effect of some votes, will occur naturally as a
result of population distribution, particularly in urban areas where there is often an
aggregation of similar-minded voters. See Vieth, 541 U.S. at 290-91, 124 S. Ct. at
1783; id. at 359, 124 S. Ct. at 1824 (Breyer, J., dissenting).
Given the political character of redistricting, the pervading question relating to
partisan considerations, with which courts have had great difficulty, is “how much is too
much?” Id. at 298, 124 S. Ct. at 1788 (quoting id. at 344, 124 S. Ct. at 1815 (Souter, J.,
dissenting)); accord id. at 313, 124 S. Ct. at 1796 (Kennedy, J., concurring)
(commenting on the search for “suitable standards with which to measure the burden a
gerrymander imposes on representational rights”). Rather than engaging this question
in these conventional terms, the majority proceeds to overlay factors delineated by the
Pennsylvania Constitution in relation to state-level reapportionment upon congressional
redistricting.

See Majority Opinion, slip op. at 119-124 (prioritizing the factors

delineated in Article II, Section 16 of the Pennsylvania Constitution).
considerations

are

not

constitutional

commands

applicable

to

Since these
congressional

redistricting, the majority’s approach amounts to a non-textual, judicial imposition of a
prophylactic rule.
In this regard, it is significant that the majority’s new rule is overprotective, in that
it guards not only against intentional discrimination, but also against legislative
prioritization of any factor or factors other than those delineated in Article II, Section 16,
including legitimate ones. See generally Duckworth v. Eagan, 492 U.S. 195, 209, 109
S. Ct. 2875, 2883 (1989) (O'Connor, J., concurring) (explaining that prophylactic rules
“overprotect[]” the value at stake). Significantly, such additional factors include other
traditional districting criteria appropriate to political consideration -- such as the
preservation of communities of interest, avoidance of pitting incumbents against each

[J-1-2018] - 4

other, and maintenance of the core of prior district lines. See League of Women Voters,
___ Pa. at ___, ___ A.3d at ___, 2018 WL 496907, *1 (Saylor, C.J., dissenting) (citing
Evenwel v. Abbott, ___ U.S. ___, ___, 136 S. Ct. 1120, 1124 (2016), Karcher v.
Daggett, 462 U.S. 725, 740, 103 S. Ct. 2653, 2663 (1983), and Holt v. 2011 Legislative
Reapportionment Comm’n, 620 Pa. 373, 422-23, 67 A.3d 1211, 1241 (2013)).3
I do not dispute that prophylactic rules may be legitimate in certain contexts. But
they are, by their nature, vulnerable to claims of illegitimacy. See, e.g., Dickerson v.
United States, 530 U.S. 428, 465, 120 S. Ct. 2326, 2348 (2000) (Scalia, J., dissenting)
(depicting a prophylactic rule imposed by the Supreme Court of the United States as an
3

I am in no way suggesting that the factors prioritized by the majority are not traditional
districting criteria or that they lack relevance to the claims of discrimination. My concern
is with the manner in which the majority rigidifies these factors in the congressional
redistricting context.
In this regard, the majority’s standard would seem to operate more stringently than that
suggested by Petitioners themselves, who urge this Court to set forth a test under
Article I, Section 5 embodying a more conventional equal protection litmus – that is, one
in which a challenger may prevail by demonstrating an intent to discriminate combined
with a discriminatory effect. See Brief for Petitioners at 68 (stating this Court should
adopt a standard whereby the challenger must show “intentional discrimination plus [a
changed] outcome of an actual congressional election”).
It is also not clear whether the requirement devised by the majority, as applied to state
legislative reapportionment, would alter the review in the relevant line of cases. For
example, I suspect that the state congressional redistricting plan approved in this
Court’s Holt decision would fail under the new regime imposed by the majority, since,
there, the Court found that the challengers had not established that a reapportionment
plan encompassing numerous political-subdivision splits violated Article II, Section 16 of
the Pennsylvania Constitution. See Holt, 620 Pa. at 383, 67 A.3d at 1217 (explaining
that the unsuccessful challenge to the 2012 state legislative reapportionment plan was
brought by voters “who live in the Commonwealth’s wards, municipalities, and counties
the [2012 Final Plan] split, often multiple times, to form Senate and House of
Representatives Districts”).
This circumstance appears particularly troublesome
because, although the state charter speaks directly to the constraints for state
legislative districts, it does not mention congressional districts at all.
[J-1-2018] - 5

example of “judicial overreaching”).

The consideration of whether this sort of rule

should be imposed by the judiciary upon a process committed by the federal
Constitution to another branch of government seems to me to require particular caution
and restraint.

Accord Vieth, 541 U.S. at 301, 124 S. Ct. at 1789 (discussing the

drawbacks of “insertion of the judiciary into districting,” including “the delay and
uncertainty [it] brings to the political process and the partisan enmity it brings upon the
courts”); id. at 291, 124 S. Ct. at 1784 (alluding to the interests in “meaningfully
constrain[ing] the discretion of the courts, and to win public acceptance for the courts’
intrusion into a process that is the very foundation of democratic decisionmaking”).
Quite clearly, the character of redistricting, and concomitant separation-ofpowers concerns, warrant special caution on the part of the judiciary in considering
regulation and intervention. See generally Colo. Gen. Assembly v. Salazar, 541 U.S.
1093, 1095, 124 S. Ct. 2228, 2229 (2004) (Rehnquist, C.J., dissenting from denial of
certiorari) (observing, in the context of a state supreme court’s broad insertion of the
judiciary into the redistricting process, that the constitutional “words, ‘shall be prescribed
in each State by the Legislature thereof’ operate as a limitation on the State” (emphasis
in original)). Indeed, as Justice Kennedy of the Supreme Court of the United States has
opined: “A decision ordering the correction of all election district lines drawn for partisan
reasons would commit federal and state courts to unprecedented intervention in the
American political process[,]” yielding “substantial intrusion into the Nation’s political
life.” Vieth, 541 U.S. at 306, 124 S. Ct. at 1792-93 (Kennedy, J., concurring).4

4

Notably, this Court has previously recognized the more limited significance of the
Article II, Section 16 factors relative to congressional redistricting. See Erfer v.
Commonwealth, 568 Pa. 128, 142 n.4, 794 A.2d 325, 334 n.4 (2002).

[J-1-2018] - 6

From my point of view, the majority opinion fails to sufficiently account for the
fundamental character of redistricting, its allocation under the United States Constitution
to the political branch, and the many drawbacks of constitutionalizing a non-textual
judicial rule. For my own part, I would abide by the Court’s previous determination, in
the redistricting setting, that the Free and Equal Elections Clause provides no greater
protection than the state charter’s Equal Protection Clauses, which have been deemed
coterminous with the protection provided by the United States Constitution. See Erfer v.
Commonwealth, 568 Pa. 128, 138-39, 794 A.2d 325, 332 (2002).

I find that the

majority’s focus on a limited range of traditional districting factors allocates too much
discretion to the judiciary to discern violations in the absence of proof of intentional
discrimination.

Instead, I believe that, under the state and federal charters, the

discretion belongs to the Legislature, which should be accorded appropriate deference
and comity, as reflected in the majority’s initial articulation of the presumption of
constitutionality and the heavy burden borne by challengers. See Majority Opinion, slip
op. at 96.
As I said in my previous dissenting statement, I appreciate that the
recommended factual findings of Judge Brobson of the Commonwealth Court suggest
that the Court may be faced with a scenario involving extreme partisan gerrymandering.
Were the present process an ordinary deliberative one, I would proceed to sift through
the array of potential standards to determine if there was one which I could conclude
would be judicially manageable. See generally Vieth, 541 U.S. at 292, 124 S. Ct. at
1784 (observing that, among the expressions of the four dissenting Justices in Vieth,
three different standards had emerged). In my judgment, however, the acceptance of
Petitioners’ entreaty to proceed with extreme exigency presents too great of an

[J-1-2018] - 7

impingement on the deliberative process to allow for a considered judgment on my part
in this complex and politically-charged area of the law.
Finally, as to the remedy, I disapprove of the imposition of a judicially-drawn map
for the above reasons.

Furthermore, as Justice Baer discusses at length, the per

curiam Order inviting the Legislature to redraw Pennsylvania’s congressional districts
provided very little time and guidance in the enterprise. See Concurring and Dissenting
Opinion, slip op. at 3, 8-11 (Baer, J.). Although I do not dispute that judicial intervention
may possibly be appropriate – where a constitutional violation is established based on
the application of clear standards pertaining to intentional discrimination and dilution of
voting power, and the Legislature has been adequately apprised of what is being
required of it and afforded sufficient time to comply – regrettably, I submit that this is
simply not what has happened here.

Justice Mundy joins this dissenting opinion.

[J-1-2018] - 8

EXHIBIT H

[J-1-2018] [MO: Todd, J.]
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,

:
:
:
:
:
:
:
:
:
:
:
:
:
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
:

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

THE PENNSYLVANIA DEPARTMENT OF
STATE,
Respondents

:
:
:
:

DISSENTING OPINION

JUSTICE MUNDY
I respectfully dissent.

FILED: February 7, 2018
Today the Majority announces that the Pennsylvania

Congressional Redistricting Act of 2011 clearly, plainly and palpably violates the
Pennsylvania Constitution on the basis of the Free and Equal Elections Clause. See
generally PA. CONST. art. I, § 5. The claim here is not that voters were unable to cast
their vote, but rather that the power of the individual voters was diluted, thus preventing
them from electing candidates of their choice. The Majority concedes, “[n]either Article
1, Section 5, nor any other provision of our Constitution, articulates explicit standards
which are to be used in the creation of congressional districts.” Majority Op. at 119.
Nevertheless, the Majority holds that “certain neutral criteria” are to be utilized in
drawing congressional districts in this Commonwealth. Id.
In Erfer v. Commonwealth, 794 A.2d 325 (Pa. 2002), a partisan gerrymandering
case, this Court rejected the “[p]etitioners’ claim that the Pennsylvania Constitution’s
free and equal elections clause provides further protection to the right to vote than does
the Equal Protection Clause.” Id. at 332. The Court further noted that the petitioners
had failed to persuade us “why we should, at this juncture, interpret our constitution in
such a fashion that the right to vote is more expansive than the guarantee found in the
federal constitution.” Id. Despite the fact that Erfer established the Free and Equal
Elections Clause did not provide any heightened protections to Pennsylvania voters, the
Majority fails to provide legal justification for its disapproval of Erfer, other than citing to

[J-1-2018] [MO: Todd, J.] - 2

Shankey v. Staisey, 257 A.2d 897 (Pa. 1969), which pre-dates Erfer by 33 years. In my
view, stare decisis principles require us to give Erfer full effect.
Recognizing that the Pennsylvania Constitution does not articulate explicit
standards to be used in the creation of congressional districts, the Majority fashions a
three part test: “(1) the population of such districts must be equal, to the extent possible;
(2) the district that is created must be comprised of compact and contiguous
geographical territory, and (3) the district respects the boundaries of existing political
subdivisions contained therein, such that the district divides as few of those subdivisions
as possible.” Majority Op. at 120-121. These vague judicially-created ”neutral criteria”
are now the guideposts against which all future congressional redistricting maps will be
evaluated, with this Court as the final arbiter of what constitutes too partisan an
influence. Id. at 123.
In this regard, the Majority acknowledges that these “neutral criteria” only
establish a constitutional floor. Majority Op. at 123. However, the Majority admits that it
is possible for the General Assembly to draw a map that fully complies with the
Majority’s “neutral criteria” but still “operate[s] to unfairly dilute the power of a particular
group’s vote for a congressional representative.”

Id. at 124.

This undermines the

conclusion that there is a clear, plain, and palpable constitutional violation in this case.
As I explained in my January 22, 2018 Dissenting Statement, I also have grave
concerns about the Majority’s remedy.

I agree with the Majority that we have the

authority to direct the legislative and executive branches of our government to draw new
maps to remedy any violation of law. However, I am troubled by the Majority’s decision
to strike down the 2011 congressional map on the eve of the 2018 midterm election.
Particularly its disregard for precedent which supports deferring redistricting until after
the 2018 election. See generally Butcher v. Bloom, 203 A.2d 556, 568 (Pa. 1964). I

[J-1-2018] [MO: Todd, J.] - 3

further share the concerns expressed by the dissenting opinion of Chief Justice Saylor
and the dissenting portion of the concurring and dissenting opinion of Justice Baer that
this is a political process the General Assembly should be afforded the full opportunity
and adequate time to address. I write further only to address the remedy suggested by
the Majority of bestowing the task of drawing a new Congressional map onto itself in the
face of a clear legislative alternative.1
The Majority states it fully supports the “preferred path of legislative and
executive action,” and concedes “that the primary responsibility and authority for
drawing federal congressional legislative districts rests squarely with the state
legislature.” Majority Op. at 132. Notwithstanding this, the Majority declares its remedy
“was well within our judicial authority, and supported by not only our Constitution and
statutes . . . but by Commonwealth and federal precedent, as well as similar remedies
provided by the high courts of other states acting when their sister branches fail to
remedy an unconstitutional plan.” Id. at 133.
The Majority cites Butcher as support for its remedy, but omits that the Court in
Butcher granted the General Assembly 11 months to draft a new map before
intervening, yet it nevertheless concludes its remedy is “entirely consistent with . . .
Butcher.” Id. This Court has always had the pragmatic option to utilize the current
congressional maps for the 2018 election, while allowing the General Assembly the
appropriate amount of time to redraw our legislative districts. Further, as I discuss
below, the magnitude and breadth of the Majority’s remedy is inconsistent with the
restraints imposed by federal law.

1

The Majority does not say whether any Court-created map remains in effect just
through the 2018 elections, also through 2020, and any special elections that may arise
in between, until after the 2020 census, or some other point in time.

[J-1-2018] [MO: Todd, J.] - 4

The Elections Clause of the Federal Constitution states that “[t]he Times, Places
and Manner of holding Elections for Senators and Representatives, shall be prescribed
in each State by the Legislature thereof; but the Congress may at any time by Law
make or alter such Regulations, except as to the Places of chusing Senators.” 2 U.S.
CONST. art I, § 4, cl. 1 (emphasis added). The Elections Clause at its core, grants the
authority to draw a state’s congressional districts to the state legislatures, Congress, or
an independent redistricting commission.3 Ariz. State Legislature v. Ariz. Indep. Redist.
Comm’n, 135 S. Ct. 2652, 2667-68 (2015). As the Supreme Court of the United States
recognized, “redistricting is a legislative function, to be performed in accordance with
2

The Supreme Court has described the Elections Clause as broad in scope, but has
also noted it is a specific grant of power to the States directly. Cook v. Gralike, 531 U.S.
510, 523 (2001). The power of the States to regulate federal elections does not arise as
a power “reserved” to the States under the Tenth Amendment. Id.; see also, e.g., U.S.
CONST. amend. X. In other words, “the States may regulate the incidents of such
elections . . . only within the exclusive delegation of power under the Elections Clause.”
Cook, 531 U.S. at 523.
In discussing “state rights” and “federalism,” the Majority appears to operate on the
assumption that a state legislature’s redistricting authority over federal elections is
indeed such a Tenth Amendment power. Majority Op. at 137 n.79. However, other
than the Elections Clause, “[n]o other constitutional provision gives the States authority
over congressional elections, and no such authority could be reserved under the Tenth
Amendment.” Cook, 531 U.S. at 522-23. The Elections Clause is both an express
grant of, and a limitation on, the power of state governments in federal elections,
including the judiciary, and as I discuss infra, the cases cited by the Majority are not
“concrete” and do not form “a bedrock foundation.” Majority Op. at 134, 137. This is not
reading the Elections Clause “in a vacuum.” Id. at 137 n.79.
3

The Majority misconstrues my view of the Elections Clause. See Majority Op. at 137
n.79. If this Court concluded that a congressional map was unconstitutional, and if the
General Assembly was given sufficient time to act (which is not the case here) and it
fails to act, a circumstance may arise where this Court could draw a map on a
temporary remedial basis pending further state or federal legislative action. But it is
quite another matter for this Court to put the General Assembly on a three-week
timeline without articulating the complete criteria necessary to be constitutionally
compliant.

[J-1-2018] [MO: Todd, J.] - 5

the State's prescriptions for lawmaking, which may include the referendum and the
Governor's veto.” Id. at 2668. It is a truism that this Court possesses neither legislative
function, nor authority. While this Court is certainly the final arbiter of the meaning of
the Pennsylvania Constitution, it may not remedy any violations of our state charter, in a
manner, that the Federal Constitution prohibits. After all, federal law is supreme. U.S.
CONST. art. VI, cl. 2.
The Majority points to certain cases that in its view “make concrete the state
judiciary’s ability to formulate a redistricting plan, when necessary.” Majority Op. at 134.
At the outset, on this point, we can set aside Butcher v. Bloom, 216 A.2d 457 (Pa.
1966), which pertains to the state legislative districts of the General Assembly. Butcher,
216 A.2d at 457-58. The Elections Clause does not itself circumscribe this Court’s
authority in drawing a state legislative map, as the Elections Clause only refers to “[t]he
Times, Places and Manner of holding Elections for Senators and Representatives[.]”
U.S. CONST. art I, § 4, cl. 1; see also Clingman v. Beaver, 544 U.S. 581, 586 (2005)
(stating, that the power granted to the States under the Elections Clause “is matched by
state control over the election process for state offices.”).
Turning to the cases of the Supreme Court of the United States cited by the
Majority, none of them support the remedy contemplated here. In Scott v. Germano,
381 U.S. 407 (1965), the Supreme Court issued an unsigned per curiam opinion
pertaining to apportionment among the Illinois Senate and the Illinois House of
Representatives, which is outside the purview of the Elections Clause.4 Scott, 381 U.S.
at 408.

4

Indeed, the cases cited in Scott as examples of state judicial intervention only pertain
to state legislative districts. See Scott, 381 U.S. at 409 (collecting cases).

[J-1-2018] [MO: Todd, J.] - 6

Nor did the Court contemplate the Elections Clause in Growe v. Emison, 507
U.S. 25 (1993). In Growe, the Court, in an opinion authored by Justice Scalia, only
considered the question of Pullman abstention.5 Briefly, there was dueling federal and
state litigation about Minnesota’s state and federal legislative districts. Growe, 507 U.S.
at 27-28. The Court held the federal district court should have deferred any judicial
intervention until the Minnesota courts had fully resolved its case. The Elections Clause
was not an issue in Growe, the Court merely observed what the Minnesota judiciary had
done, and it did not hold it to be constitutionally valid. 6 The Court’s opinion in Growe
sheds no light on whether a state court may take on the task of drawing a federal
congressional map in the first instance.7
The Court points out that in Wise v. Lipscomb, 437 U.S. 535 (1978), the
Supreme Court stated, “[l]egislative bodies should not leave their reapportionment tasks
to the federal courts; but when those with legislative responsibilities do not respond, or
the imminence of a state election makes it impractical for them to do so, it becomes the
‘unwelcome obligation,’ . . . of the federal court to devise and impose a reapportionment

5

Generally, under Pullman abstention, named for R.R. Comm’n of Tex. v. Pullman Co.,
312 U.S. 496 (1941), a federal court is required to defer to pending state court litigation
“when a constitutional issue in the federal action will be mooted or presented in a
different posture following conclusion of the state-court case.” Growe, 507 U.S. at 32.
6

Indeed, the Court explicitly stated that after the Supreme Court of Minnesota adopted
its own redistricting plan, the federal district court would then be permitted to resolve
any and all claims regarding the state court’s plan. Growe, 507 U.S. at 36.
7

Eleven years later, Justice Scalia dissented from the Court denying certiorari in Colo.
Gen. Assembly v. Salazar, 541 U.S. 1903 (2004), which presented this very question of
whether the Elections Clause permits congressional maps drawn by state courts. While
I recognize such dissents are of limited value, my point is only that it would seem odd
for Justice Scalia to affirmatively wish for the Court to decide a constitutional question
that he himself had supposedly just decided 11 years prior.

[J-1-2018] [MO: Todd, J.] - 7

plan pending later legislative action.” Wise, 437 U.S. at 540; see also Majority Op. at
134. The Majority’s reliance on this sentence is misplaced for two reasons. First, like
the other cases, Wise pertained to a Texas local districting scheme for the Dallas City
Council, which is outside the Elections Clause’s sphere of concern. Id. at 537-38; see
also U.S. CONST. art I, § 4, cl. 1.
More importantly, Wise arose out of a federal court action.8 As noted above, by
its very text, the Elections Clause leaves the task of apportionment to state legislatures.
However, the Clause also explicitly contemplates that Congress may override state
legislatures as it wishes in this area. See Ariz. State Legislature, 135 S. Ct. at 2670
(stating, “[t]here can be no dispute that Congress itself may draw a State's
congressional-district boundaries.”); accord Vieth v. Jubelirer, 541 U.S. 267, 275 (2004)
(plurality). Of course, that same Congress is empowered to shape the jurisdiction of the
federal judiciary, with certain exceptions not relevant here. See generally U.S. CONST.
art. III, § 1. It is therefore unsurprising that Congress may empower the federal judiciary
to entertain civil suits and grant relief in a manner that overrides the maps drawn by
state legislatures, where Congress may do the same directly through legislation.
Indeed, the Court has expressly observed the Voting Rights Act of 1965 contemplates
such relief. See Branch v. Smith, 538 U.S. 254, 268 (2003).9
8

In Agre v. Wolf, ___ F. Supp. 3d ___, 2018 WL 351603 (E.D. Pa. Jan. 10, 2018), a
federal court action was filed in the Eastern District of Pennsylvania, challenging the
same congressional map that is before us in this case. On January 10, 2018, a threejudge district court entered judgment in favor of the state legislative and executive
named defendants. There is an appeal currently pending.
9

Branch, also authored by Justice Scalia, dealt with a federal court-authored
congressional map for Mississippi’s districts following the 2000 census. The Court
observed that Congress enacted 2 U.S.C. § 2c to require single-member congressional
districts, the boundaries of which “shall be established by law.” 2 U.S.C. § 2c. Branch
observed that this express congressional authorization, also authorized state and
federal courts to enforce its mandate. Branch, 538 U.S. at 272. Interestingly, Branch
(continued…)
[J-1-2018] [MO: Todd, J.] - 8

For the foregoing reasons, I respectfully dissent.

(…continued)
also declined to address the district court’s separate conclusion that a state-court-drawn
map was unconstitutional under the Elections Clause. Id. at 265. In any event, there is
no alleged violation of Section 2c in this case, nor is there any other congressional
statute addressing partisan considerations in congressional districting.

[J-1-2018] [MO: Todd, J.] - 9

EXHIBIT I

[J-1-2018] [MO:Todd]
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
:
:
:
:
:
:
:
:
:
:
:
:
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 OPINION
JUSTICE BAER

FILED: February 7, 2018

I respectfully offer this response to the Court’s opinion in support of its order of
January 22, 2018 (January 22nd Order). I continue to join the Majority’s conclusion that
the Pennsylvania Congressional Redistricting Act of 2011 (2011 Plan) violates the
Pennsylvania Constitution, as originally set forth in the first sentence of Paragraph First
of the Court’s January 22nd Order.

Moreover, I concur with the Majority’s erudite

explication of Article I, Section 5 of the Pennsylvania Constitution (the Free and Equal
Election Clause), PA. CONST. art. I, § 5,1 and the Court’s ultimate conclusion that the
2011 Plan violates the rights protected by that provision.
For the reasons explained below and similar to concerns expressed by Chief
Justice Saylor and Justice Mundy, I diverge from the Majority, which I read to impose
court-designated districting criteria on the Legislature. I, nevertheless, conclude that
Pennsylvania’s Free and Equal Election Clause protects Pennsylvanians’ right to vote
from dilution resulting from extreme partisan gerrymandering. As elucidated infra, I
would hold that extreme partisan gerrymandering occurs when, in the creation of a
districting plan, partisan considerations predominate over all other valid districting

1

The Free and Equal Election Clause is set forth in full infra at 5.

[J-1-2018] [MO: Todd] - 2

criteria relevant to the voting community and result in the dilution of a particular group’s
vote.2
In conformity with the other dissenting justices, I additionally dissent from the
portions of the Majority Opinion supporting the remainder of the January 22nd Order,
which enjoin the use of the 2011 Plan for the 2018 election cycle and set forth a
procedure for implementing a new map for the May 2018 primary. 3 In my view, as
explained below, the Court’s remedy threatens the separation of powers dictated by
Article I, Section 4 of the United States Constitution4 by failing to allow our sister
branches sufficient time to legislate a new congressional districting map, potentially
impinges upon the due process rights of the parties at bar as well as other interested
parties, and foments unnecessary confusion in the current election cycle.5

2

Petitioners’ argument on the Free and Equal Elections Clause appears to be tethered
to their claim that the 2011 Plan violates the equal protection guarantees of the
Pennsylvania Constitution provided in Article I, Sections 1 and 26. That being said, it is
clear that Petitioners allege a violation of the Free and Equal Elections Clause, and
thus, such claim is before the Court. Accordingly, I offer this opinion in response to the
Majority’s analysis of that clause.
3

As I would not apply the finding of unconstitutionality to the May 2018 primary, I
concur in Paragraph Sixth of the Court’s January 22 nd Order allowing the March 2018
special election in Pennsylvania’s 18th Congressional District to be held under the 2011
Plan.
4

Article I, Section 4 of the United States Constitution is set forth in relevant part infra at
4.
5

To be precise, I concur in the Majority’s comprehensive recitation of the background of
this case in Part I, the description of this action in Part II, Part III’s summary of the
thorough proceedings in the Commonwealth Court including the factual findings and
conclusions of law of Judge Brobson, and the presentation of the parties’ and amici’s
arguments in Part IV. As said, I concur with the Majority’s analysis of the Free and
Equal Election Clause in Part V. A. I dissent, however, from Part V. B, which I view as
requiring the Legislature to utilize specified districting criteria in drafting a redistricting
(…continued)
[J-1-2018] [MO: Todd] - 3

First, I address my concerns with the “measurement of compliance” discussion
set forth in Part V. B, which I interpret as dictating criteria for the Legislature to utilize in
redistricting.

Article I, Section 4 of the United States Constitution unambiguously

provides state legislatures with the authority and responsibility for regulating the election
of Senators and Representatives to the United States Congress, subject to any
enactment by Congress. Specifically, Article I, Section 4 provides:
The Times, Places and Manner of holding Elections for
Senators and Representatives, shall be prescribed in each
State by the Legislature thereof; but the Congress may at
any time by Law make or alter such Regulations, except as
to the Places of [choosing] Senators.
U.S. CONST. art. I, § 4. Recently, the United States Supreme Court concluded that the
“legislature” designated in Section 4 includes not only the state legislative assembly but
also legislative acts of the people through referenda to amend their state constitutions,
such as provisions for independent commissions to draw congressional election
districts.
Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 135 S. Ct. 2652,
2659 (2015).

Section 4’s use of the term “legislature,” however, clearly does not

encompass the judicial branch, and thus, courts lack the authority to prescribe the
“times, places, and manner of holding” congressional elections.
As reiterated by the Majority Opinion, this Court’s January 22 nd Order indicated
the following:
[T]o comply with this Order, any congressional districting
plan shall consist of: congressional districts composed of
compact and contiguous territory; as nearly equal in
(continued…)
map, and concur only in the holding of Part V. C that the 2011 Plan is unconstitutional.
Finally, I dissent to the remedy provided in Part VI.

[J-1-2018] [MO: Todd] - 4

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.
January 22nd Order, ¶ “Fourth.” The Majority ably traces the history of the adoption of
nearly identical criteria by the framers of the Pennsylvania Constitution for purposes of
state senatorial and representative districts.

PA. CONST. art. II, § 16.

Indeed, the

language was also incorporated in regard to municipal election districts. PA. CONST. art.
IX, §11.
In contrast to the state legislative and municipal districts, the Constitution is silent
in regard to the criteria to be applied by the Legislature in establishing congressional
districts for Representatives to the United States Congress. The designated criteria are
also notably absent from the Free and Equal Election Clause, which with elegant
simplicity, provides as follows:
Elections shall be free and equal; and no power, civil or
military, shall at any time interfere to prevent the free
exercise of the right of suffrage.
PA. CONST. art. I, § 5. This language obviously does not address the size or shape of
districts. Moreover, there is nothing inherent in a compact or contiguous district that
insures a free and equal election, as is evidenced by claims of unconstitutional
gerrymandering raised in challenges to redistricting plans of other states which employ
maps created in compliance with the traditional districting criteria of compact and
contiguous territory, equality of population, and minimization of municipal line division.
See, e.g., Whitford v. Gill, 218 F.Supp. 3d 837 (W.D. Wis. 2016).
Accordingly, I am unwilling to engraft into the Pennsylvania Constitution criteria
for the drawing of congressional districts when the framers chose not to include such
provisions despite unquestionably being aware of both the General Assembly’s
responsibility for congressional redistricting and the dangers of gerrymandering. It is

[J-1-2018] [MO: Todd] - 5

not this Court’s role to instruct the Legislature as to the “manner of holding elections,”
including the relative weight of districting criteria.
I nonetheless agree with the Majority’s holding that the Free and Equal Election
Clause protects against the dilution of votes because “a diluted vote is not an equal
vote.” Id. at 118. Moreover, I adopt the Majority’s explanation of how extreme partisan
gerrymandering “dilutes the votes of those who in prior elections voted for the party not
in power to give the party in power a lasting electoral advantage . . . [b]y placing voters
preferring one party’s candidates in districts where their votes are wasted on candidates
likely to lose (cracking), or by placing such voters in districts where their votes are cast
for candidates destined to win (packing).” Maj. Op. at 118. Accordingly, I concur with
the Majority’s holding that “[a]n election corrupted by extensive, sophisticated
gerrymandering and partisan dilution of votes is not ‘free and equal.” Maj. Op. at 130.
Therefore, I conclude that the Free and Equal Clause is violated by the use of extreme
partisan gerrymandering by the Legislature and Governor because it constitutes
unconstitutional interference by a civil power “to prevent the free exercise of the right to
suffrage” through vote dilution. PA. CONST. art. I, § 5. 6
To evaluate a challenge to a congressional districting plan, I would hold that a
challenger has the burden to prove that the plan clearly, plainly, and palpably violates
the Free and Equal Election Clause by demonstrating that the plan resulted from
extreme partisan gerrymandering.

Stilp v. Commonwealth, 905 A.2d 918, 939 (Pa.

2006) (holding that a “legislative enactment will not be deemed unconstitutional unless it
clearly, palpably, and plainly violates the Constitution”). I propose that extreme partisan
gerrymandering can, in turn, be proven by evidence that partisan considerations

6

I agree with the Majority that Pennsylvania’s congressional districts must also meet the
requirements set forth by the federal Constitution and related statutory enactments.

[J-1-2018] [MO: Todd] - 6

predominated over all other valid districting criteria relevant to the voting community and
resulted in the dilution of a particular group’s vote.
I further recognize that a fully developed record establishing the absence of
traditional districting criteria is indicative of extreme partisan gerrymandering for
purposes of vote dilution. As explained by the Majority, because traditional districting
criteria are “fundamentally impartial in nature, their utilization reduces the likelihood of
the creation of congressional districts which confer on any voter an unequal advantage
by giving his or her vote greater weight in the selection of a congressional
representative as prohibited by Article I, Section 5.” Maj. Op. at 122. Moreover, I agree
that the use of traditional districting criteria “substantially reduces the risk that a voter in
a particular congressional district will unfairly suffer the dilution of the power of his or her
vote.” Id.
I do not view, however, the utilization of traditional districting criteria as
dispositive in every redistricting case. A map may fail to satisfy all of the traditional
criteria and yet pass constitutional muster under the Free and Equal Election Clause,
such as where a district is less compact due to a dispersed community of interest.
Similarly, traditional districting criteria could be satisfied in a particular case and yet a
totality of the evidence could still demonstrate that partisan considerations
predominated in the drawing of the map as a result of extreme partisan gerrymandering.
As occurred here, a petitioner may establish that partisan considerations
predominated in the drawing of the map by, inter alia, introducing expert analysis and
testimony that the adopted map is a statistical outlier in contrast with other maps drawn
utilizing traditional districting criteria and that the adopted map was not the product of
other legitimate districting considerations such as the need to protect communities of
interest or promote other interests relevant to the voting community. The extensive

[J-1-2018] [MO: Todd] - 7

statistical evidence outlined in detail by Judge Brobson in the Commonwealth Court and
recounted in the Majority Opinion demonstrates that the 2011 Plan resulted from
extreme partisan gerrymandering and, in fact, establishes that this map is one of the
most gerrymandered in the nation. On this basis, Petitioners in the case at bar clearly,
plainly and palpably demonstrated that partisan considerations predominated over other
relevant districting criteria in the drawing of the 2011 Plan and resulted in extreme
partisan gerrymandering in violation of Pennsylvania’s Free and Equal Election Clause.
As I join the Court’s conclusion that the 2011 Plan violates the Pennsylvania
Constitution’s Free and Equal Election Clause, I turn next to the remedy provided by the
Majority in the January 22nd Order, as explained in Part VI of the Majority Opinion. For
the reasons set forth in my concurring and dissenting statement to the January 22 nd
Order, I object to the development of a new redistricting plan for the 2018 election cycle.
I continue to suggest respectfully that the Court reconsider its decision given the
substantial uncertainty, if not outright chaos, currently unfolding in this Commonwealth
regarding the impending elections, in addition to the likely further delays that will result
from the continuing litigation before this Court and, potentially, the United States
Supreme Court, as well as from the map-drawing process and the litigation that process
will inevitably engender.
The Majority correctly observes that “it is beyond peradventure that it is the
legislature, in the first instance, that is primarily charged with the task of
reapportionment.” Maj. Op. at 136. Unfortunately, the Legislature does not have a fair
opportunity to act “in the first instance” where it has less than three weeks to develop a
plan. While it is true that the Legislature technically enacted the 2011 Plan in two
weeks, it is naïve to think that the legislators created the map in that short period of
time, as opposed to developing and negotiating details of the map over prior months. In

[J-1-2018] [MO: Todd] - 8

fact, the Majority observes that the Legislature began hearings on the districting map as
early as May of 2011 before the December passage of the 2011 Plan, suggesting that
the development of the map spanned at least eight months. Maj. Op. at 6.
Rather than providing the General Assembly a reasonable opportunity to create a
map and pass legislation to adopt it, the Majority has taken steps in preparation for the
“possible eventuality” that the Legislature cannot act in this compressed time frame.
Order, 1/26/18. Over the objection set forth in Justice Mundy’s dissent, the Majority
posits that state courts have the authority under United States Supreme Court
precedent “to devise and impose a reapportionment plan pending later legislative
action” when the legislative bodies fail to act or when “the imminence of a state election
makes it impractical for [the legislature] to do so.” Maj. Op. at 134 (internal citations
omitted). After reviewing precedent from our sister states and the federal courts, the
Majority opines that the precedent serves “as a bedrock foundation on which stands the
authority of the state judiciary to formulate a valid redistricting plan when necessary.”
Id. at 137.
Respectfully, the circumstances at present do not make it “necessary” for this
Court to formulate a redistricting plan for the impending 2018 elections. Instead, the
unambiguous grant of redistricting authority to the state legislature under Article I,
Section 4 of the Federal Constitution mandates judicial restraint to allow a legislature a
reasonable period of time, which should be measured in months rather than weeks, to
redistrict following a determination of unconstitutionality by a court, which preferably
would provide the legislative bodies with a clear understanding of the nature of the
original plan’s unconstitutionality.
This case does not present a situation where the election cannot go forward
under the current map, such as presumably would occur if the plan provided for more

[J-1-2018] [MO: Todd] - 9

representatives than could be seated in Congress. Indeed, the current map has been
utilized for three election cycles, and the Majority is allowing it to be employed again in
the upcoming special election for the 18th District. It is, therefore, unnecessary to act
prior to the 2018 elections.
In support of its decision to impose a judicially created map in the event that our
sister branches fail to enact a plan by February 15 th, my colleagues further rely upon
this Court’s decision in Butcher v. Bloom, 216 A.2d 457 (Pa. 1966).

In Butcher,

however, the Court in 1964 had provided the Legislature nearly one year to enact a
valid map. Butcher v. Bloom, 203 A.2d 556, 573 (Pa. 1964). Only after the Legislature
failed to pass a constitutional plan during that year did this Court impose a judiciallychosen map. In contrast, this Court has provided the Legislature three weeks from the
initial order to produce a new map. In my view, this does not constitute a reasonable
time for the Legislature to act.7
I also have grave concerns regarding the Court’s procedure for drawing the map
should the Legislature and Governor fail to produce one by the dates set forth in the
January 22nd Order, and as supplemented by the January 26th Order, to which I filed a
concurring and dissenting statement.8

The Majority asserts that it has afforded all

7

Indeed, Professor Nathaniel Persily, the expert this Court engaged in its Order of
January 26th, has observed that “[a] quick plan, however, is not necessarily a good plan.
Indeed, a computer can draw a statewide equipopulous plan by itself in a matter of
hours or even minutes, but it is unlikely to be one a court (or anyone) would want to
adopt.” Nathaniel Persily, When Judges Carve Democracies: A Primer on Court-Drawn
Redistricting Plans, 73 Geo. Wash. L. Rev. 1131, 1147 (2005). A good redistricting plan
takes time and thoughtful consideration by legislators who know the communities
impacted by the plan.
8

Despite my disagreement with the remedy provided, I concur with the Majority’s
clarification that, if the Legislature and the Governor agree to a plan, then this Court’s
“role in this matter concludes, unless and until the constitutionality of the plan is
challenged.” Maj. Op. at 132.

[J-1-2018] [MO: Todd] - 10

parties and Intervenors a “full and fair opportunity to submit proposed remedial plans for
our consideration.” Maj. Op. at 132-33. I do not agree that allowing parties to submit a
map comports with due process absent their ability to respond to alternative plans,
potentially by submitting additional evidence or cross-examining witnesses. Moreover,
the Majority’s remedy lacks any provision for the parties to object following the release
of the Court’s map, which may indeed be necessary to advise the Court of any potential
oversights or infirmities in the map itself.9
Additionally, it is unclear from the Court’s orders whether the Court will “adopt a
plan based on the evidentiary record developed in the Commonwealth Court” as set
forth in the January 22nd Order, Paragraph Third, or whether the Court will be adopting a
map based upon additional evidence submitted by the parties pursuant to the January
26th Order, obtained from the Commonwealth’s public databases, or from sources
extrinsic to the record utilized by Professor Persily, which have not been subjected to
the rigors of evidentiary challenges either for admissibility or accuracy, as tested
through cross-examination. I object to the lack of transparency of this process and urge
the Court to provide the parties and the public constitutionally-mandated due process by
allowing an opportunity to object to any plan that the Court may adopt.
Finally, as noted in my original concurring and dissenting statement to the
January 22nd Order, I have significant concerns that this Court’s unnecessarily
compressed timeframe may result in the “[s]erious disruption of orderly state election
9

In contrast, Professor Persily has previously recommended that an ideal timeframe
would provide for a court to begin drawing a map three months prior to the beginning of
ballot qualification, allowing one month for development of the map and one month for
hearings on the proposed map. Persily, 73 Geo. Wash. L. Rev. at 1147-48. He
additionally observes that a reasonable goal would provide for “releasing the final
version of a plan one month prior to the beginning of the petitioning period” to “give
potential candidates sufficient notice as to the location of their districts and a reasonable
time to decide whether they wish to run.” Id. at 1147 n.88.

[J-1-2018] [MO: Todd] - 11

processes and basic governmental functions.” Butcher, 203 A.2d at 568-69. Indeed, I
fear that candidates will be harmed by the shortened time period and that voters will be
confused as to their district. The litigation and resulting confusion that has ensued since
the release of the January 22nd Order confirm my initial concerns.

[J-1-2018] [MO: Todd] - 12

EXHIBIT J

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

THE PENNSYLVANIA DEPARTMENT OF
STATE,
Respondents

:
:
:
:

OPINION AND ORDER

PER CURIAM

Filed: February 19, 2018

By Order dated January 22, 2018, this Court announced that the Pennsylvania
Congressional Redistricting Act of 2011, 25 P.S. § 3596.101 et seq. (the “2011 Plan”),
clearly, plainly and palpably violates the Pennsylvania Constitution. This adjudication
was based upon the uncontradicted evidentiary record developed in the Commonwealth
Court, wherein the Petitioners established that the 2011 Plan was a partisan
gerrymander and that this gerrymander was extreme and durable. It was designed to
dilute the votes of those who in prior elections voted for the party not in power in order
to give the party in power a lasting electoral advantage. In stark contrast, Article I,
Section 5 of our Constitution 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. On this record, it is clear that the 2011 Plan violates
Article I, Section 5, since a diluted vote is not an equal vote.
Having determined that the 2011 Plan violates our Constitution, the question of
the appropriate remedy remained. This Court was compelled to decide whether to
perpetuate an unconstitutional districting plan, which would result in the unlawful dilution
of our citizens’ votes in the impending election, or to rectify the violation of our
Commonwealth’s Constitution immediately. So stated, our choice was clear. As this
Court has aptly recognized, the fundamental rights guaranteed by our organic charter
“cannot lawfully be infringed, even momentarily.” Pap’s A.M. v. City of Erie, 812 A.2d
591, 607 (Pa. 2002) (internal quotation marks omitted).

[J-1-2018] - 2

In our January 22 Order, 1 this Court directed that, “should the Pennsylvania
General Assembly choose to submit a congressional districting plan that satisfies the
requirements” of that Order, the General Assembly was to submit such a plan to the
Governor on or before February 9, 2018.

If the Governor accepted the General

Assembly’s congressional districting plan, this Court ordered such plan to be submitted
to the Court on or before February 15, 2018. Thus, the General Assembly had a full
eighteen days to submit a plan to the Governor, and the Governor had five days to
consider and approve or disapprove the General Assembly’s plan. 2
This Court recognized that the primary responsibility for drawing congressional
districts rested squarely with the legislature, but we also acknowledged that, in the
eventuality of the General Assembly not submitting a plan to the Governor, or the
Governor not approving the General Assembly’s plan within the time specified, it would

1

Justice Baer filed a concurring and dissenting statement to the Order. Chief Justice
Saylor filed a dissenting statement in which Justice Mundy joined, and Justice Mundy
filed a dissenting statement.

2

In fashioning the remedy and the timeline, this Court took into consideration the
requests of the parties. At oral argument on January 17, 2018, counsel for the
Petitioners stated, “Our request on the remedy is that . . . the map be declared
unconstitutional and that the legislature be given two weeks to come up with another
map, subject obviously to the Governor’s review.” He further stated, “The map can be
done in a day.” “. . . frequently legislatures are given short time frames. . . . Yes, it’s a
serious task, but no, we don’t believe it’s unreasonable.”
Counsel for the Governor stated, “[W]e are recommending that, if the map is in place by
February 20 or before, we can show you that we can run this election, we can run the
congressional portion of the primary and all of the up and down ballot seats by May 15.”
This accords with the attestations by Commissioner of the Bureau of Commissions,
Elections and Legislation, Jonathan Marks, that it would be possible to hold the primary
on May 15, 2018 provided a plan was in place on or before February 20, 2018.
Counsel for Speaker Turzai and Senate President Pro Tempore Scarnati stated, “I think
we would like at least three weeks.” His co-counsel later opined that they “need a
month.”

[J-1-2018] - 3

fall to this Court expeditiously to adopt a plan based upon the evidentiary record
developed in the Commonwealth Court. We also offered the opportunity for parties and
intervenors to submit proposed remedial districting plans to the Court on or before
February 15, 2018. The Court specified that, to comply with the January 22 Order, any
remedial congressional districting plan, whether enacted by the General Assembly and
Governor or submitted by the parties and intervenors, should 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 of January 22, 2018, at Paragraph “Fourth”. Furthermore, the Court advised the
Executive Branch Respondents to anticipate that a remedial congressional districting
plan would be available by February 19, 2018, and they were directed to take all
measures, including adjusting the election calendar if necessary, to ensure that the
May 15, 2018 primary election would take place as scheduled under that remedial
districting plan.
The Court issued a supplemental Order on January 26, 2018, in which the Court
appointed Professor Nathaniel Persily as an advisor to assist the Court in adopting, if
necessary, a remedial congressional redistricting plan. 3 Moreover, in that Order, we
directed the Pennsylvania General Assembly and/or its Legislative Data Processing
Center to submit to the Court data files containing the current boundaries of all
Pennsylvania municipalities and precincts.

In response, counsel for the General

Assembly indicated no such current files existed. 4
3

Justice Baer filed a concurring and dissenting statement. Chief Justice Saylor and
Justice Mundy dissented.

4

Specifically, by letter dated January 31, 2018, counsel for the General Assembly
indicated that such files are not updated or maintained by the General Assembly for the
(continued…)
[J-1-2018] - 4

Thereafter, on February 7, 2018, this Court filed its Opinion in support of the
January 22 Order, setting forth its legal rationale for determining that the 2011 Plan is
violative of our Constitution. 5 In explaining the Court’s rationale, we emphasized that
nothing in the Opinion was intended to conflict with, or in any way alter, the mandate
contained in the January 22 Order.
Neither the General Assembly nor the Governor sought an extension of the dates
set forth in our January 22 Order. The General Assembly failed to pass legislation for
the Governor’s approval, thereby making it impossible for our sister branches to meet
the Court’s deadline. As a result, it has become the judiciary’s duty to fashion an
appropriate remedial districting plan, and this Court has proceeded to prepare such a
plan, a role which our Court has full constitutional authority and responsibility to
assume. 6
(…continued)
years between each decennial Census. Counsel for Speaker Turzai informed the Court
by letter dated January 31, 2018 that Speaker Turzai “[had] no data or documents
responsive to the [Court’s Order].” and that Speaker Turzai “understands that the
General Assembly has submitted a letter addressing the data and documents
requested…” Finally, by letter dated January 31, 2018, counsel for Senator Scarnati
responded that “[i]n light of the unconstitutionality of the Court’s Orders and the Court’s
plain intent to usurp the General Assembly’s constitutionally delegated role of drafting
Pennsylvania’s congressional districting plan, Senator Scarnati will not be turning over
any data identified in the Court’s Orders,” while also footnoting that Senator Scarnati
“does not possess any documents responsive to paragraph “Fourth” of the Court’s
January 26 Order.”
5

In response thereto, Justice Baer filed a concurring and dissenting opinion. Chief
Justice Saylor filed a dissenting opinion, joined by Justice Mundy. Finally, Justice
Mundy filed a dissenting opinion.

6

When the legislature is unable or chooses not to act, it becomes the judiciary's role to
ensure a valid districting scheme. As explained in our Opinion, our Court possesses
broad authority to craft meaningful remedies when required. Pa. Const. art. V, §§ 1, 2,
10; 42 Pa.C.S. § 726 (granting power to “enter a final order or otherwise cause right and
justice to be done”). Thus, the prospect of a judicially-imposed remedial plan was well
within our judicial authority, and is supported by our Constitution and laws.

[J-1-2018] - 5

Pursuant to the January 22 Order, certain parties, the intervenors, and several
amici submitted to the Court proposed remedial districting plans for the Court’s
consideration, all of which were carefully reviewed by the Court. 7

Proceeding

expeditiously, the Court prepared a constitutionally sound plan in accordance with our
announced criteria.
After full deliberation and consideration, the Court hereby adopts this remedial
plan (“Remedial Plan”) 8, as specifically described below, which shall be implemented
forthwith in preparation for the May 15, 2018 primary election. 9 The Remedial Plan is
based upon the record developed in the Commonwealth Court, and it draws heavily
upon the submissions provided by the parties, intervenors, and amici. It is composed of
congressional districts which follow the traditional redistricting criteria of compactness,
contiguity, equality of population, and respect for the integrity of political subdivisions.
The Remedial Plan splits only 13 counties. 10 Of those, four counties are split into three
7

The applications for leave to file amicus briefs, filed by Concerned Citizens for
Democracy, Fair Democracy, Adele Schneider and Stephen Wolf, and the American
Civil Rights Union, are hereby granted. Moreover, we accepted for filing a “Brief in
Opposition to Proposed Remedial Congressional Districting Maps Submitted by
Petitioners, Governor Wolf, Lieutenant Governor Stack, Democratic Caucus of the
Pennsylvania Senate and Democratic Caucus of the Pennsylvania House of
Representatives” filed by Speaker Turzai and Senator Scarnati. Finally, Petitioners’
application for leave to file a reply to that brief is hereby granted.
8

For this process, the Court utilized the 2011 U.S. Census population data, as adjusted
by Pennsylvania, available at http://www.redistricting.state.pa.us/Data.cfm.
9

Although we provide herein a brief description of the statistical measures used to
analyze the Remedial Plan, a full, computer-generated report detailing additional
statistical
information
is
available
on
the
Court’s
website
at
http://www.pacourts.us/news-and-statistics/cases-of-public-interest/league-of-womenvoters-et-al-v-the-commonwealth-of-pennsylvania-et-al-159-mm-2017.
10

An additional county split may appear in some GIS program calculations, but that is
due to the fact that a non-contiguous Chester County census block with zero population
is located inside Delaware County. That census block and its adjoining water is
appropriately placed inside the district that contains Delaware County.

[J-1-2018] - 6