The opinion of the court was delivered by: BECHTLE
The regrettable but inevitable disappointment that follows reapportionment has surfaced again in the case before us. Challenged are the district boundaries of a single seat in the Pennsylvania House of Representatives. Plaintiffs contend that those boundaries were designed with the purpose and effect of diluting or diffusing the Hispanic vote in a certain area of Philadelphia, in violation of Section 1983 of Title 42, United States Code, and Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. Plaintiffs seek a variety of declaratory and injunctive relief. On March 16, 1982, the present Court of three judges, duly convened, held a final hearing on the merits. What follows constitutes the Court's findings of fact and conclusions of law.
Reapportionment of Pennsylvania's state legislature is governed by a provision of the state's constitution requiring that a Legislative Reapportionment Commission be constituted for the purpose of reapportioning the Commonwealth in each year following that in which the federal decennial census is reported. Pa.Const. art. 2, § 17(a). The commission is to consist of five members: the majority and minority leaders of both the state Senate and the state House of Representatives, or their designees, and a chairman selected by the first four members in a manner also provided by the state constitution. Id. § 17(b). Within ninety days of the certification of the name of the chairman to the Secretary of the Commonwealth, the officer of the Commonwealth who supervises elections, the commission must file a preliminary reapportionment plan. Within the next thirty days, the commission may make corrections and "(any) person aggrieved by the preliminary plan" may file exceptions to the plan. If exceptions are filed, the commission has another thirty days from the date of the filing of the exceptions to prepare and file a revised reapportionment plan with the Secretary of the Commonwealth. Id. § 17(c).
With the filing of a revised or final reapportionment plan, the principal work of the commission is finished. A person aggrieved by the final plan, however, may file an appeal directly to the Supreme Court of Pennsylvania within thirty days of the filing of the plan. If shown to be contrary to law, the plan may be remanded by the Supreme Court to the commission for correction. Id. § 17(d). If, however, the Supreme Court decides that the plan is not contrary to law, or if no appeal is taken, then the reapportionment plan "shall have the force of law and the districts therein provided shall be used thereafter in elections to the (Pennsylvania legislature) until the next reapportionment as required under this section ...." Id. § 17(e).
The 1980 United States Census reported that Pennsylvania had a population of 11,866,728. In re Reapportionment Plan for the Pennsylvania General Assembly, 497 Pa. 525 n.5, 442 A.2d 661 at 666 n.5 (1981). Thus, each of Pennsylvania's 203 seats in the state House of Representatives, including the 29 seats allocable to the City of Philadelphia, would ideally represent 58,456 people. Id. at 666. The United States Census also reported that the Hispanic population of Philadelphia increased from approximately 25,000 in 1970 to approximately 63,000 in 1980. Amended Complaint PP 19-20. Most of these 63,000 Hispanics live in the north central area of Philadelphia focused upon in this case. Id. P 22.
In conformity with the requirements outlined above, defendant Legislative Reapportionment Commission ("Commission") was duly constituted in January and February of 1981. It consists of Senator Robert C. Jubelirer, Senate Majority Leader, Senator Edward P. Zemprelli, Senate Minority Leader, Representative Samuel E. Hayes, House Majority Leader, Representative James J. Manderino, House Democratic Whip, and the Chairman, selected by them, James O. Freedman, Dean of the University of Pennsylvania School of Law. Once formed, the Commission began its initial task of preparing a preliminary reapportionment plan. Public comment from interested citizens was sought at this stage as it often was throughout the process. See Chronology of the 1981 Pennsylvania Reapportionment Plan, Document No. 10, at 2, 3 (hereinafter cited as "Chronology").
By the time the preliminary reapportionment plan was being prepared, defendant Democratic Party City Committee of Philadelphia ("City Committee") and defendant David Glancey, Chairman of defendant City Committee, had developed a number of suggestions on how to reapportion the City of Philadelphia which they sought to have included in the preliminary reapportionment plan. N.T. 53-54. These suggestions did not take the form of a comprehensive proposal having defined district boundaries with a supporting analysis of the size and composition of the populations in each district. Indeed, the closest the City Committee came to formulating a "plan" was to develop worksheets grouping wards and divisions preferably to be included within the same legislative district. N.T. 53-54.
Defendants Glancey and the City Committee knew, however, that the districts so proposed would split the vote of the Hispanic community among several districts and would leave little opportunity for the election of an Hispanic representative. Nevertheless, the objective of so distributing the Hispanic vote was not to cause the adoption of a final reapportionment plan in which the Hispanic vote was diffused. On the contrary, defendants hoped that the filing of a preliminary plan splintering the Hispanic vote would provoke a strong reaction from that community. The resulting outcry, it was hoped, would cause the Commission to adjust district boundaries in order to form a district with a larger Hispanic population. In a kind of domino effect, the adjustment of boundaries to form a district of greater Hispanic concentration would require corresponding adjustments in neighboring districts. It was hoped that among the districts redrawn would be those in an area of the city where the Democratic Party was doing battle with the Republican Party, and that the adjustments in those districts would result in districts drawn more favorably for the Democratic Party. N.T. 61-63; Exhibit P4 at 19-20.
The suggestions of the City Committee and defendant Glancey that embodied this strategy were never submitted directly to the Commission or any of its individual members, either formally or informally. N.T. 48, 56. Instead, defendant Glancey transmitted them verbally to defendant O'Donnell, who had been asked by Commission member James J. Manderino "to communicate ... the views of folks in Philadelphia and also information, technical and otherwise, about what the impact of the reapportionment plan would be." N.T. 46, 58 & 75. Prior to the filing of the preliminary plan, however, defendants Glancey and O'Donnell never discussed the specific question whether an Hispanic district ought to be created. N.T. 90. Moreover, neither defendant Glancey nor defendant City Committee was shown to have played any other part in the development of the Commission's preliminary reapportionment plan. See N.T. 43, 48-49, 66-67.
On August 20, 1981, the Commission filed its preliminary reapportionment plan. Exhibit P5. While many aspects of the preliminary plan provoked comment, the only aspect of importance here is that none of the proposed districts for the state House of Representatives had a population that was more than 15% Hispanic. Furthermore, while some of the City Committee's informally transmitted suggestions were incorporated in the preliminary plan, others were not. N.T. 46.
Over the next thirty days, the commission received approximately 300 exceptions to the preliminary plan. On September 24, 1981, the Commission held one of twelve public hearings it conducted on the reapportionment plan, and sixty-four interested citizens testified in support of their exceptions. Among those who filed exceptions and presented supporting testimony at the September 24, 1981 hearing were Angel Ortiz, counsel for plaintiffs in this case, and Wilfredo Rojas. See Chronology, Exhibit A. Mr. Ortiz and Mr. Rojas testified that the preliminary reapportionment plan failed to include a district in the House of Representatives that would permit Hispanics an opportunity to elect a representative, even though the increased number and concentration of Hispanics in north central Philadelphia would make such a district possible. Id. Also offered at that hearing was the testimony of James Mahoney, a coordinator of the Philadelphia Council of the AFL-CIO, who spoke in support of an alternative reapportionment plan for the City of Philadelphia that was prepared by the AFL-CIO. See Exhibits P1, P3. Included in that plan was a proposed district for the House of Representatives, the 180th legislative district, in which Hispanics would constitute about 54% of the population. N.T. at 29-30.
Eventually, on October 13, 1981, the Commission filed a final reapportionment plan that contained many changes apparently made in response to the various exceptions filed. See Exhibit P6. Among the boundaries readjusted were those of district 180. As a result, the district as defined in the Commission's revised plan would have a population that was about 40% Hispanic. N.T. at 9; Complaint P 31.
This final reapportionment plan was challenged in twenty-nine petitions for review filed with the Supreme Court of Pennsylvania within the time allowed. One of these petitions for review was filed by several persons of Hispanic origin, including Wilfredo P. Rojas and Angel Ortiz, and two Hispanic organizations. See Chronology, Exhibit B. In that petition for review, appellants asserted that the final reapportionment plan unconstitutionally diluted the Hispanic vote in the vicinity of the proposed 180th legislative district. Appellants also filed a brief in support of their petition in which they requested an evidentiary hearing to permit appellants to present further evidence of racial discrimination. Chronology, Exhibit D.
Appellants' request for an evidentiary hearing was not granted, and oral argument on twenty-five of the petitions for review was held before that court on December 7, 1981. On December 29, 1981, the Supreme Court filed an opinion approving the plan and declaring it to have the ...