Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, Sept. T., 1966, No. 60, in re redivision of the Township of Penn Hills, Allegheny County, Pennsylvania, into wards.
Louis R. Paulick, for appellant.
Edgar J. Cooke, for appellees.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Watkins, J.
[ 216 Pa. Super. Page 328]
This is an appeal from the decree of the then Court of Quarter Sessions of Allegheny County dismissing exceptions of certain citizens and taxpayers and confirming absolutely the report of the Commission appointed by the Court, In Re: Redivision of the Township of Penn Hills, Allegheny County, Commonwealth of Pennsylvania, into Wards. Appeal to this court followed.
It is admitted that the alignment of wards contained in the plan of the Commission was based upon voter registration and not population. We held in the Lower Merion Twp. Appeal, 215 Pa. Superior Ct. 363, 257 A.2d 264 (1969), at page 366, that: "The Constitutional requirement for reapportionment is, as has always been the case, based upon population and while registration may be an indication of the need, it should not be the sole criterion nor the basis upon which reapportionment is had."
[ 216 Pa. Super. Page 329]
It is, however, important to examine some of the cases in the Federal Courts where the problem has been discussed and met. The Supreme Court of the United States has determined what is now known as the "one man-one vote" standard for redistricting. Reynolds v. Sims, 377 U.S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964). This applies to local government. Avery v. Midland County, 390 U.S. 474, 20 L. Ed. 2d 45, 88 S. Ct. 1114 (1968).
The Supreme Court of the United States has also indicated that the "as nearly as practical" standard cannot be reduced to a fixed mathematical formula. Kirkpatrick v. Preisler, 394 U.S. 526, 22 L. Ed. 2d 519, 89 S. Ct. 1225 (1969). In that case, the plan of redistricting was rejected where the average variation from the ideal population was 1.67% while in Wells v. Rockefeller, 394 U.S. 542, 22 L. Ed. 2d 535, 89 S. Ct. 1234 (1969), the plan rejected had a variation of 6.67%. In the instant case, the claimed variations go as high as 20%.
In Burns v. Richardson, 384 U.S. 73, 93, 96, 16 L. Ed. 2d 376, 391, 393, 86 S. Ct. 1286 (1966), the legislature of Hawaii was reapportioned on the basis of voter registration figures rather than population. It was approved and the court explained in detail the peculiar circumstances that existed in the Hawaii situation, saying at page 93: "In view of these considerations, we hold that the present apportionment satisfies the Equal Protection Clause only because on this record it was found to have produced a distribution of legislators not substantially different from that which would have resulted from the use of a permissible population basis." However, the court continued at page 96, saying: "We are not to be understood as deciding that the validity of the registered voters basis as a measure has been established for all time or circumstances, in Hawaii or elsewhere."
[ 216 Pa. Super. Page 330]
The court seemed to be straining in this case as indicated by what the opinion writer, Mr. Justice Brennan, said at pp. 92, 93 concerning the evil of the use of registration figures for reapportionment: "Use of a registered voter or actual voter basis presents an additional problem. Such a basis depends not only upon criteria such as govern state citizenship, but also upon the extent of political activity of those eligible to register and vote. Each is thus susceptible to improper influences by which those in political power might be able to perpetuate under-representation of groups constitutionally entitled to participate in the electoral process, or perpetuate a 'ghost of prior malapportionment.' Moreover, 'fluctuations in the number of registered voters in a given election may be sudden and substantial, caused by such fortuitous factors as a peculiarly controversial election issue, a particularly popular candidate, or even weather conditions.' Ellis v. Mayor & City Council of ...