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VIETH v. COMMONWEALTH OF PENNSYLVANIA
April 8, 2002
RICHARD VIETH, NORMA JEAN VIETH, AND SUSAN FUREY, PLAINTIFFS
COMMONWEALTH OF PENNSYLVANIA, ET AL., DEFENDANTS
Before: Yohn, District Judge, Rambo, District Judge, Nygaard, Circuit
The opinion of the court was delivered by: Per Curiam:
OPINION AND ORDER OF THE COURT
The 2000 Census reported that Pennsylvania's total population was
12,291,054 persons. As a result of this population figure, and in
accordance with Article I, Section 2 and the Fourteenth Amendment to the
United States Constitution, Pennsylvania's congressional delegation was
reduced from twenty-one to nineteen representatives in Congress.*fn1
The loss of two congressional seats made it necessary to increase the
size of the existing districts by approximately 100,000 persons.
Additionally, because of shifts in population, some congressional
districts were over-populated while some were well under the ideal
population. Therefore, significant changes were made to the existing
Pennsylvania Senate Bill 1200 was introduced by Senators Brightbill and
Lemmond on November 16, 2001. Senators Brightbill and Lemmond are
members of the Republican Party. A competing plan, Senate Bill 1241 was
introduced by Democratic state senators Mellow, O'Pake, Wagner, Musto,
Kasunic, Fumo and Stout. On December 10, 2001, the Senate considered
amendments to Senate Bill 1200. A Republican amendment was ultimately
agreed to. The version of Senate Bill 1200 that eventually passed the
Senate contained a population deviation of twenty-four persons.
After an amendment by the Pennsylvania House of Representatives, that
chamber passed Senate Bill 1200 on December 12, 2001. The version of
Senate Bill 1200 that passed the House had a total population deviation
of nineteen persons.*fn2 It also maintained two minority-majority
districts in the Philadelphia area, created one open seat in the
southeastern part of the Commonwealth and paired two Democratic
incumbents in the same district. One Democratic incumbent was paired
against one Republican incumbent.
The Senate refused to concur in the amendments to Senate Bill 1200
offered by the House of Representatives. A Conference Committee was
appointed and a plan was eventually devised that contained a nineteen
person deviation. This Conference Committee Report on Senate Bill 1200
was passed by the Senate on January 3, 2002 and by the House of
Representatives later the same day. It was signed into law on January
Moreover, Act 1 splits eighty-four local governments, including
twenty-five counties, fifty-nine cities, boroughs or townships, as well
as forty-one wards. It also splits six voting precincts.
The United States Constitution requires that each congressional
district in a state contain equal population. See Wesberry v. Sanders,
376 U.S. 1, 18, 84 S.Ct. 526 (1864) (holding that Art. I, § 2 of the
Constitution requires that "as nearly as is practicable one man's vote in
a congressional election is to be worth as much as another's."). The
Supreme Court has been exceedingly clear in requiring lower courts to
balance population among the districts with precision. See Karcher v.
Daggett, 462 U.S. 725, 734, 103 S.Ct. 2653 (1983) ("there are no de
minimis population variations, which could practicably be avoided, but
which nonetheless meet the standard of Art. I, § 2 without
justification.'); Kirkpatrick v. Preisler, 394 U.S. 526, 531, 89 S.Ct.
1225 (1969) ("[T]he `as nearly as practicable' standard requires that the
State make a good-faith effort to achieve precise mathematical equality.
Unless population variances among congressional districts are shown to
have resulted despite such effort, the State must justify each variance,
no matter how small."). In a challenge to a congressional redistricting
plan, the plaintiff bears the burden of proving that the differences in
district-to-district population could have been reduced or eliminated
altogether by a "good-faith effort to draw districts of equal
population." Karcher, 462 U.S. at 730.
We find that the Plaintiffs have met their burden in this case.
First, it is undisputed that Act 1 has a deviation in population of
nineteen persons between the most populated and least populated
districts. Therefore, unless these deviations were unavoidable or
resulted despite a good faith effort to draw districts of equal
population, then the Defendants must prove a legitimate justification for
the deviations. The evidence conclusively demonstrates that this
population deviation was avoidable. Plaintiffs presented into evidence
"Alternative Plan 4" which had a minimum possible deviation —
districts that differ by only one person. Additionally, this plan
achieves zero deviation without splitting any precincts among
congressional districts and splits fewer municipalities than Act 1.
Witnesses presented by both parties testified that it would have been
relatively easy to take any plan or map and reach a point of zero
population deviation.*fn3 Indeed, the Defendants
themselves submitted a
map with zero population deviation. Thus, the nineteen person deviation
in Act 1 was avoidable.
Nor can the deviation contained in Act 1 be excused based upon the good
faith of the Defendants. Indeed, we find that the testimony of defense
witness Dr. John Memmi satisfies the Plaintiff's burden here. Dr. Memmi
testified that he was in charge of drawing up the map that became Act 1.
He further stated that he drew the map under the direct supervision of
the Republican leadership. He began manipulating the map in order to get
the deviations lower. However, once he reached the point of a
nineteen-person deviation, he was told to stop manipulating the map:
Q: Actually, what I would like to know is if there was a
number that anybody said you could stop once you
got to number nineteen or number 18?
A: Every move that was made was done under the
supervision of my supervisors. And at the time,
the team involved the House Republican Caucus
Redistricting crew, some members thereof, the
Senate Republican Caucus Redistricting team,
members thereof. And the Supervisors sat there
while Bill Shower and I — Bill is a gentleman
with the House Republican Caucus. They observed
every census block move that we made. And we
continued to make moves, and were monitoring the
overall range. I should say we all monitored it,
of course, but ...
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