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March 23, 1982


Per Curiam

The 1980 census revealed a decline in Pennsylvania's population that required the number of congressional districts to be reduced from 25 to 23. After spirited and sometimes acrimonious debate, the state legislature enacted a reapportionment statute which was signed by the Governor. Act of March 3, 1982, P.L. -- -, No. 42, (hereafter Act No. 42).

 These consolidated cases attack the constitutionality of Act No. 42. Plaintiffs are incumbent members of Congress, prospective candidates, municipal officials, concerned citizens, and others. Additional individuals have been permitted to intervene. The plaintiffs request a declaration that Act No. 42 is unconstitutional and an injunction delaying the primary election that is presently scheduled for May 18, 1982, as well as the general election set for November 2, 1982.

 This three-judge court was convened pursuant to 28 U.S.C. § 2284(a). After hearing testimony and argument on March 18, 1982, and following submission of briefs on March 22, 1982, we conclude that the request for a preliminary injunction to delay the primary election on May 18, 1982 must be denied. We reach no other issue at this time.

 The plaintiffs contend that the reapportionment plan violates Art. I, § 2 of the United States Constitution and the First, Fourteenth and Fifteenth Amendments. Specifically they argue, inter alia, that there are impermissible population variances and fragmentation of municipalities. In addition, it is asserted that some districts are neither contiguous nor compact, some constituencies have not been preserved, and in certain instances the voting strength of black citizens is diluted.

 The legislature began its reapportionment task by utilizing the official census figures published on April 1, 1981. These showed the state's population was 11,866,728. Based on this figure, the ideal size of a congressional district was determined to be 515,944.

 After considering various plans, the legislature passed Act 42. It provides for twenty-three districts, the largest of which, the Twenty-first, has 701 persons above the ideal number. The smallest, the Ninth, has 514 below the ideal. The total numerical deviation between the two districts is 1215. Statewide, the average deviation from the ideal is 253 persons. The deviation between the largest and the smallest district on a percentage basis is .2354%.

 After the Governor signed Act No. 42, it was discovered that the Census Bureau had sent revised statistics to the state's legislative data processing bureau in October 1981. The revised figures showed a population of 11,863,895 and based on this figure, an ideal district would number 515,821.5 persons. The Twenty-first district would remain the largest, with 824 persons above the ideal number. District Sixteen would become the smallest, with 1,236 persons less than the ideal. The total numerical difference between the districts would be 2,060 with an average statewide deviation of 364. Expressed in percentages, the deviation between the largest and smallest district would change to .3993%.

 At the March 18 hearing plaintiffs demonstrated that the distribution of black citizens was changed by Act 42 by relocating the boundaries of the adjoining Fifth and Seventh Congressional Districts. Before reapportionment, the Seventh District contained a 10.6% black population. In the newly created district, that figure was reduced to 5.9%. In the Fifth District, before reapportionment, blacks constituted 4.6% of the population. Act 42 raised the proportion to 11.2%.

 Plaintiffs also submitted an offer of proof that a witness would testify that the black population shift between the Fifth and Seventh Districts, although amounting to only 5%, in each instance would have a proportionately greater impact on the effectiveness of the black vote.

 In the Fourteenth District, which is the area surrounding the city of Pittsburgh, the percentage of black citizens was reduced by reapportionment from 25.49% to 21.77%.

 In Philadelphia, Act 42 reduced the number of districts wholly within the city from four to three. There are two additional districts encompassing part of the suburban areas as well. Before reapportionment, the Second District in the city had a black population of 74.7%. Act 42 raised the proportion to 80%. Before reapportionment the First District's percentage of black citizens was 44.7%. After reapportionment a new First District was created primarily by merger with the old Third. The proportion of black citizens in the new First District was reduced to 32.1%. Plaintiffs contend that the approximately 5% of black persons now included in the Second District should have been placed instead within the First District, raising its proportion to approximately 38%.

 Of immediate concern to the court is the request for a preliminary injunction which would delay the primary election set for May 18, now less than two months away. The plaintiffs must show that they have a reasonable probability of success on the merits, they will suffer irreparable harm in the absence of preliminary injunctive relief, and the interest of other affected persons and the general public weigh in favor of issuance of an injunction, or at least do not militate against it. A. O. Smith v. F.T.C., 530 F.2d 515, 525 (3d Cir. 1976).

 Some doubt remains whether the legislature was required to consider the census revision of October 1981 or whether it was restricted to the April 1981 version which yielded a population deviation of .2354%. Without ruling on the question, we shall apply the figures more favorable to the plaintiffs' cause-those produced by the revisions of October 1981. These figures show a deviation of .3993%.

 The Supreme Court has stated that in congressional reapportionment, the state must "make a good-faith effort to achieve precise mathematical equality." Kirkpatrick v. Preisler, 394 U.S. 526, 530-31, 89 S. Ct. 1225, 1228-29, 22 L. Ed. 2d 519 (1969) (citation omitted). The Court warned that "to consider a certain range of variances de minimis would encourage legislators to strive ...

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