Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Senator Dominic Pileggi, et al. v. Carol Aichele

February 8, 2012

SENATOR DOMINIC PILEGGI, ET AL.
v.
CAROL AICHELE, IN HER OFFICIAL CAPACITY AS SECRETARY OF THE COMMONWEALTH OF PENNSYLVANIA JOE GARCIA, ET AL.
v.
2011 LEGISLATIVE REAPPORTIONMENT COMMISSION, ET AL. SAMUEL H. SMITH, IN HIS CAPACITY AS SPEAKER OF THE PENNSYLVANIA HOUSE OF REPRESENTATIVES
v.
CAROL AICHELE, IN HER CAPACITY AS SECRETARY OF THE COMMONWEALTH OF PENNSYLVANIA



The opinion of the court was delivered by: Surrick, J.

MEMORANDUM

Presently before the Court are Plaintiffs Senator Dominic Pileggi, Representative Michael Turzai and Louis B. Kupperman's Motion for Temporary Restraining Order, Preliminary and Permanent Injunction and for Convening of Three-Judge Panel, Plaintiffs Joe Garcia, Fernando Quiles and Dalia Rivera Matias's Motion for Temporary Restraining Order and for Convening of a Three-Judge Panel, and Plaintiff Samuel H. Smith's Motion to Convene a Three-Judge Panel.*fn1

For the following reasons, Plaintiffs' Motions will be denied.

I. BACKGROUND

A. Pennsylvania Reapportionment Scheme and Election Code

The Pennsylvania Constitution requires reapportionment of the Commonwealth's districts for all seats of the Pennsylvania General Assembly once every ten years. Pa. Const. art. II, § 17(a). Any reapportionment plan must comply with the constitutional standard of compact and contiguous districts, equal in population, without unnecessary divisions of counties or municipalities.*fn2 Article II, Section 17(a) requires that a Legislative Reapportionment Commission ("LRC") be established to develop a reapportionment plan that complies with these requirements. The LRC is to consist of five members, four of whom shall be the Majority and Minority Leaders of both the Senate and the House of Representatives, or deputies appointed by each of them, and a selected chairman. Pa. Const. art. II, § 17(b).

The LRC has ninety days from the date on which it becomes duly certified or from the date on which the population data for the Commonwealth as determined by the federal decennial census become available, whichever is later in time, to file a preliminary reapportionment plan. Pa. Const. art. II, § 17(c). The public has a thirty-day period to file exceptions to that preliminary plan. Id. If no exceptions are filed within thirty days, or if exceptions are filed and acted upon, the LRC's plan becomes final. Id. Once a plan is final, any aggrieved person may file an appeal from the final plan directly to the Pennsylvania Supreme Court within thirty days. Pa. Const. art. II, § 17(d). If an appellant establishes that a final plan is contrary to law, the Supreme Court is directed to issue an order remanding the plan to the LRC and directing the LRC to reapportion the Commonwealth in a manner not inconsistent with such order. Id. A reapportionment plan has the force of law only when the Supreme Court has "finally decided" an appeal, or when the time for filing an appeal has passed with no appeal being taken. Pa. Const. art. II, § 17(e). Once a reapportionment plan has the force of law, the districts provided in the plan are to be used in subsequent elections for the General Assembly until the next reapportionment is required. Id.

The Pennsylvania Election Code sets forth certain deadlines. For example, in a Presidential election year, such as the present year 2012, the primary is to be held on the fourth Tuesday of April. 25 P.S. § 2753(a). Candidates for all offices to be filled at the ensuing general election are to be nominated by this primary, and the vote for candidates for the office of President of the United States is to be cast at the primary. Id. In a Presidential election year, "every registered and enrolled member of a political party shall have the opportunity at the Spring primary in such years to vote his preference for one person to be the candidate of his political party for President." 25 P.S. § 2862. On or before the thirteenth Tuesday preceding the primary, the Secretary of the Commonwealth is to (1) provide to the board of each county a list of the political parties which are to nominate candidates at primaries and (2) send to the county board a written notice designating all of the offices for which candidates are to be nominated. 25 P.S. §§ 2861, 2865. Not earlier than twelve weeks, nor later than eleven weeks, before the primary, the county board is to publish in local newspapers a notice setting forth (1) the number of delegates and alternate delegates to the national convention of each party who are to be elected in the Commonwealth at large at the ensuing primary, (2) the number of delegates and alternate delegates who are to be elected at the primary, (3) the names of all public offices for which nominations are to be made, and (4) the names of all party offices, including that of members of the National Committee, if any, and Commonwealth Committee, for which candidates are to be elected at the primary ("Proclamations"). 25 P.S. § 2866. No later than fifty days before the day of the primary or seventy days before the day of the election, the county board is to commence sending military and overseas ballots to remote or isolated locations. 25 P.S. § 3146.5(a). No later than forty-five days before the day of the primary, the county board is to commence delivering official absentee ballots or special write-in absentee ballots when official absentee ballots have not yet been printed. Id. Applications for absentee ballots generally are to be received in the office of the county board not earlier than fifty days before the primary and not later than 5:00 p.m. of the first Tuesday prior to the day of the primary. 25 P.S. § 3146.2a. The Code provides for a number of other deadlines in addition to these.

B. Background Facts

1. The Parties in the Instant Action

Plaintiffs Dominic Pileggi, Michael Turzai and Louis B. Kupperman are citizens of, and registered voters in, the Commonwealth of Pennsylvania. (Compl. ¶¶ 4-6, ECF No. 1.)*fn3 Pileggi is a Pennsylvania state Senator, the Majority Leader of the Pennsylvania Senate and a member of Pennsylvania's 2011 LRC; Turzai is a Pennsylvania state Representative, the Majority Leader of the Pennsylvania House of Representatives and a member of Pennsylvania's 2011 LRC. (Id. at ¶¶ 4-5.)

Defendant Carol Aichele is the Secretary of the Commonwealth of Pennsylvania and Chief Election Official. (Id. at ¶¶ 7-8.) Secretary Aichele's duties, in her official capacity, include providing the county boards of elections with written notice of all offices for which candidates are to be nominated; determining the sufficiency of nominating petitions, certificates and papers of candidates; certifying to county boards of elections the names of candidates for primaries and elections; proclaiming election results; and issuing certificates of election to successful candidates. (Id. at ¶ 8.)

2. The 2001 Reapportionment Plan

On November 19, 2001, the existing LRC filed a final reapportionment plan. (Id. at ¶ 10.) This plan was approved by the Pennsylvania Supreme Court on February 15, 2002 ("2001 Plan"). (Id.) The 2001 Plan was based on census data from 2000 and has been in effect since approved. (Id. at ¶ 11.)

3. The 2011 Reapportionment Plan

In 2010, the federal decennial census was conducted. Plaintiffs allege that the data from this census reveal that, from 2000 to 2010, a population shift from western Pennsylvania to eastern Pennsylvania was a continuing trend from the 2000 census. (Id. at ¶ 12.)

Pursuant to Article 2, Section 17(a) of the Pennsylvania Constitution, in 2011, the LRC was assembled for the purpose of reapportioning the Commonwealth of Pennsylvania, based on the 2010 census data. Holt v. 2011 Legislative Reapportionment Comm'n, No. 7 MM 2012 (Pa. Feb. 3, 2012)("Pa. Sup. Ct. Op.") 10. On August 17, 2011, the LRC declared the 2010 census data to be in usable form, thereby triggering the ninety-day period for filing a preliminary reapportionment plan. Id. at 11. The LRC announced a preliminary reapportionment plan on October 31, 2011. Id. at 12. On December 12, 2011, the LRC adopted its final reapportionment plan for Pennsylvania ("2011 Plan"). Id.*fn4

Following the adoption of the 2011 Plan, twelve separate appeals were filed by Pennsylvania citizens claiming to be aggrieved. Pa. Sup. Ct. Op. 12. The Pennsylvania Supreme Court held oral argument on these challenges on January 23, 2011. Id. at 13. On January 25, 2012, the Pennsylvania Supreme Court, in a 4-3 decision, issued a per curiam order, in which it held that the final 2011 Plan was "contrary to law." Order, Pa. Sup. Ct. Op. ("Pa. Sup. Ct. Order") 5. The Supreme Court remanded the 2011 Plan to the LRC and directed it to reapportion the Commonwealth in a manner consistent with its Opinion, which would follow. Id. The Court ordered that the 2001 Plan "shall remain in effect until a revised final 2011 Legislative Reapportionment Plan having the force of law is approved." Id. at 5-6. The Pennsylvania Supreme Court has retained jurisdiction until it approves a final constitutional reapportionment plan. Id. In addition, the Court adjusted several of the 2012 election dates. Id. at 6. On February 3, 2012, the Pennsylvania Supreme Court issued an eighty-seven-page majority opinion. Pa. Sup. Ct. Op. Justices Saylor and Eakin each filed concurring and dissenting opinions, and Justice Orie Melvin filed a dissenting opinion.

The process has begun for moving the 2012 election forward. The Pennsylvania primary election is still scheduled to be held on April 24, 2012. (Feb. 6 Hr'g Tr. 14.) The first day to circulate nomination petitions was January 26, 2012. Pa. Sup. Ct. Order 6. Pursuant to the Pennsylvania Election Code, January 31, 2012 was the first day for counties to publish Proclamations in the newspaper. 25 P.S. ยง 2866. February 7, 2012 is the last day on which counties may publish Proclamations in the local newspapers. Id. February 14, 2012 is the last day to circulate and file nomination petitions for the offices of President of the United States, United States Senator, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.