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March 19, 1993


The opinion of the court was delivered by: BY THE COURT; ROBERT S. GAWTHROP, III

 Plaintiffs, Pennsylvania voters residing in the Counties of Chester, Montgomery, Lehigh, and Berks, have brought this action, claiming that defendants have violated their rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Plaintiffs contend that the 1991 Pennsylvania Final Reapportionment Plan, combined with a staggered term system and assignment of an incumbent senator to their district, unduly burdened their right to vote, in violation of equal protection and 42 U.S.C. § 1983. This court has federal question jurisdiction. 28 U.S.C. § 1343; 42 U.S.C. § 1983. Plaintiffs ask this court, inter alia, to order an election for the state senatorial seat in the new Forty-fourth Senatorial District, so that its voters may elect the state senator of their choice. Plaintiffs have named as defendants: Governor Robert P. Casey, Secretary of State Brenda K. Mitchell, Commissioner of Bureau of Elections William Boehm, State Senator Frank Pecora, and the members of the 1991 Pennsylvania Reapportionment Commission. Before the court are plaintiffs' and defendants' motions to dismiss *fn1" and for summary judgment. After submission of briefs and oral argument, I am convinced that plaintiffs' motion must be denied, and defendants' motions granted.


 Because of population changes shown by the decennial census, Pennsylvania state senatorial districts had to be redrawn. Accordingly, the 1991 Legislation Reapportionment Commission was established, pursuant to Article II § 17 of the Pennsylvania Constitution. The Commission was charged with developing a reapportionment plan for both Senate and Representative districts. Under the 1991 Final Reapportionment Plan ("Final Plan"), adopted by the Commission and approved by the Supreme Court of Pennsylvania, 49 of the 50 Pennsylvania senatorial districts were changed in geographic dimensions -- some slightly, some considerably, one totally -- to create new senatorial districts.

 Before the Final Plan was adopted, Senator Frank Pecora represented the 44th state senatorial district, located in Allegheny and Westmoreland Counties in western Pennsylvania. Senator Pecora was reelected as its senator in 1990 for a four-year term. Senator Michael M. Dawida represented the 43rd state senatorial district, also located in parts of Allegheny County. Senator Michael M. Dawida was elected as its senator in 1988 for a four-year term.

 After its adoption, the Final Plan merged the general area which had encompassed the 43rd and 44th districts in western Pennsylvania into one district and assigned it the number 43. The Final Plan also established a new senatorial district in eastern Pennsylvania from parts of the Counties of Berks, Chester, Lehigh, and Montgomery and assigned it the number 44. After the Final Plan, Senator Pecora continued to represent the 44th district, now in eastern Pennsylvania, until expiration of his term on the first Monday in January, 1995. Pennsylvania state senators serve staggered four-year terms, half being elected in each successively even-numbered year. Odd-numbered senatorial districts were scheduled to hold and did hold elections in 1992, and the new even-numbered senatorial districts are scheduled to hold elections in 1994.

 A number of interested individuals *fn2" and entities challenged the redistricting scheme, but the Supreme Court of Pennsylvania affirmed, and the Supreme Court of the United States denied certiorari. In re 1991 Pennsylvania Legislative Reapportionment Commission, 530 Pa. 335, 609 A.2d 132, cert. denied sub nom., Loeper v. Pennsylvania Legislative Reapportionment Commission, 121 L. Ed. 2d 33, 113 S. Ct. 66 (1992). *fn3" Meanwhile, Senator Pecora was busy running for Congress in the 18th Congressional District in Allegheny County, but was defeated.

 On November 23, 1992, the Pennsylvania State Senate, in addressing the representation of the 44th district, Senator Pecora participating, resolved that no vacancy existed in the new district. The Senate vote was tied at 25, which Lieutenant Governor Singel broke, favorably to Pecora. His qualifications to sit in a vicinage alien to where the people had chosen him were challenged. *fn4" The Pennsylvania State Senate, however, on January 5, 1993, judged him fit, he himself participating in that vote as well (25-24).

 Thus, in an apparently unique feat of legislative levitation and legerdemain, the 44th district was whisked 250 miles across the Commonwealth, replete with its own pre-elected senator, and plopped down upon the not entirely unsuspecting, but certainly unelecting, brand new batch of voters in eastern Pennsylvania, as some sort of senatorial manna from the Monongahela.

 The 1991 Final Plan substantially changed many senatorial districts. The 44th district is the only one devoid of voters who previously lived within the metes and bounds of its earlier embodiment. All other even-numbered senatorial districts contain at least 44.7% of the population from the district assigned that number previously. Therefore, unlike the other 24 even-numbered districts, none of the voters residing in the new 44th district, except Senator Pecora, have ever had the opportunity to vote for the state senator who is now representing them.

 On December 29, 1992, plaintiffs filed a complaint for equitable and other relief with this court, requesting, inter alia, that a special election for the 44th district be ordered. The parties stipulated to dismiss defendant, Governor Casey, and to dismiss all damage claims against the defendants, Boehm and Mitchell. The remaining defendants filed motions to dismiss, or in the alternative, for summary judgment.


 The essence of the constitutional challenge which brings this case to this court is to be found in the Equal Protection Clause, which states that no State shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Constitution, Amendment XIV, Section 1. In this context, the challenge is that because of the way the districts were configured, with Senatorial District 44 having been emplaced, upon an assemblage of citizenry, geographically and perhaps philosophically remote from where this particular Senator was elected, has deprived these citizens of the opportunity to elect their own chosen representative to the Pennsylvania Senate. Complaint, PP 48, 49.

 Plaintiffs argue that this inequality was compounded and exacerbated by the selection of an even number, 44, rather than an odd number, 43, for example. The significance of the numbers is that under the established procedure for staggered terms, this district's senator will remain in office until the end of 1994. Thus, the argument goes, the protracted and total denial of senatorial suffrage in the 44th district is ...

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