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September 13, 1982


The opinion of the court was delivered by: WEIS

 This case presents us with the decennial issue of reapportionment. The plaintiffs challenge Act 42, which was enacted by the Pennsylvania General Assembly to reapportion the state's congressional districts in accordance with data derived from the 1980 census. The question before us is whether the evidence adduced requires us to tread our way through the political thicket or whether the facts permit us to exercise judicial restraint and stop at the edge. Although precise numerical equality was not achieved for each district, we conclude that there was sufficient compliance with the constitutional mandate so that judicial intervention is not required.

 We earlier refused to issue a preliminary injunction which would have halted the primary elections. 535 F. Supp. 191 (M.D.Pa. 1982). We did so because of the imminence of the elections, and the lack of compelling statistical data on the extent of population deviation among the congressional districts under Act 42. However, the parties raised serious constitutional questions and expressed a desire to present a more complete record. Consequently, we scheduled a hearing on the request for a permanent injunction. Pursuant to our directions, the evidence in this proceeding was submitted largely in the form of affidavits and depositions, supplemented by in-court cross-examination of certain witnesses. We have also had the benefit of extensive argument and briefing by counsel.

 The augmented record does not present substantially different relevant evidence from what was previously presented to us. For ease of reference, however, we will include in this opinion the dispositive factual matters from both hearings. *fn1"

 In 1981, the Governor of Pennsylvania was advised by the President that, as result of the 1980 census, Pennsylvania was entitled to 23 seats in Congress. This represents a reduction of two seats and required the state's congressional districts to be reapportioned.

 On March 25, 1981, the Census Bureau forwarded the official data from the 1980 census disclosing that the state's population is 11,866,728. Based on this figure, an ideal congressional district would contain 515,944 persons. Utilizing these statistics, the legislature began its reapportionment task. After considering and vigorously debating various plans, Act 42 was passed, and signed into law on March 4, 1982. It provides for 23 districts, the largest of which, the 21st, has 701 persons above the ideal number. The smallest, the Ninth, has 514 below that figure. The total numerical difference between the highest and lowest districts is 1215. Statewide, the average variation from the ideal figure is 253 persons, expressed in percentages as.0490%. The percentage of deviation between the largest and smallest district is.2354%.

 On October 22, 1981, the Executive Director of the Pennsylvania Legislative Data Processing Center received revised information from the Census Bureau. The population figures for seventeen municipalities in the state were modified, but the data did not include a racial breakdown, as did the March 1981 figures. The October 1981 revisions were not communicated to the legislature by the Data Processing Center, and so did not form the basis for any of the reapportionment plans introduced in either the House or the Senate.

 The revised census figures place the total state population at 11,863,895. Based on these figures, an ideal congressional district would include 515,822 persons. Applying the October revisions to Act 42, the largest district, the 21st, now has 824 persons above the ideal, while the smallest, the 16th, has 1236 below. The numerical deviation between the high and low districts is 2,060. Statewide, the average variation is 364 persons -- an average percentage of.0700%. The difference between the largest and smallest district, expressed in percentages, is.399%.

 The Pennsylvania legislature considered at least sixteen apportionment plans, and debated and voted on eleven different proposals to reapportion the congressional districts. Three of the plans voted on in either the House or the Senate had lower percentage variations than Act 42. The deviations ranged from.0895% to.1208%. One of them was sponsored by the Republican leadership and two by the Democrats. S.B. 805, P.N. 1579, had a deviation of.1208%. It was passed by the House of Representatives, but defeated in the Senate. In fact, all the other proposals were rejected by the legislature for various reasons, such as splitting the City of Pittsburgh into three separate congressional districts, and low percentages of black voters in Philadelphia and Pittsburgh districts. Three other plans with a lower deviation than Act 42 were also considered, but did not come to a vote.

 The Republican party had bare majorities in both the House and Senate, but was unable to pass a reapportionment bill in the House without Democratic support. One of the major issues which impeded passage of legislation arose out of the need to pit incumbents against each other. For example, Philadelphia was an obvious locality for the elimination of a seat because of its loss in population. Even so, since the final configuration would affect the election prospects of two incumbents, substantial disagreement was provoked by the necessity of putting them in the position of vying for a single seat. The desire to maintain a predominantly black district within the City, which would preserve the reelection chances of the incumbent black congressman, also led to difficulties in drawing district lines.

 Other local considerations entered into the debates as well, such as attempting to avoid fragmentation of county and municipality boundaries, and retention of voters within the districts to which they had elected congressional incumbents. Finally, partisan considerations played a vital role in the proposed districting plans. Some were drawn to give a particular party a hoped for advantage in the forthcoming election, or to match two incumbents from the same party against each other. This latter consideration was particularly evident in western Pennsylvania, where much of the skirmishing concerned proposals that a Democrat oppose a Republican or that two Democrats oppose each other.

 Interspersed throughout the debates were frequent references to the fact that, however the lines were drawn, the population between the districts had to be "basically in the same numbers. That is the established criteria on Federal congressional reapportionment and the most salient of the considerations." *fn2" The legislative journals also reveal that the debates focused on the undesirability of diluting the voting strength of minorities, particularly black citizens. The only black congressman in Pennsylvania was elected from a district in Philadelphia with a 74.7% black population.

 Act 42 had a number of effects on minority voting strength. In Philadelphia, the boundaries of the Second district were redrawn so that its black population was increased to 80.0%. This district includes the residence of the incumbent black congressman. In the old First district, the black population was 44.7%, and in the old Third district, it was 32.4% black. The core of these two districts was merged into a new First district, with a black population of 32.17%.

 The old 14th district, which included parts of the City of Pittsburgh, had a black population percentage of 25.49%. As modified by Act 42, the 14th district comprised all of the City of Pittsburgh as well as some adjacent municipalities, but the black population was reduced to 21.77%. However, none of the reapportionment plans considered by the legislature provided for a 14th district with over 22% black citizens.

 In the southeastern part of the state, the former Fifth district had a black population of 4.6%. Under Act 42, the percentage increased to 11.2%. The adjoining Seventh district had a black population of 10.6%, which was reduced to 5.9% by Act 42. The City of Chester, the only city in Pennsylvania that enjoys a black majority, was moved from the Seventh to the Fifth district under Act 42, accounting for the shift in minority population between these two districts.

 The plaintiffs in these consolidated suits may be divided into four groups. State Senator Kelley, representing Democratic legislators, is in the group that attacks the plan generally because of the failure to achieve numerical equality, the employment of partisan political concerns, and lack of good faith on the part of the defendants. Anna Miller and Alfred Ford *fn3" lead the group that challenge the redistricting as to Philadelphia and Chester, alleging that black voting strength has been diluted in both areas. Ted Simon, representing Westmoreland County municipal and county officials, contests the division of Westmoreland County into several congressional districts on partisan grounds and also adopts the Kelley arguments on numerical equality. The fourth group is headed by incumbent Congressman Doug Walgren and Jese Del Gre who challenge the makeup of the 14th district on racial grounds as well as adopting the position of the Kelley plaintiffs.


 We will first discuss the numerical equality issues.

 Beginning with Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), the Supreme Court shifted from its prior "hands-off" approach to the issue of reapportionment, and found that a state legislative apportionment challenge is justiciable under the Fourteenth Amendment. The Court gave substance to the constitutional standard in Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964), when it enunciated a "one man, one vote" theory of representation for state legislatures. Wesberry v. Sanders, 376 U.S. 1, 84 S. Ct. 526, 11 L. Ed. 2d 481 (1964), followed soon after and applied the same general approach to congressional reapportionment, relying for authority on Art. I, § 2, of the United States Constitution. *fn4"

 In Wesberry, the Court said that districts should be drawn so that "as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's." Id. at 7-8, 84 S. Ct. at 530 (footnote omitted). The Court surveyed the history behind Art. I, § 2 of the Constitution, and concluded that "while it may not be possible to draw congressional districts with mathematical precision, that is no excuse for ignoring our Constitution's plain objective of making equal representation for equal numbers of people the fundamental goal for the House of Representatives." Id. at 18, 84 S. Ct. at 535.

 Similarly, in Reynolds, the Court held that "the Equal Protection Clause requires that a State . . . construct districts . . . as nearly of equal population as is practicable." 377 U.S. at 577, 84 S. Ct. at 1390. Again, the Court recognized "that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement." Id. (footnote omitted).

 Five years later, in Kirkpatrick v. Preisler, 394 U.S. 526, 89 S. Ct. 1225, 22 L. Ed. 2d 519 (1969), the Court held that the Wesberry standard of "as nearly as practicable" required the state to "make a good-faith effort to achieve precise mathematical equality." Id. at 530-31, 89 S. Ct. at 1229. If, despite that effort, population variances resulted, the state "must justify each variance, no matter how small." Id. In that case, the deviation between the most and least populous districts was 5.97% or, in absolute numbers, 25,802 persons.

 In Preisler, the state suggested that a fixed numerical variance, if small enough, should be considered de minimis so as to satisfy the "as nearly as practicable" standard, and that its 5.97% deviation fell within this range. The Court rejected this argument, stressing that it would be arbitrary to choose a particular cut-off point, and such a selection would "encourage legislators to strive for that range rather than for equality as nearly as practicable." Thus, only limited population variances are permitted, "which are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown." Id. The state then offered reasons to support the variances, including economic and social interests, reasonable legislative compromises, partisan politics, avoidance of fragmentary local subdivisions, and geographic compactness. The Court found such justifications wanting and struck down the reapportionment.

 That same day, the Court handed down its opinion in Wells v. Rockefeller, 394 U.S. 542, 89 S. Ct. 1234, 22 L. Ed. 2d 535 (1969), which invalidated New York's reapportionment plan. There, the state created seven subdivisions which were not equal in population but, within each region, the congressional districts contained approximately the same number of people. As a result, however, the districts in one subdivision were different in size from those in another. The Court stated that the general command of Preisler is "to equalize population in all the districts of the State and is not satisfied by equalized population only within defined sub-states." Id. at 546, 89 S. Ct. at 1237. Thus, that scheme was also held constitutionally deficient.

 Numerical equality was the standard for both state legislative and congressional reapportionment until Mahan v. Howell, 410 U.S. 315, 93 S. Ct. 979, 35 L. Ed. 2d 320 (1973). There, the Court announced that the "absolute equality" test of Preisler would not apply to state legislative districting, since it might "impair the normal functioning of state and local governments." Id. at 323, 93 S. Ct. at 984. Rather, the objective for state legislative reapportionment "must be 'substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the States.'" Id. at 322, 93 S. Ct. at 984, quoting Reynolds v. Sims, 377 U.S. 533, 579, 84 S. Ct. 1362, 1390, 12 L. Ed. 2d 506 (1964).

 The dissent, on the other hand, argued that the same standard should apply for both types of reapportionment, even though the differences between legislative and congressional districting might allow certain state interests to be recognized in legislative, but not congressional, apportionment. Id. 410 U.S. at 340-41, 93 S. Ct. at 993. As the dissent said, "while the State may have a broader range of interests to which it can point in attempting to justify a failure to achieve precise equality in the context of legislative apportionment, it by no means follows that the State is subject to a lighter burden of proof or that the controlling constitutional standard is in any sense distinguishable." Id.

 A few months later, when the Court next considered congressional reapportionment in White v. Weiser, 412 U.S. 783, 93 S. Ct. 2348, 37 L. Ed. 2d 335 (1973), it was "not inclined to disturb" Kirkpatrick v. Preisler. Id. at 793, 93 S. Ct. at 2353. Yet, the Court did not "disparage" the state's interest in "maintaining existing relationships between incumbent congressmen and their constituents and preserving the seniority of [incumbents]." Id. at 791, 93 S. Ct. at 2352. Thus, the promotion ...

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