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September 13, 1982


The opinion of the court was delivered by: WEIS

WEIS, Circuit Judge.

 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 of "constituency-representative relations" is one justification the Court acknowledges as support for population deviations.

 In Weiser, the Court agreed with the district court that the reapportionment statute's percentage deviation of 4.13% was not "as mathematically equal as reasonably possible." 412 U.S. at 790, 93 S. Ct. at 2352. However, when faced with choosing between two alternative plans as a substitute, the Court adopted the plan that followed the general outline of the rejected state statute. In this respect, the Court observed that it was proper to "honor state policies in the context of congressional reapportionment," and that, when choosing among plans, "a district court should not preempt the legislative task nor 'intrude upon state policy any more than necessary.'" Id. at 795, 93 S. Ct. at 2355, quoting Whitcomb v. Chavis, 403 U.S. 124, 160, 91 S. Ct. 1858, 1878, 29 L. Ed. 2d 363 (1971).

 With these considerations in mind, the Court chose the plan with a.149% deviation, finding the variance tolerable because it "most clearly approximated the reapportionment plan of the state legislature, while satisfying constitutional requirements." Id. 412 U.S. at 796, 93 S. Ct. at 2355. Thus, although the Court reiterated its support of Preisler, a less than absolutely equal plan was acceptable -- the variance was in effect de minimis.

 Announced the same day was Gaffney v. Cummings, 412 U.S. 735, 93 S. Ct. 2321, 37 L. Ed. 2d 298 (1973), a legislative reapportionment case. The Court again noted the dichotomy with congressional redistricting, and said minor deviations were only permissible in legislative cases.

 Gaffney's reasoning, however, cannot easily be divorced from congressional reapportionment as well. For example, after recognizing that "minor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case . . . so as to require justification by the State," the Court said that this would be so, "if for no other reason than that the basic statistical materials which legislatures and courts usually have to work with are the results of the United States census taken at 10-year intervals . . . ." Id. at 745, 93 S. Ct. at 2327. The Court went on to add that these figures "are inherently less than absolutely accurate. Those who know about such things recognize this fact, and unless they are to be wholly ignored, it makes little sense to conclude from relatively minor 'census population' variations among legislative districts that any person's vote is being substantially diluted." Id. at 745-46, 93 S. Ct. at 2327-28.

 The record in the case at bar does not establish the precise error in the census figures, but it is generally conceded to be at least one percent. Although the Supreme Court has not accepted statistical census error as a reason for excusing mathematical equality in congressional redistricting, it is a fact that cannot be ignored. It would be inconsistent, to say the least, for a court to overlook this premise when faced with congressional reapportionment, but to be allowed to consider it with legislative districting.

 Another statement by the Gaffney court that is equally applicable to congressional districting is that the "census is more of an event than a process. It measures population at only a single instant in time. District populations are constantly changing . . . ." 412 U.S. at 746, 93 S. Ct. at 2328. Referring to the basic premise of one man, one vote, the Court continued, "if it is the weight of a person's vote that matters, total population . . . may not actually reflect that body of voters whose votes must be counted and weighed for the purposes of reapportionment, because 'census persons' are not voters." Id. (footnote omitted). It would defy logic if this court were to say that these factors did not hold true when dealing with congressional apportionment as well.

 Although Kirkpatrick v. Preisler stands for arithmetical absolutism in congressional reapportionment, indiscriminate reliance on its rigidity is a dubious exercise. It was this point that formed the basis for Judge Gibbons' dissent in Daggett v. Kimmelman, 535 F. Supp. 978 (D.N.J.1982), prob. juris. noted, 457 U.S. 1131, 102 S. Ct. 2955, 73 L. Ed. 2d 1347 (1982). In that New Jersey congressional reapportionment case, the state's plan produced a total deviation of.6984%, which the majority found to be neither equal "as nearly as practicable," nor justifiable for its slight deviation. Judge Gibbons reasoned, however, that insignificant "variances may be justified which do not achieve statistically significant dilutions of the relative representation of voters in larger districts when compared with that of voters in smaller districts." Id. at 984 (Gibbons, J., dissenting). As he read Kirkpatrick v. Preisler, it did not prohibit "toleration of de minimis population variances which have no statistically relevant effect on relative representation. A plus-minus deviation of 0.6984% falls within the latter category." Id.

 Justice Brennan, the author of the Preisler opinion, granted a stay from the Daggett court's order disapproving the reapportionment plan. In his opinion on the application for a stay, although carefully avoiding any expression on the merits, Justice Brennan found a reasonable probability that jurisdiction of the appeal would be noted and that "there is a fair prospect of reversal." As he saw the issue, Daggett "present[s] the important question whether Kirkpatrick v. Preisler requires adoption of the plan that achieves the most precise mathematical exactitude, or whether Kirkpatrick left some latitude for the . . . legislature to recognize the considerations taken into account by it as a basis for choosing among several plans, each with arguably "'statistically insignificant' variances from the constitutional ideal of absolute precision." The Supreme Court did note jurisdiction, and we may expect that it will consider the application of Preisler to minimal variations.

 This same issue is posed here. The deviation under Act 42,.2354% under the March census figures, is smaller than that in Daggett. The Manderino plan, H.B. 2142, had the lowest variation of any plan voted upon in either house,.0895%, and it is only.1459% less than Act 42. Thus, the assorted proposals the legislature had to select from differed in only an extremely minor degree.

 To hold that the legislature must adopt the plan with the least variation would effectively pre-empt its legislative prerogative. The district court in Drum v. Scott, 337 F. Supp. 588, 590 (M.D.N.C.1972), believed that Preisler and Wells "curtail but do not destroy, the 'de minimis' concept." The court chose not to read those cases to mean that "a state legislature must abdicate its responsibility to a cartographer with an adding machine." Id. at 591.

 The Supreme Court has never disapproved a reapportionment plan with as minimal a total deviation as that provided by Act 42. In Weiser, the challenged variation was 4.13%. There the court observed that "at some point or level in size" variances do import "invidious devaluation of the individual's vote and represent a failure to accord him fair and adequate representation." Id. 412 U.S. at 793, 93 S. Ct. at 2353. The Court also commented on the large size of congressional districts and that each percentage point of deviation represented about 5,000 people. In Weiser, the difference in absolute numbers was approximately 20,000.

 In the case at bar, however, under the figures supplied by the Census Bureau in March of 1981, the deviation in absolute numbers was 1,215, and even under the October revisions, it is only 2,060. These figures are also the extremes. The average deviations are 253 and 364, respectively. To further demonstrate how minimal the deviation actually is, only eight of the state's 23 districts exceed the average deviation using the March statistics, and nine districts do so under the revised October figures.

 As Justice Brennan pointed out in his dissent in White v. Regester, 412 U.S. 755, 780-81, 93 S. Ct. 2332, 2347, 37 L. Ed. 2d 314 (1973), demand for mathematical equality "rests neither on a scholastic obsession with abstract numbers nor a rigid insensitivity to the political realities of the reapportionment process." Equality has been required so that the "weight of a person's vote will not depend on the district in which he lives." Id.5

 After having carefully studied the relevant Supreme Court opinions, we are persuaded that the deviation here, using either the.2354% or.399% figure, falls within the category of a statistically insignificant variation that can have only a miniscule, immeasurable effect on relative representation. As such, we conclude that Act 42 complies with Preisler's requirement of mathematical equality insofar as that standard is realistically attainable.

 We do not disparage the constitutional interest in striving for population equality in congressional districting. The Court's decisions in Kirkpatrick v. Preisler and White v. Weiser have had a dramatic effect in Pennsylvania. As we noted earlier, the admonitions in those cases were clearly in the forefront of the legislature's considerations. Some appreciation of the effect of the Supreme Court's mandate may be derived from the results of the last three reapportionments. Under 1960 census figures, the deviation in reapportionment was 29.8954%. This was later reduced to 1.8%, using the 1972 census, and is now down to the present figure of less than one-half of one percent.

 We cannot overlook the fact that the census is a snapshot of the population, a body which is constantly shifting and changing its size. As one commentator put it, "census figures themselves are not accurate enough nor, except momentarily, recent enough to justify minute equalization." R. Dixon, "The Court, The People, and 'One Man, One Vote,'" in REAPPORTIONMENT IN THE 1970's, 17 (N. Polsby ed. 1971).

 Absolute mathematical equality cannot in fact be achieved because, on the date that Act 42 was enacted, the underlying census figures were not accurate. Births, deaths, migration, and census errors all contributed and undoubtedly will continue to do so during the next ten years.

 The inability to achieve precise mathematical equality, however, should not dissuade us from striving toward its goal -- equality in representation, insofar as that is practical. We do not abandon that quest, but remain faithful to the purposes and spirit of Preisler and Weiser by holding that the deviation in this case, under either set of figures, is so minor that a prima facie case requiring justification has not been made out. Further, a fair consideration of the record demonstrates that in adopting Act 42, the Pennsylvania legislature attempted in good faith to achieve substantial equality of population among the various districts, and at the same time attract sufficient support for passage.


 As we noted in our earlier opinion, somewhat different considerations come into play when claims of racial discrimination are appraised. Plaintiffs Miller and Ford contend that Act 42 reduced the voting strength of black citizens in the First, Second, Fifth, Seventh and Fourteenth districts and discriminated against them in violation of the Fourteenth and Fifteenth Amendments.

 State legislative districts may be equal or substantially equal in population and still be vulnerable under the Fourteenth Amendment. Gaffney v. Cummings, 412 U.S. at 751, 93 S. Ct. at 2330. In White v. Regester, 412 U.S. at 765, 93 S. Ct. at 2339, the Supreme Court stated that multi-member legislative districts could not be organized so as to invidiously cancel out or minimize the voting strength of racial groups. See also Gomillion v. Lightfoot, 364 U.S. 339, 81 S. Ct. 125, 5 L. Ed. 2d 110 (1960); Whitcomb v. Chavis, 403 U.S. 124, 91 S. Ct. 1858, 29 L. Ed. 2d 363 (1971). We think the same criteria should be applied to the redistricting accomplished by Act 42.

 To succeed in their claims, the plaintiffs must prove intentional discrimination. City of Mobile v. Bolden, 446 U.S. 55, 100 S. Ct. 1490, 64 L. Ed. 2d 47 (1980); Rogers v. Lodge, 458 U.S. 613, 102 S. Ct. 3272, 73 L. Ed. 2d 1012 (1982). If the claim is asserted under the Equal Protection Clause of the Fourteenth Amendment, the burden is the same. We find, however, that plaintiffs have failed to meet their obligation of proving invidious discrimination.

 We first consider the redistricting in the City of Philadelphia. As we have noted, the decrease in population in that city made it an obvious site for eliminating one congressional seat. The record establishes that the plaintiffs did not prove that this decision was based on anything other than neutral criteria nor did they show that it was discriminatory. We observed earlier that Act 42 increased the majority representation of black citizens in the Second district from 74.7% under the 1970 census, to 80% under the 1980 figures. The old First district, with a 44.7% black population, was combined with the old Third district of 32.4% black population to form a new First district with a total black population of 32.1%.

 It is generally accepted that to make a "safe seat" a discrete group should have a majority of approximately 65%. In re: Illinois Congressional Districts Reapportionment Cases, No. 81-C-3915, Slip op. at 19 (N.D.Ill.1982). In the City of Philadelphia, only one safe district, the Second, could practicably be created for the black population to have the required majority. To have reduced the percentage in the Second to benefit the First may have jeopardized the Second district seat and might well have been evidence of intent to discriminate. The redistricting in Philadelphia, therefore, must be seen as a preservation of the status quo of the black voters and not retrogression.

 The Fifth and Seventh districts are located in the southeastern part of Pennsylvania. The Fifth is substantially larger geographically, and borders the Seventh on its western boundary line. The situation in those districts differs from Philadelphia in that neither had a black majority or "safe seat" before the redistricting, and Act 42 does not change this.

 Under Act 42, the lower Delaware industrial corridor was moved from the Seventh to the Fifth congressional district. A portion of the City of Philadelphia was then added to the Seventh. The City of Chester, which has a 57% black population, was moved from the Seventh to the new Fifth district. The net result was that the new Fifth district increased its ratio of black population from 4.6% to 11.2%. In the new Seventh district -- in the Delaware River industrial corridor -- there was a reduction from 10.6% to 5.9% black population. Because the shifts in percentages of black population between the two districts cancelled each other out, from a numerical standpoint there is no substance to the plaintiffs' dilution claim.

 The plaintiffs argue, however, that they had a stronger community interest with white liberals and politically active black citizens in the districts as they were formerly bounded, particularly in the Seventh district. Much of the evidentiary material submitted by the plaintiffs established their satisfaction with their former congressman and their reservations about the incumbent in the district established under Act 42. These considerations, however, do not show a purposeful dilution of black voting strength.

 The statistics show that there could not be a majority black district formed in the area. We are not convinced by the evidence that the voting power of black citizens in either the Fifth or Seventh district has been unconstitutionally minimized because of the redistricting. The plaintiffs' preference for one incumbent over another is not an adequate basis for finding intentional racial voting dilution as warrants intervention by the court. As the Court in Bolden said, "in the absence of . . . an invidious purpose, a State is constitutionally free to redraw political boundaries in any manner it chooses." 446 U.S. at 63, 100 S. Ct. at 1497.

 The situation in the 14th district is even less compelling. That district was formed from three others and now incorporates all of the City of Pittsburgh, the adjoining City of Wilkinsburg, and certain municipalities to the west. Plaintiffs argue that if the district lines had been drawn to incorporate municipalities to the southeast, instead of the west, there would have been a higher percentage of black citizens in the 14th district. There has been no showing, however, that the increase would have produced a black majority district or that the legislature acted with intent to discriminate.

 The City of Pittsburgh had a 24% black population under the 1980 census figures, and a total population of 423,938. It is thus the predominant municipality in the 14th district. The old 14th had a black population ratio of 25.49% while the figure for the new one is 21.77%. This statistical change does not demonstrate purposeful discrimination, nor does the failure of the legislature to include within the 14th district the municipalities preferred by the plaintiff. In any event, it would not be possible to create a district in the Pittsburgh area with a black majority.

 We conclude, therefore, that in each of these three instances, plaintiffs Miller, Ford and Del Gre have not demonstrated purposeful intent to discriminate, nor dilution of minority voting strength.


 Plaintiff Simon and those joining with him have an additional claim of their own. Simon complains that Westmoreland County, which is located in the western part of the state, has historically been included in one congressional district and has been its hub. Act 42, however, divides the county among three separate districts. As a result, plaintiffs assert that they and the citizens of Westmoreland County do not have the advantages of a single congressman who would be sensitive to their needs.

 In a sense, the complaints of the Simon plaintiffs have some similarities to those of Miller -- the disruption of previously established, and favorably regarded, representation patterns. It is obvious that the situation in which Westmoreland County finds itself is the result of the legislature's decision to tailor the congressional districts to provide some assistance to a Republican incumbent in his contest with his Democratic opponent. In addition, most of Westmoreland County was included in a district which resulted in two Democratic incumbents opposing each other. In sum, Westmoreland County was the victim of gerrymandering.

 As we stated earlier, simply splitting the county into different districts does not amount to a constitutional violation, nor has the Supreme Court condemned gerrymandering as such. Although the court might have designed districts that were more compact and contiguous, that would not necessarily have guaranteed that all of Westmoreland County would be in one district.

 In any event, the test is not whether a better plan could have been designed, but whether Act 42 passes constitutional muster. We may not disapprove a plan simply because partisan politics had a role in its creation. That politics played a part is demonstrated by the constituency-representation result, viz., 87.7% Republican, 68.2% Democratic. However, it seems fair to conclude that a Republican sponsored Bill would have to make some political accommodation to a Republican legislature in order to obtain sufficient votes for passage. The Supreme Court has often reminded the federal courts that "state legislatures have primary jurisdiction over legislative reapportionment." White v. Weiser, 412 U.S. at 795, 93 S. Ct. at 2354. "Districting inevitably has sharp political impact and inevitably political decisions must be made by those charged with the task." Id. at 796, 93 S. Ct. at 2355. "Politics and political considerations are inseparable from districting and apportionment." Gaffney v. Cummings, 412 U.S. at 753, 93 S. Ct. at 2331.

 Our role is not to insure that the Legislature has come up with the best plan -- only that the one enacted passes minimal constitutional scrutiny. We understand the complaints of the Westmoreland County plaintiffs, but we are not empowered to remedy them under the guise of finding constitutional deficiencies when none exist. The remedy lies in the ballot box, not in a federal courthouse. We conclude that the contentions of the Westmoreland County plaintiffs must be rejected.

 Having found that Act 42, despite its faults and deficiencies, meets the constitutional threshold, our task is completed. We therefore deny the plaintiffs' request for permanent injunction and enter judgment for the defendants.

 An appropriate order will be entered.


 1. This case raises issues under Article I, § 2 of the United States Constitution and Amendments 1 and 14 of the United States Constitution, and the court has jurisdiction over this matter under Title 28 U.S.Code §§ 1343(3), 2201, 2202, and 2284, and Title 42 U.S.Code §§ 1982 and 1988.

 2. In December 1975, Congress enacted P.L. 94-171, 13 U.S.C. § 141. This statute elaborates upon the Constitutional mandate that a population census be taken every ten years.

 3. P.L. 94-171 states, in pertinent part:


"The tabulation of total population by States . . . as required for the apportionment of Representatives in Congress among the several States shall be completed within 9 months after the census date and reported by the Secretary to the President of the United States."

 13 U.S.C. § 141(b).

 4. Federal law provides further that the President shall utilize these data to determine the number of representatives to which each State would be entitled, and to communicate this determination to the Clerk of the House of Representatives, who, in turn, informs the Governor of each state. 2 U.S.C. § 2a.

 5. 13 U.S.C. § 141(c) provides further that the tabulation of population for Congressional reapportionment "shall be completed by [the Secretary of Commerce] as expeditiously as possible after the decennial census date and reported to the Governor of the State . . . and to the officers or public bodies having responsibility for legislative apportionment and districting of such State." In addition, this statute requires that these figures be "completed, reported, and transmitted to each respective State within one year after the decennial census date."

 6. In Pennsylvania, the General Assembly is the "public body having responsibility for Congressional districting." This body, by the action of the President Pro Tem of the Senate and the Speaker of the House, designated Richard E. Campbell, the Executive Director of the Legislative Data Processing Center, as the liaison with the U.S. Bureau of the Census and the official recipient of the reapportionment population figures.

 7. The Legislative Data Processing Center was established in 1967 as a non-partisan agency of the State Legislature that provides data processing services to the majority and minority caucuses of both the State Senate and the State House of Representatives.

 8. Pursuant to his delegated responsibility, Mr. Campbell traveled to the offices of the U.S. Bureau of the Census on March 25, 1981 to pick up the reapportionment population figures. These data were converted from a census tract basis to a political subdivision basis by agents of the Legislative Data Processing Center and were utilized as the data base for both state legislative apportionment and Congressional redistricting.

 9. 1980 census figures indicate that Pennsylvania gained population to a lesser extent than other states and, accordingly, the Congressional Delegation of Pennsylvania was to be reduced from 25 to 23.

 10. The information provided by the Census Bureau to the Legislative Data Processing Center indicated that the total population of Pennsylvania, under the 1980 census, was eleven million eight hundred sixty-six thousand seven hundred twenty-eight (11,866,728).

 11. On October 22, 1981 the Director of the Bureau of the Census forwarded revised census figures to the Secretary of Commonwealth of Pennsylvania with carbon copies directed to eleven individuals, ten of whom work in some branch of the Pennsylvania State Government. An attachment to the letter indicated that the provisions would appear in the final 1980 Census Report. Copies of the letter were sent to Mr. Joseph H. Myers, Coordinator, Public Library State Aid, Bureau of Library Development; Mr. Harold E. Myers, Director, Bureau of Municipal Services, Pennsylvania Department of Transportation; Mr. Robert K. Bloom, Acting Secretary of Revenue; Mr. Harry Yaverbaum, Deputy Auditor General; Mr. J. Phil Doud, Director, Bureau of Municipal Audits; Dr. Harris Reynolds, Pennsylvania Department of Education; Ms. E. W. Rickenbach, Director of Liquor Licensing, Pennsylvania Liquor Control Board; Mr. Ronald Kresge, Pennsylvania Department of Commerce; Mr. Murray Dickman, Deputy Executive Assistant to the Governor; Mr. Richard E. Campbell, Executive Director, Pennsylvania Legislative Data Processing Center; and Ms. Nathalie Sato, BMS, Office of Budget and Administration, Governor's Office.

 12. The information forwarded by the Census Bureau to the Legislative Data Processing Center indicated that the total population of Pennsylvania, under the 1980 Census, was revised to eleven million eight hundred sixty-three thousand eight hundred ninety-five (11,863,895).

 13. After the State Legislature had been reapportioned but before Congressional redistricting had occurred, Mr. Campbell was one of the state officials who received notice from the U.S. Bureau of the Census that the earlier population figures released for 17 municipalities had been revised. These revisions did not include the racial composition of the affected municipalities. The notice was silent as to whether or not these revisions should be incorporated into the data base utilized in reapportionment.

 14. Mr. Campbell determined that these changes were not applicable to the data base used for reapportionment. He based this determination on the fact that the figures had not been received within one year of the census date, April 1, 1980. Furthermore, because the notice specifically stated that these revisions would be included in the final population reports for the States, Mr. Campbell concluded that the point of this notice was merely to provide advance notice to the States, rather than a direction to make changes retroactively.

 15. Mr. Campbell made this determination without consulting any members of the General Assembly or staff members thereof. He did not inform any of these individuals of his receipt of this notice until Act 42 was enacted into law, and only then in response to an inquiry.

 16. Under the Pennsylvania Constitution, the legislature was mandated to preserve compactness, county boundaries where possible and communities of interest in legislative redistricting.

 17. The General Assembly and reapportionment drafters have knowledge of census data. Documents, facilities and equipment are made available by the Legislative Data Processing Center.

 18. The General Assembly and drafters of reapportionment plans have knowledge of pronouncements of federal courts which present detailed standards by which actions are judged and what factors may legitimately motivate redistricting decisions.

 19. Between August 1981 and March 4, 1982 approximately 140 Congressional Redistricting Plans were run by the Legislative Data Processing Center under the direction of Richard Campbell.

 20. The Pennsylvania General Assembly voted on approximately eleven (11) Congressional Redistricting Plans prior to the enactment of Act 42. This figure does not include all amendments to each bill voted on or plans that were re-introduced.

 21. Act 42 was passed by the Pennsylvania General Assembly and signed into law by the Governor of Pennsylvania on March 4, 1982. 22. Under the census data supplied in March of 1981, the ideal district population in Pennsylvania was Five Hundred Fifteen Thousand Nine Hundred Forty-four (515,944). Under such census data, the deviation from the ideal district under Act 42 is as follows: DISTRICT DEVIATION 9 -514 10 -502 5 -416 4 -372 13 -237 1 -237 11 -215 7 -178 16 -112 2 -46 17 -44 12 -29 6 8 23 32 22 35 20 84 18 124 19 157 3 210 8 352 15 548 14 667 21 701


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