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Joe Garcia, Fernando Quiles, and Dalia Rivera Matias v. 2011 Legislative Reapportionment Commission and Carol Aichele

April 5, 2013

JOE GARCIA, FERNANDO QUILES, AND DALIA RIVERA MATIAS
v.
2011 LEGISLATIVE REAPPORTIONMENT COMMISSION AND CAROL AICHELE,



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

MEMORANDUM

Presently before the Court are Defendant 2011 Legislative Reapportionment Committee's Motion to Dismiss (ECF No. 20), Defendant Carol Aichele's Motion to Dismiss (ECF No. 35), and Plaintiffs Joe Garcia, Fernando Quiles, and Dalia Rivera Matias's Motion for a Preliminary Injunction (ECF No. 19). For the following reasons, Defendants' Motions will be granted and Plaintiffs' Motion will be denied. *fn1

I. BACKGROUND

A. Pennsylvania's Legislative Reapportionment Scheme and Election Code The Pennsylvania Constitution requires the reapportionment of the Commonwealth's districts every ten years following the federal decennial census. Pa. Const. art. II, § 17(a). A Legislative Reapportionment Committee ("LRC") is assembled pursuant to this mandate. Id. The LRC consists of five members, four of whom shall be the majority and minority leaders of the Commonwealth's House of Representatives and Senate, or deputies appointed by each of them, and a selected chairman. Id. § 17(b). The LRC is charged with the duty of composing districts that are compact and contiguous, nearly equal in population, and without unnecessary divisions of counties and municipalities. Id. § 16.

A preliminary reapportionment plan must be filed by the LRC no later than ninety days from the date on which the LRC becomes duly certified, or the population data for the Commonwealth as determined by the federal decennial census becomes available, whichever is later in time. Id. § 17(c). The LRC has thirty days after filing the plan to make any corrections and the public has that same thirty day period to file exceptions to the plan. Id. Following the filing of any exceptions, the LRC has thirty days to consider those exceptions and revise the preliminary plan accordingly. Id. If no exceptions are filed within that thirty-day period, or if filed and acted upon, the reapportionment plan becomes final and has the force of law. Id. After the plan becomes final, any aggrieved person may file an appeal from the plan with the Pennsylvania Supreme Court within thirty days. Id. § 17(d). If an appellant establishes that a final plan is contrary to law, the Supreme Court remands the plan to the LRC, directing the LRC to reapportion the Commonwealth in a manner not inconsistent with the Court's order. Id. Once the Pennsylvania Supreme Court has decided any appeals, or when the last day for filing an appeal has passed with no appeals taken, the reapportionment plan has the force of law and the districts provided in the plan are used in elections to the General Assembly until the next required reapportionment. Id. § 17(e).

In a presidential election year, the general primary must be held on the fourth Tuesday in April. 25 Pa. Stat. Ann. § 2753(a). In 2012, the primary was held on April 24th. Candidates for all offices to be filled at the ensuing general election are nominated in this primary. Id. Pursuant to the Pennsylvania Constitution, the general election is held on the Tuesday following the first Monday of November in each even-numbered year. Pa. Const. art. VII, § 2. Accordingly, the general election took place on November 6, 2012. All of the seats in the House of Representatives and one-half of the State Senate seats were selected in the 2012 general election. All 203 seats in the House will again be up for election in November 2014. The Senate seats selected in 2012 are not up for election again until 2016. (Pls.' Supp. Mem. 17., ECF No. 63.)

B. The 2011 Reapportionment Plan

On April 19, 2011, the LRC was certified pursuant to Article 2, Section 17(a) of the Pennsylvania Constitution. (Pls.' Resp. to Aichele 3, ECF No. 46.) The members of the LRC are Senate Majority Leader Dominic Pileggi, Senate Minority Leader Jay Costa, House Majority Leader Mike Turzai, and House Minority Leader Frank Dermody. Holt v. 2011 Legislative Reapportionment Comm'n, 38 A.3d 711, 719 (Pa. 2012). The Pennsylvania Supreme Court appointed the Honorable Stephen J. McEwen, Jr., President Judge Emiritus of the Superior Court of Pennsylvania as chairman of the LRC. Id.

On March 9, 2011, the United States Census Bureau released its 2010 census data for Pennsylvania. (Pls.' Resp. to Aichele 4.) The data had to be processed by Legislative Data Processing Center and a private contractor, Citygate GIS, before it could be used. See Holt,38

A.3d at 719. The census data did not become available in "usable" form until August 17, 2011. Id. Defendant LRC argues that this triggered the ninety-day period for filing a preliminary redistricting plan. (LRC's Reply 6, ECF No. 47.)*fn2 Following public hearings in Allentown and Pittsburgh, the LRC announced a preliminary redistricting plan on October 31, 2011. Holt,38

A.3d at 720. Public hearings were held in Harrisburg on November 18 and 23, 2011 to entertain citizens' comments and objections to the preliminary redistricting plan. Id. A Final Plan was approved by the LRC on December 12, 2011. Id.

Following the approval of the 2011 Final Plan, twelve appeals were filed with the Pennsylvania Supreme Court challenging the constitutionality of the plan, and preventing the plan from having the force of law. Id. The court heard oral argument on the appeals on January 23, 2012. Id.at 720-21. On January 25, 2012, the court issued a per curiam order declaring that the final 2011 Plan was contrary to law. Id. at 715-16. The court remanded the matter to the LRC with orders to reapportion the Commonwealth in a manner consistent with the court's opinion. The opinion was filed on February 3, 2012. Id. The court also declared that the 2001 Legislative Reapportionment Plan ("2001 Plan") "would remain in effect until a revised final 2011 Legislative Reapportionment Plan having the force of law is approved." Id. at 716.

The LRC's Revised Preliminary Plan was filed on April 12, 2012, with the Pennsylvania Department of State. (Pls.' Supp. Mem. 12.) On June 8, 2012, after hearings, a Final Reapportionment Plan (the "2012 Plan") was issued by the LRC. (Id.) Thirteen appeals were filed with regard to the 2012 Plan. (Id.) The Supreme Court consolidated these appeals under one caption, In Re: Petitions for Review Challenging the Final 2011 Reapportionment Plan Date June 8, 2012, Nos. 126-134 MM 2012, 39-42 WM 2012. (Id.) *fn3 Oral argument was held on these appeals on September 13, 2012. (Aichele's Reply 4-5, ECF No. 49.) As of this date, the Supreme Court has not issued an opinion. The 2012 primary election and the general election were both conducted under the 2001 Plan. (Pls.' Resp. to Aichele 6.)

C. Procedural History

1. Plaintiffs' Complaint

On February 2, 2012, Joe Garcia, Fernando Quiles, and Dalia Rivera Matias, registered Latino voters, filed the instant action against the 2011 LRC and Carol Aichele in her official capacity as Secretary of the Commonwealth of Pennsylvania. (Compl. ¶¶ 1, 10, 12, ECF No. 1.)

Plaintiffs Joe Garcia and Fernando Quiles reside in Philadelphia, Pennsylvania in the current 180th House District, and the current 2nd Senatorial District. (Id. at ¶¶ 7-8.) Plaintiff Dalia Rivera Matias resides in Allentown, Pennsylvania in the current 132nd House District and the 16th Senatorial District. (Id. ¶ 9.) Defendant 2011 LRC is charged with redistricting and reapportioning the Commonwealth's House and Senate Districts after each federal decennial census. (Id. at¶ 10.) Defendant Carol Aichele, as Secretary of the Commonwealth, is Pennsylvania's Chief Election Officer and is responsible for overseeing elections in Pennsylvania. (Id. at ¶ 12.)

In their Complaint, Plaintiffs contend that the 2001 Plan was malapportioned in light of the population shifts reflected in the 2010 federal decennial census. Based on the 2010 census, Plaintiffs claim that the ideal population for Pennsylvania State Senate districts is 254,048, and 62,573 for House districts. (Id. at ¶ 35.) Plaintiffs cite to four state legislative districts that are malapportioned: (1) Senate District 44 in Berks, Chester, and Montgomery Counties is over-populated by 34,626 persons, representing a deviation of 13.63 percent; (2) Senate District 38 in Allegheny and Westmoreland Counties is under-populated by 40,058 persons, or 15.77 percent; (3) House District 13 in Chester and Lancaster Counties is over-populated by 15,204 persons, or 24.3 percent; and (4) House District 24 in Allegheny County is under-populated by 11,569 persons, or 18.49 percent. (Id. at ¶¶ 36-37.) All told, the deviation from the ideal district size under the 2001 Plan for the Senate is 29.4 percent, and 42.79 percent for the House. (Id.)

Plaintiffs also maintain that under the 2001 Plan, Latino voting strength is diluted. (Id. at ¶¶ 39-49.) Plaintiffs point to the substantial growth in the Latino population in Pennsylvania. (Id. at ¶ 23.) The results from the 2010 census reveal that Latinos comprise 5.7 percent of the Commonwealth's total population. (Id. at ¶ 24.) The Latino community represents over 12 percent of the Philadelphia's population, or 187,611 people. (Id. at ¶ 25.) The Latino population has grown by more than 45 percent in Philadelphia, outpacing the overall growth rate of the city. (Id. at ¶ 26.) In Allentown, Latinos comprise 42.8 percent of the city's population, and in Reading, 58.2 percent of the city's population. (Id.) Plaintiffs argue that Latino political representation has not kept pace with the rapid growth in the Latino population. (Id. at ¶ 29.) Plaintiffs cite to the fact that there is only one majority Latino House district, the 180th in Philadelphia, and no majority Latino Senate districts. (Id. at ¶ 28.) Plaintiffs argue that the "Latino community of Philadelphia County is sufficiently geographically compact to comprise a majority of persons in two House legislative districts," allowing Latino voters the opportunity to elect candidates of their choice. (Id. at ¶¶ 39-40.) Plaintiffs make similar claims with respect to the Latino communities in both Berks and Lehigh Counties. (Id. at ¶¶ 41-44.)

Based on the alleged malapportionment, and the substantial growth in the Latino population, Plaintiffs assert violations of the "one person, one vote" principle under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution (Count I), and a violation of Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973 (Count II). (Id. at ¶¶ 50-53.)

In order to remedy the constitutional and statutory violations, Plaintiffs seek the following relief: (1) a declaratory judgment that the existing Pennsylvania legislative districts are malapportioned, illegally dilute the voting rights of Latinos in Pennsylvania, and are unlawful, null and void; (2) a permanent injunction barring Defendants from calling, holding, supervising, or certifying any elections under the 2001 Plan; (3) a reasonable deadline for Defendants and appropriate state authorities to enact or adopt a redistricting plan that is not malapportioned and does not dilute Latino voting strength; and (4) in the event that Defendants and appropriate state authorities fail to enact valid ...


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