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COMMONWEALTH EX REL. SPECTER v. LEVIN (06/05/72)

SUPREME COURT OF PENNSYLVANIA


decided: June 5, 1972.

COMMONWEALTH EX REL. SPECTER, APPELLANT,
v.
LEVIN

Appeals from final reapportionment plan of Pennsylvania Legislative Reapportionment Commission, in cases of Commonwealth ex rel. Arlen Specter v. Levin; appeal of Robert A. Rovner et al.; appeal of Lawrence Sager; appeal of C. V. Afflerback et al.; James H. J. Tate et al. v. Legislative Reapportionment Commission; Elmer Berkebile et al. v. Legislative Reapportionment Commission; Thomas P. McCreesh et al. v. Legislative Reapportionment Commission; Joseph Pavlak et al. v. Legislative Reapportionment Commission; Lawrence H. Curry et al. v. Legislative Reapportionment Commission; Robert Oravetz et al. v. Legislative Reapportionment Commission; Bernard F. Sherer v. Legislative Reapportionment Commission; Fred L. Lebder v. Legislative Reapportionment Commission; appeal of Baldwin Borough; Michael von Moschzisker v. Levin; George O. Piazzi et al. v. Legislative Reapportionment Commission; Robert J. Devers et al. v. Legislative Reapportionment Commission; Joseph T. Doyle et al. v. Legislative Reapportionment Commission; and appeal of J. E. Fleming, Jr.

COUNSEL

Arlen Specter, District Attorney, in propria persona, with him Martin H. Belsky, Assistant District Attorney, for appellant.

Louis W. Fryman, with him William Austin Meehan, Steven J. Hartz, Larry S. Keiser, and Becker, Fryman & Ervais, for appellants.

Lawrence Sager, in propria persona, with him Sager & Sager, for appellant.

George T. Kelton, with him Begley, Carlin, Mandio, Kelton & Popkin, for appellants.

Louis C. Johanson, for appellants.

K. L. Shirk, Jr., with him Shirk, Reist and Buckwalter, for appellants.

John J. McCreesh, Jr., with him McCreesh & McCreesh, for appellants.

Robert W. Valimont, for appellants.

Sheldon W. Farber, for appellants.

John H. Broujos, for appellants.

Thomas R. Ceraso, for appellants.

John R. Luke, for appellant.

Bennett G. Picker, with him W. Bourne Ruthrauff, for appellant.

James V. Senape, Jr., submitted a brief for appellants.

John Philip Diefenderfer, with him Stuckert, Yates & Krewson, for appellants.

William E. Mowatt, with him Joseph T. Doyle, for appellants.

John Fuller, with him Bruce L. Smith, Charles J. Swick, Carroll F. Purdy, and Metzger, Hafer, Keefer, Thomas & Wood, for appellants.

J. Shane Creamer, Attorney General, with him Walter L. Foulke, Executive Deputy Attorney General, for appellees.

Thomas N. O'Neill, Jr., with him Montgomery, McCracken, Walker & Rhoads, for appellees.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Mr. Chief Justice Jones, Mr. Justice Pomeroy and Mr. Justice Manderino dissent. Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Chief Justice Jones. Dissenting Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Jones joins in this dissent. Dissenting Opinion by Mr. Justice Manderino.

Author: Per Curiam; Roberts

[ 448 Pa. Page 4]

And Now, this seventh day of February, 1972, upon consideration of the above appeals, we find that the Final Reapportionment Plan of the Pennsylvania

[ 448 Pa. Page 5]

State Legislative Reapportionment Commission filed on December 29, 1971, is in compliance with the mandates of the Federal and Pennsylvania Constitutions and therefore shall have the force of law. Hence it is ordered that said Plan filed on December 29, 1971, shall be used in the forthcoming Primary and General Elections of 1972 and thereafter shall remain in force and effect until constitutionally altered.

Opinions to follow.

Opinion by Mr. Justice Roberts, June 5, 1972:

On February 7, 1972, after oral argument on 17 of the 18 above-captioned appeals,*fn1 this Court entered an order declaring that the final plan for the reapportionment of the Pennsylvania Senate and House of Representatives filed by the Pennsylvania Legislative Reapportionment Commission was in compliance with the requirements of the United States Constitution and the Constitution of this Commonwealth.*fn2 In that order we indicated that opinions would follow. This opinion is in response to that order.

I

The reapportionment plan that is attacked by appellants is the first work product of the Pennsylvania Legislative Reapportionment Commission established by an amendment to the Pennsylvania Constitution in 1968.*fn3 Prior to 1968 reapportionment of the Pennsylvania

[ 448 Pa. Page 6]

Legislature was effected by act of the General Assembly.*fn4

The Legislative Reapportionment Commission consists of five members. Four of the members are the majority and minority leaders of both the Senate and the House of Representatives, or deputies appointed by each of them.*fn5 The fifth member is the chairman of the Commission.*fn6 The chairman is selected either by the four other members of the Commission, or, if those four members fail to select a chairman within the time prescribed, the chairman is selected by this Court.*fn7 The Commission acts by a majority vote of its membership.*fn8

The advantages of assigning the responsibility for reapportioning the Legislature to such a commission are quite obvious, and several other states have recently adopted or considered proposals for similar commissions.*fn9 The equal representation on the Commission provided to the majority and minority members of each house precludes the reapportionment process from being unfairly dominated by the party in power at the moment of apportionment. In addition, the provision for a chairman who can act as a "tie-breaker" eliminates the possibility of a legislative deadlock on reapportionment such as the one that occurred in the Legislature

[ 448 Pa. Page 7]

    of this Commonwealth in 1965 and compelled this Court to undertake the task of reapportionment.*fn10 At the same time the Legislature's expertise in reapportionment matters is essentially retained.*fn11

II

In its epic decision on state legislative apportionment in Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362 (1964), the United States Supreme Court held: "[T]he Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable."*fn12 The Court went on to approve "divergences from a strict population standard [that] are based on legitimate considerations incident to the effectuation of a rational state policy,"*fn13 but cautioned that these divergences must not dilute the equal-population principle "in any significant way."*fn14 The Court held: "[ T ] he overriding objective must be substantial equality of population among the various districts. . . ."*fn15

Section 16 of Article II of the Pennsylvania Constitution, in addition to incorporating the "as-nearly-of-equal-population-as-is-practicable" mandate of Reynolds, establishes two other factors which a plan for reapportionment of the Pennsylvania Legislature is to meet. That section provides: "The Commonwealth shall be divided

[ 448 Pa. Page 8]

    into fifty senatorial and two hundred three representative districts, which shall be composed of compact and contiguous 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."*fn16 In Reynolds, Section 16's additional objectives for reapportionment plans were specifically recognized as legitimate considerations which can justify some divergences from a strict population standard. The Court held: "A State may legitimately desire to maintain the integrity of various political subdivisions, insofar as possible, and provide for compact districts of contiguous territory in designing a legislative apportionment scheme. Valid considerations may underlie such aims."*fn17

However, in light of the fact that the Equal Protection Clause requires that in any reapportionment scheme "the overriding objectives must be substantial equality of population,"*fn18 it is not constitutionally permissible to totally achieve Section 16's objective of respecting the boundaries of political subdivisions. As the Supreme Court explained in Reynolds : "[P]ermitting deviations from population-based representation

[ 448 Pa. Page 9]

    does not mean that each local governmental unit or political subdivision can be given separate representation, regardless of population. Carried too far, a scheme of giving at least one seat in one house to each political subdivision . . . could easily result, in many States, in a total subversion of the equal-population principle in that legislative body. . . . [I]f, even as a result of a clearly rational state policy of according some legislative representation to political subdivisions, population is submerged as the controlling consideration in the apportionment of seats in the particular legislative body, then the right of all the State's citizens to cast an effective and adequately weighted vote would be unconstitutionally impaired."*fn19

In addition, Section 16's desire for districts that are "compact" must also yield, if need be, to the "overriding objective . . . [of] substantial equality of population."*fn20 Moreover, attempts to maintain the integrity of the boundaries of political subdivisions unless it is "absolutely necessary" to do otherwise will in reality make it impossible to achieve districts of precise mathematical compactness.*fn21 A great many, if not most of the counties, cities, towns, boroughs, townships and wards in this Commonwealth have a geographical shape which falls far short of ideal mathematical compactness.*fn22

[ 448 Pa. Page 10]

Thus the approach that this Court adopted when we were obliged to undertake the task of reapportionment in 1966 remains the approach which the Legislative Apportionment Commission must employ in formulating its plan. In Butcher II, 420 Pa. at 309-10, 216 A.2d at 459 (1966), we stated: "Our primary concern has been to provide for substantial equality of population among legislative districts. At the same time, we have sought to maintain the integrity of political subdivisions and to create compact districts of contiguous territory, insofar as these goals could be realized under the circumstances of the population distribution of this Commonwealth."*fn23

Subsequent to this Court's decision in Butcher II the United States Supreme Court decided Kirkpatrick v. Preisler, 394 U.S. 526, 89 S. Ct. 1225 (1969), and Wells v. Rockefeller, 394 U.S. 542, 89 S. Ct. 1234 (1969). In these cases, which involved Congressional redistricting plans for the states of Missouri and New York, the Court held: "[T]he command of Art. I, § 2, that States create congressional districts which provide equal representation for equal numbers of people permits only the limited population variances which are

[ 448 Pa. Page 11]

    unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown."*fn24

In Kirkpatrick the Court struck down a Missouri redistricting plan in which the total range of deviation from the ideal district population was 5.97%.*fn25 The Court not only observed that it was "not seriously contended that the Missouri Legislature came as close to equality as it might have come,"*fn26 but stated in addition: "[I]t is simply inconceivable that population disparities of the magnitude found in the Missouri plan were unavoidable."*fn27 The Court also held: "[W]e do not find legally acceptable the argument that variances are justified if they necessarily result from a State's attempt to avoid fragmenting political subdivisions by drawing congressional district lines along existing . . . political subdivision boundaries."*fn28

Kirkpatrick and Wells, as has already been noted, were decisions involving Congressional redistricting plans. These decisions indicate that deviations from equality of population that were formerly regarded as insubstantial and permissible will now be regarded as substantial and impermissible, necessitating a closer adherence to equality of population, even in the area of state legislative apportionment.*fn29 However, Kirkpatrick's rejection, in Congressional redistricting, of the

[ 448 Pa. Page 12]

    maintenance of the boundaries of political subdivisions as a justification for deviations from absolute population equality, cannot be applied in full force to state legislative reapportionment.*fn30

As early as Reynolds v. Sims the Supreme Court recognized that "[s]omewhat more flexibility may . . . be constitutionally permissible with respect to state legislative apportionment than in congressional districting."*fn31 The Court there made it clear why states should have "somewhat" greater flexibility to attempt to preserve the boundaries of political subdivisions in legislative

[ 448 Pa. Page 13]

    apportionment: "Local governmental entities are frequently charged with various responsibilities incident to the operation of state government. In many States much of the legislature's activity involves the enactment of so-called local legislation, directed only to the concerns of particular political subdivisions."*fn32 However, these political subdivisions play no corresponding role in the federal government,*fn33 and little of Congress' activity involves legislation directed "only to the concerns of particular [state] political subdivisions."

III

We turn now to an examination of the plan filed by the Reapportionment Commission. Since the "overriding objective" of any plan must be "substantial equality of population among the various districts,"*fn34 our first inquiry is whether the Commission's plan meets that objective. We believe that it does.

[ 448 Pa. Page 14]

Although the United States Supreme Court has eschewed establishing rigid mathematical standards for what is substantial equality of population in state legislative apportionment,*fn35 it is clear that the requirement of substantial equality has undergone a process of refinement since the Reynolds decision in 1964.*fn36 For example, this Court's apportionment plan in 1966 produced deviations between the highest and lowest-populated districts of 19.16% from the ideal Senate district and 30.04% from the ideal House district.*fn37

However, the United States Supreme Court's subsequent decision in Swann v. Adams, 385 U.S. 440, 87 S. Ct. 569 (1967), struck down a reapportionment plan for the Florida Legislature which provided for only a 25.65% range of deviation from the ideal population for Senate districts.*fn38 In addition, as has already been

[ 448 Pa. Page 15]

    noted, the Supreme Court's decision in Kirkpatrick v. Preisler, although it involved Congressional redistricting, struck down a plan in which the total range of deviation from the ideal district population was only 5.97%.*fn39

It is clear that the Legislative Reapportionment Commission recognized that closer adherence to the requirement of equality of population is now constitutionally in order for state legislative apportionment plans. Under the plan for the reapportionment of the Senate filed by the Commission, the 47th Senatorial District has the lowest population, 231,172, which is 2.02% below the ideal population for Senatorial districts. The 13th Senatorial District has the largest population, 241,360, which is 2.29% above the ideal for Senatorial districts. Thus the total range of deviation from the ideal Senate district population is only 4.31%. Forty of the Senatorial districts deviate less than 1.5% from the ideal, of which 22 deviate less than 1%. The ratio of the lowest Senatorial district population to the highest is 1 to 1.04.*fn40

According to the plan for the reapportionment of the House of Representatives filed by the Commission, the 33rd Legislative District has the smallest population, 56,675, which is 2.48% below the ideal population for Legislative districts. The 19th Legislative District has the largest population, 59,845, which is 2.98% above the average. Thus the total range of deviation from the ideal Legislative district population is only 5.46%. One hundred forty-nine Legislative districts deviate less than 1.5% from the ideal, of which 95 deviate

[ 448 Pa. Page 16]

    less than 1%. The ratio of the lowest Legislative district population to the highest is 1 to 1.06.*fn41

No decision of the United States Supreme Court or of this Court has ever invalidated a reapportionment plan with population deviations as minimal as those occasioned by the Commission's plan, and we believe that the deviations clearly do not dilute the equal-population principle "in any significant way." We conclude therefore that the Commission's plan fully achieves the constitutionally mandated overriding objective of substantial equality of population.

IV

We also conclude that the Commission's final plan has properly maintained the integrity of political subdivisions to the extent that it is possible without defeating the overriding principle of substantial equality of population.*fn42 While it is true that the Commission's plan provides for more political subdivision splits than did this Court's reapportionment plan of 1966,*fn43 this increase was obviously necessitated by the stricter requirements of population equality that are now in order.*fn44 Yet despite these stricter population requirements, the number of subdivision splits called for by the Commission's plan is still quite small when compared to the 2,566 municipalities*fn45 and 9,576 voting precincts*fn46 in this Commonwealth.

[ 448 Pa. Page 17]

It should also be noted that under any scheme of reapportionment that aims at substantial equality of population, a certain amount of subdivision fragmentation is inevitable. For example, when a political subdivision such as Luzerne County has a population which is approximately 1.45 times as large as the ideal Senatorial district population, it is inevitable that the county will be split between at least two Senatorial districts. Keeping this factor in mind, it is clear that the Commission's plan substantially maintains the integrity of this state's numerous political subdivisions. Under the Commission's plan, 74.6% of this state's counties are divided among the ideal number of Senate districts, and only 25.4% of the counties are divided into more than the ideal number of Senate districts.*fn47

V

It is undisputed that the Commission's plan provides for districts of "contiguous" territory. A contiguous district has been defined as "one in which a

[ 448 Pa. Page 18]

    person can go from any point within the district to any other point [within the district] without leaving the district,"*fn48 or one in which "no part of the district is wholly physically separate from any other part."*fn49 Each and every district drawn by the Commission meets these definitions of contiguity.

Finally, we can discern no basis for disturbing the Commission's plan on the ground that the districts for which it provides are not composed of "compact" territory. Before any apportionment plan can be attacked for lack of compactness it must be recognized that there is a certain degree of unavoidable noncompactness in any apportionment scheme. The population density of this state is quite uneven, and therefore attempts to achieve the overriding objective of substantial equality of population will ordinarily necessitate the drawing of districts that are not models of geometric compactness. In addition, attempts to maintain the integrity of the boundaries of political subdivisions will add another increment of unavoidable noncompactness.*fn50 Thus, in the words of one commentator: "Dragons, bacon strips, dumbbells, and other strained shapes are not always reliable signs that partisan (or racial or ethnic or factional) interests are being served. . . ."*fn51

Because of this unavoidable noncompactness, a determination that a reapportionment plan must fail for lack of compactness cannot be made merely by a glance at an electoral map and a determination that the shape of a particular district is not aesthetically pleasing. Instead, as has been proposed by several commentators,*fn52

[ 448 Pa. Page 19]

    compactness of Legislative districts must be evaluated objectively and with allowance for the elements of unavoidable noncompactness.

However, none of the appellants in this matter offered any concrete or objective data indicating that the districts established by the Commission's plan lack compactness. The most that appellants offered in attacking the compactness of various districts were dictionary definitions of compactness and conclusory assertions that certain districts were not compact. The Pennsylvania Constitution requires that those who challenge the Commission's plan have the burden of establishing that it is "contrary to law."*fn53 In light of appellants' failure to produce any objective data indicating that the districts established by the Commission's plan lack compactness, we cannot conclude, merely on the basis of appellants' unsupported assertions, that the Commission's plan fails for lack of compactness. This Court will not adopt the illusory and undiscerning approach of rejecting a plan merely because the geographic shapes of a few districts are not aesthetically pleasing.

VI

Accordingly, the final plan for the reapportionment of the Pennsylvania Senate and House of Representatives filed by the Pennsylvania Legislative Reapportionment Commission is in compliance with all of the requirements of the United States Constitution and the Constitution of this Commonwealth.

Disposition

Ordered that Plan shall be used in the forthcoming Primary and General Elections of 1972 and thereafter shall remain in force and effect until constitutionally altered.*fn*

Dissenting Opinion by Mr. Chief Justice Jones:

I regretfully find myself in disagreement with the majority of my colleagues who, by order dated February

[ 448 Pa. Page 207]

, 1972, held that the final Reapportionment Plan of the Pennsylvania State Legislative Reapportionment Commission, filed on December 29, 1971, complied with the mandates of the Federal and Pennsylvania Constitutions.

Article II, Section 16, of the Pennsylvania Constitution provides that: "The Commonwealth shall be divided into fifty senatorial and two hundred three representative districts, which shall be composed of compact and contiguous territory as nearly equal in population as practicable. Each senatorial district shall elect one Senator, and each representative district one Representative. Unless absolutely necessary no county, city, incorporated town, borough, township or ward shall be divided in forming either a senatorial or representative district." (Emphasis added)*fn1

My study of the plan of the Reapportionment Commission convinces me that, while the plan does meet the standard of population equality mandated by both the Federal and Pennsylvania Constitutions, it clearly violates the standard of compactness and the proscription against the division of counties, boroughs, etc., dictated by the Pennsylvania Constitution.

Article II, Section 16, I repeat, specifically provides that senatorial and representative districts "shall be composed of compact and contiguous territory" and that " unless absolutely necessary " no county, city, incorporated town, borough, township or ward shall be divided in the formation of senatorial or representative districts. Unlike the Federal Constitution which mandates population equality, the Pennsylvania Constitution demands not only population equality but also compactness, contiguity and the preservation of existing lines of political subdivisions or parts thereof except in

[ 448 Pa. Page 21]

    cases of absolute necessity. The obvious purpose behind the Pennsylvania constitutional requirements is to prevent partisan gerrymandering.

Even the most cursory examination of the reapportionment plan in the districts involved in these appeals reveals a complete failure on the part of the Commission to comply with the requirement of compactness. In Butcher v. Bloom, 415 Pa. 438, 463, 203 A.2d 556, 570-71 (1964), this Court said: "We hold, therefore, that . . . the Pennsylvania Constitution requires that . . . reapportionment legislation must maintain the integrity of counties and other political subdivisions, insofar as possible, and must provide for compact districts of contiguous territory, subject always to the overriding objective and mandate that such districts shall be 'as nearly equal in population as may be.' We must emphasize that, if necessary, any political subdivision or subdivisions may be divided or combined in the formation of districts where the population principle cannot otherwise be satisfied." (Emphasis added)

Definition of the word "compact" is somewhat difficult. It has been defined as "closely united or packed; closely knit; solid; dense; also lying in a narrow compass or arranged so as to economize space; close" (Webster's New Collegiate Dictionary, p. 167) and as "closely or firmly united or packed . . . firm; solid; dense; . . . also, lying in a narrow compass or arranged so as to economize space. . . ." (Black's Law Dictionary, p. 351 (4th ed., 1951)).

Senatorial and legislative districts, as outlined in the instant reapportionment plan, particularly in Philadelphia, Lancaster, Westmoreland, Chester and Bucks Counties, flagrantly violate the rule of compactness. There is an old Chinese proverb that says: "One picture is worth more than 10,000 words." The reapportionment plan clearly presents a picture more eloquent

[ 448 Pa. Page 22]

    than words of a complete disregard by the Commission of the constitutional mandate that the districts be compact in nature. In many instances the districts involved in these appeals "twist and wind their way across the map in an erratic, amorphous fashion in order to include scattered pockets of partisan support or exclude centers of opposition voting strength."*fn2

Moreover, the Commission's plan completely ignores the constitutional proscription against the division of counties, boroughs, etc. While the Constitution does permit a division of such political subdivisions, it expressly provides that a division shall not take place " unless absolutely necessary." The Commission utterly fails to demonstrate any necessity in any manner in justification of the many divisions of political entities embodied in the plan.*fn3 The majority decision repudiates the constitutional mandate in this respect. In Reynolds v. Sims, 377 U.S. 533, 560-61, 578 (1964), the United States Supreme Court observed that, "A State may legitimately desire to maintain the integrity of various political subdivisions, insofar as possible, and provide for compact districts of contiguous territory in designing a legislative apportionment scheme." Time after time, instance after instance, the Reapportionment

[ 448 Pa. Page 23]

Commission has not only divided counties, boroughs and other municipalities but in some instances divided precincts in the same ward so that persons living in the same precinct on opposite sides of a street would vote for representatives in different legislative and senatorial districts.*fn4

In my view, the reapportionment plan as presented on these appeals ignores the dictates of the Pennsylvania Constitution in the formation of senatorial and legislative districts and amounts to constitutionally offensive political and partisan gerrymandering.

Dissenting Opinion by Mr. Justice Pomeroy:

It is clear that the reapportionment plan adopted by the Legislative Reapportionment Commission goes considerably farther than did this Court's plan adopted in Butcher II*fn1a in achieving population equality in the voting districts of the Commonwealth,*fn2a and thus is a distinct gain in reaching for the ideal of one man, one vote mandated by the Fourteenth Amendment. Reynolds v. Sims, 377 U.S. 533, 12 L. Ed. 2d 506 (1964). It is equally clear that in so doing the new plan has redrawn district lines in such a way as to cross many more boundaries of political subdivisions than did the 1966

[ 448 Pa. Page 24]

    plan,*fn3a and that compactness has in a number of instances "gone with the wind."

I.

The Court seeks to justify the population disparity in the 1971 plan on the ground that it reaches much closer to the ideal of equality than did the former plan, and that the constitutional requirement, as the Supreme Court of the United States has interpreted it, does not mandate rigid mathematical precision. The majority opinion states that no "population deviations as minimal as those occasioned by the Commission's plan" have been invalidated by the United States Supreme Court, and that these deviations "clearly do not dilute the equal-population principle 'in any significant

[ 448 Pa. Page 25]

    way.'" The difficulty, however, is that there is no "de minimis" exception which has been recognized by the United States Supreme Court. To the contrary, that Court has expressly rejected the de minimis argument in a case where the maximum spread from the mathematical ideal was only 6%. Kirkpatrick v. Preisler, 394 U.S. 526, 22 L. Ed. 2d 519 (1969). The Court there held that "the State must justify each variance, no matter how small". 394 U.S. at 531. That case, to be sure, involved congressional districting, where the population factor may be even more paramount than in districting for state offices, but there is no indication that the de minimis standard would be acceptable in the latter situation.*fn4a

It may be that satisfactory explanation for and justification of the comparatively minor population deviations which are contained in the present plan can be made. Unfortunately, however, this can be done only by the Reapportionment Commission which struggled with the problem. Unlike the Court in Butcher II, supra (see especially the concurring opinion of Mr. Chief Justice Bell and part I of the concurring and dissenting opinion of Mr. Justice Roberts, 420 Pa. at 355 and 366), the Commission did not see fit to explain or justify its report in any way, or to indicate on what grounds it dismissed the exceptions which form the

[ 448 Pa. Page 26]

    bases for those appeals. We therefore have before us only the plan itself, which constitutes the entire record in this case. I cannot agree that this "res ipsa loquitur" approach passes constitutional muster today.

II.

Another principal ground on which the present reapportionment plan is attacked is that it unjustifiably violates the integrity of political subdivisions.

In Butcher I*fn5 we construed Article II, §§ 16 and 17 of the Pennsylvania Constitution of 1874. The former section dealt with Senatorial districts. The court held that Senate apportionment must "respect county lines and lines of other political subdivisions (such as wards, boroughs, and townships) insofar as possible, without doing violence to the population principle enunciated by the first sentence of § 16 and also by the Fourteenth Amendment to the Federal Constitution" as interpreted in Butcher I, supra. We also held that § 17, relating to House of Representatives apportionment, "demands that the boundaries of all political subdivisions be respected when not in conflict with the overriding population principle." More specifically, we stated that § 17 must be interpreted to require that "counties with small populations, if necessary, be joined with other counties for the purpose of electing and sharing a representative", and that the section did not prohibit "the division or combination of counties in the formation of districts where the population principle cannot otherwise be satisfied." 415 Pa. at 465.

Since our decision in the two Butcher cases, §§ 16 and 17 of the 1874 Constitution have been amended and consolidated into Article II, § 16 of the Constitution of 1968 to provide that "[u]nless absolutely necessary no

[ 448 Pa. Page 27]

    county, city, incorporated town, borough, township or ward shall be divided in forming either a senatorial or representative district." The " absolutely necessary " is clearly with reference to the immediately preceding and paramount requirement that the districts "be composed of compact and contiguous territory as nearly equal in population as practicable." Those strong, blunt words give unmistakable emphasis to the principle of preserving the integrity of political subdivisions unless their division cannot be avoided because of the "overriding" population requirement, and the requirement of compactness and contiguity.*fn6

Faced with the greatly increased number of splits in the Commission's new plan, the court today makes the blanket statement that "[t]his increase was obviously necessitated by the stricter requirements of population equality that are now in order." This may be a good guess, but to me it is by no means obvious. In the face of constitutional language which prohibits divisions unless "absolutely necessary", there surely must be some showing of necessity, some demonstration that "the population principle cannot otherwise be satisfied." The Commission has vouchsafed nothing, and the Court is reduced to trying to read its mind.*fn7 It

[ 448 Pa. Page 28]

    may be acknowledged that some dividing of counties, municipalities and wards and some surrender of compactness is unavoidable, but there is no presumption that each split that was made or each misshapen district that was created falls into this category. That the final plan has "the force of law" (Pennsylvania Constitution art. II, § 17) does not "bootstrap" its every feature into a position of automatic constitutional validity, absent a showing of necessity.

There can be no doubt that the Commission's task in reapportionment, striving as it must to heed at once the ideals of population equality, territorial compactness and contiguity, and preservation of municipal boundaries, is formidable and complex; perfection is not possible. In my view, however, this does not relieve it of the obligation to explain and justify the inability to accomplish these simultaneous objectives.

For these reasons I dissented from the orders of this Court entered on February 7, 1972.

Dissenting Opinion by Mr. Justice Manderino:

[ 448 Pa. Page 29]

I respectfully dissent. The majority opinion erroneously concludes that the Fourteenth Amendment requires only a substantial equality of population in each legislative district. Neither the Fourteenth Amendment nor any cases decided in the United States Supreme Court have ever intimated that substantial equality is equality. Yet the majority -- in a substantiation of their error -- tell us that the United States Supreme Court is now requiring a "closer adherence" to equality. Not so. The Court requires -- indeed has required -- ". . . a good faith effort to achieve precise mathematical equality. . . ." Wells v. Rockefeller, 394 U.S. 542, 22 L. Ed. 2d 535 (1969). ". . . The state must justify each variance, no matter how small. . . ." Kirkpatrick v. Page 29} Preisler, 394 U.S. 526, 22 L. Ed. 2d 519 (1969). The Fourteenth Amendment does not speak of substantial equal protection of the laws. It speaks of equal protection of the laws. When absolute equality is not achieved, the government must show that the lack of equality was either unavoidable or that the lack of equality of treatment of a citizen resulted from a rational plan or scheme devised to achieve legitimate state objectives. Reynolds v. Sims, 377 U.S. 533, 12 L. Ed. 2d 506 (1964).

The Fourteenth Amendment does not require any different standards for equal protection of the laws in voting and apportionment matters than it does in any other matter.

Lack of absolute equal protection of the laws is often unavoidable. A citizen may well claim a denial of equal protection of the laws because the state capitol is located two hundred miles from his home while the distance from the state capitol to another citizen's home is only two miles. The denial would not, however, be unconstitutional; the state could show that such discrimination is unavoidable. It would not be possible to locate the state capitol an exact distance from the residence of each citizen.

Lack of equal protection of the laws also results when the state's desire to achieve a legitimate state objective in one area of concern which will necessarily result in a denial of equal protection to a citizen in another area. A businessman, whose business establishment (a restaurant) is periodically inspected while his neighbor's business establishment (a shoe store) is not periodically inspected, may claim and establish a prima facie case of denial of equal protection of the laws. This would not be a constitutional denial of equal protection; to protect the health of citizens in public eating establishments would be a legitimate state objective.

[ 448 Pa. Page 30]

The overriding legitimate state objective justifies the resulting denial of equal protection even though one business establishment is inspected and another is not.

Once the legitimacy of the state's objective is established, the Fourteenth Amendment requires that the means used to achieve the objective be rational not crazy-quilt. A plan or scheme, requiring inspection of Chinese restaurants only, would violate the Fourteenth Amendment.

The United States Supreme Court cases dealing with apportionment have not changed traditional Fourteenth Amendment guarantees of equal protection. These cases entitle a citizen to equal -- not substantially equal -- protection of the laws; one man's vote must be equal to anothers. Any inequality must be justified as unavoidable or necessary to rationally implement a legitimate state objective. Reynolds v. Sims, supra.

Applying these principles to the reapportionment plan submitted by the Pennsylvania Legislative Reapportionment Commission, the plan violates the Fourteenth Amendment because on its face it denies to each citizen of the Commonwealth equality of the vote. The majority opinion's statistics concerning the population of the various legislative districts plainly show that each citizen's vote in the Commonwealth does not receive equal treatment.

The deviations in population in the various legislative districts can not stand because it has not been shown that the deviations were unavoidable or resulted from the implementation of a rational plan in order to achieve legitimate state objectives. The submitted plan can not meet either of the tests under the Fourteenth Amendment to the United States Constitution.

The population differences in the various legislative districts were not unavoidable. Unless unavoidable, legislative districts should not vary in population more

[ 448 Pa. Page 31]

    than a single vote and only then if the mathematics of odd and even require it. Unavoidable is a relative term and must be considered at a given moment in time under all of the circumstances. Population variations would be totally avoidable if there were readily available to those engaged in apportionment, information concerning every square foot of the Commonwealth of Pennsylvania and the exact pinpointed geographic residence of every single person in the Commonwealth. It would be possible for the Commonwealth to obtain such information but the cost would be prohibitive in 1972. Modern technology may allow us in some future century to instantaneously call up such information. When that time comes, mathematical exactness will become practicable and legislative districts will then have to be apportioned with mathematical exactness. Since such exactness today is not possible without prohibitive expenditures, the law does not require such exactness. The law, in 1972, must, however, require the use of those tools which are, without question, available to any apportioning group. In Pennsylvania there is readily available a map of the Commonwealth showing in detail the geographic outline and location of every single municipality from the largest unit to the smallest. This includes counties, cities, boroughs and towns. In addition to such Commonwealth maps, there is available the report of the Bureau of Census which provides population information about Pennsylvania including the population of each political subdivision from the largest to the smallest. The Reapportionment Commission had both of these tools and submitted them to this Court. These tools, with perhaps the assistance of an adding machine, are certainly the minimum tools that must be fully used in determining what results are practicable in 1972, in achieving equality of voting rights for any citizen under the Fourteenth Amendment.

[ 448 Pa. Page 32]

The results that can be achieved by the use of these tools are the minimum results which are demanded before it can be properly said that population variations were unavoidable.

The districts for the Pennsylvania Senate range from a low of 231,172 to a high of 241,360. The districts for the Pennsylvania House of Representatives range from a low of 56,675 to a high of 59,845. It is plain that some citizens have been given almost the equal protection of the laws but not the equal protection of the laws. This did not happen because such different treatment of different citizens was unavoidable. A study of the Pennsylvania Political Subdivision Map and the United States 1970 Census of Population, Pennsylvania booklet will readily indicate to any observer that a simple shift of certain political subdivisions lying along the dividing line between districts would have provided more equalization between districts.

A shift of a political subdivision from one district to another is mandated if more equal results are to be obtained. The Fourteenth Amendment requires no less. We fully recognize that any shift of a political subdivision from one district to another may cause less equalization in other districts. Of course, a shift of a political subdivision anywhere in the state might result in a chain reaction which, as it ripples throughout the Commonwealth, will unequalize more than it equalizes. Such a shift may, of course, not give more citizens more equal protection of the laws. But a study of the Pennsylvania Map and the Population Figures of the Political Subdivisions indicate that much equalization can take place without causing any such chain reactions. Shifts of political subdivisions affecting only two districts -- that from which the political subdivision is being removed and that in which the political subdivision

[ 448 Pa. Page 33]

    is being placed -- involve no chain reactions across the state. Many such shifts are possible in the plans presented.

Because the population variances in the legislative districts were avoidable using the practical tools that are available without requiring any large expenditures of money by the Commonwealth, the plan submitted violates the Fourteenth Amendment to the Constitution of the United States because it gives different treatment under the law to various citizens of the Commonwealth. The population variances can not be justified as being unavoidable.

Even though population variances in legislative districts were avoidable in light of the practicalities of the situation, the variations may be constitutionally permissible if the variations resulted because of the implementation of a rational state plan in order to achieve legitimate state objectives. Kirkpatrick v. Preisler, supra.

The Reapportionment Commission has not presented any rational plan which was used as a means to achieve legitimate state objectives.

We have, of course, been given the legitimate objectives of the Commonwealth of Pennsylvania. The Reapportionment Commission states that it attempted to achieve the objectives which are outlined in the Pennsylvania Constitution. The objectives contained in Article II, Section 16, of the Pennsylvania Constitution are, in addition to establishing districts as nearly equal as is practicable, that the districts be of compact and contiguous territory and that no political subdivision be divided unless absolutely necessary.

These have been stated to be legitimate state objectives. The statement of these objectives, however does not end the inquiry concerning the constitutionality of a reapportionment plan.

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These objectives contained in the Pennsylvania Constitution are legitimate objectives under the standards outlined by the United States Supreme Court. That Court has said that a rational state plan may be based on the objective of preserving the integrity of political subdivisions to obtain compact and contiguous territory. Reynolds v. Sims, supra.

A mere statement, however, that population variances in the legislative districts resulted from the pursuit of legitimate state constitutional objectives does not make it so unless this Court is presented with a rational state plan whose implementation resulted in population variations. Swann v. Adams, 385 U.S. 440, 17 L. Ed. 2d 501 (1967). We have been presented with no such plan and are completely in the dark as to whether the discriminations that occurred in population variations resulted from the implementation of a rational state plan or were crazy-quilt.

It may be that at some time in the future the legitimate state objectives will change. For instance, the requirement of compact and contiguous territory and the preservation of the integrity of political subdivisions, which are not required by the Fourteenth Amendment, may give way to considerations which are nongeographic. It is not inconceivable that a rational state plan some day may look to an objective whereby various age groups throughout the Commonwealth receive representation. A legitimate state objective might be that 18 to 25 year olds or 60 to 70 year olds elect representatives separately from other age groups. This may be a legitimate state objective and if a rational plan or scheme is set up and implemented, no denial of equal protection of the law would result.

The Pennsylvania plan must fail because on its face it denies the equal protection of the laws in view of the population variations. It must fail because the Reapportionment

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Commission has not established that these variations were unavoidable. It must also fail because the Commission has not established or given to this Court any rational plan which was used in order to achieve the acknowledged legitimate state objectives.

We note that if a state can establish that certain population variances were unavoidable, the percentage deviations between districts may be acceptable, regardless of what percentage deviations are involved. Population deviations, however, based on the second acceptable reason for such deviations, namely that they resulted from a rational state plan will be closely scrutinized. A state plan which is devised to obtain legitimate state objectives may not be constitutional if the result is a substantial variation in population between the districts. Reynolds v. Sims, supra.

The majority seems to fall into the error about which we have been warned by the Supreme Court. The task in reapportionment is not to see how close we can come to equality. The task is to achieve equality. Any departure must be unavoidable or justified. The justification must be balanced against the percentage deviation. Kirkpatrick v. Preisler, supra.

We note that in Kirkpatrick the Court considered a 5.97% deviation unconstitutional. This was a minimum deviation, but nothing was presented to justify even such a minimum deviation. The Pennsylvania plan, as the majority points out, deviates only 4.31% for the senatorial districts and 5.46% for the legislative districts. It is fatal for the same reasons. No justification has been shown for such deviation. The legitimate state objectives have been established but no rational plan for the implementation of these objectives has been presented.

On the other hand the Supreme Court has approved a local reapportionment which involved a variation of

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.9%. Abate v. Mundt, 403 U.S. 182, 29 L. Ed. 2d 399 (1971). The percentage deviation was balanced against the rational plan used by the municipality to achieve legitimate municipal objectives. This clearly illustrates that percentages alone are irrelevant. The key inquiry is why was a citizen's vote denied equal weight. If the state objective is important enough, a percentage deviation of ten may be constitutionally valid. If the state or local objective are not important, a deviation of even two percent would not be permissible. Kirkpatrick v. Preisler, supra.

We are unable to make any evaluation of Pennsylvania's deviation because we have been given no rational plan or scheme by which the legitimate state objectives were pursued.

The plan also violates the requirements of the Pennsylvania Constitution. The Pennsylvania Constitution, Article II, Section 16, requires that the population in the legislative districts be as nearly equal as is practicable. This equality has not been achieved with the practical tools available to the Commission.

The Pennsylvania Constitution also states as legitimate objectives the compactness and contiguity of territory and the integrity of the political subdivisions. A look at the Pennsylvania map with the population of each political subdivision superimposed will readily show that many districts are not compact although they are all contiguous. The plan submitted has also violated the integrity of many political subdivisions. The Senate plan has violated the integrity of twenty-six counties out of sixty-seven. The plan for the House of Representatives has violated the integrity of forty-five counties out of sixty-seven. In addition, many municipalities were divided.

We have no way of knowing whether the lack of compactness in the districts or the violation of the integrity of the political subdivisions resulted because of

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    the application of a rational state plan. The Commission has presented its conclusion that the lack of compactness and the split of political subdivisions was necessary. Why? We are not told. We have no way of knowing whether the defects resulted from arbitrary picking and choosing in various parts of the Commonwealth. A plan is not constitutionally validated by merely stating the objectives.

The majority erroneously place certain burdens upon the objectors to the submitted reapportionment plan. Once the citizen has established his denial of the equal protection of the law by showing variations in the population districts which dilute his vote, it is incumbent upon the state to establish why this prima facie denial of the equal protection in population occurred. Wells v. Rockefeller, supra. The citizen does not have the tools to determine whether the variations were unavoidable or justified because of the implementation of a rational plan to achieve legitimate state objectives. How can the citizen properly assess whether variations were unavoidable or justified unless he is first provided with information concerning these matters? We have no such information before the Court and it was the burden of the Commission to show that the variations were unavoidable or justified.

Because the consideration of the constitutionality of the Commission plan was before this Court just a few months before the scheduled Primary Election of 1972, I would not interfere with the conduct of the 1972 elections. This appeal has come before this Court without any undue delay on the part of the Commission or the Commonwealth. In such circumstances, I would permit the elections of 1972 to proceed under the plan submitted, but would remand the matter to the Reapportionment Commission for the drawing of a reapportionment plan which meets constitutional standards. This Court should retain jurisdiction.

Disposition FOOTNOTES

* : On October 10, 1972, the Supreme Court of the United States dismissed an appeal for the want of a substantial federal question.


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