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Corman v. Torres

United States District Court, M.D. Pennsylvania

March 19, 2018

JACOB CORMAN, in his official capacity as Majority Leader of the Pennsylvania Senate, MICHAEL FOLMER, in his official capacity as Chairman of the Pennsylvania Senate State Government Committee, LOU BARLETTA, RYAN COSTELLO, MIKE KELLY, TOM MARINO, SCOTT PERRY, KEITH ROTHFUS, LLOYD SMUCKER, and GLENN THOMPSON, Plaintiffs
v.
ROBERT TORRES, in his official capacity as Acting Secretary of the Commonwealth, and JONATHAN M. MARKS, in his official capacity as Commissioner of the Bureau of Commissions, Elections, and Legislation, Defendants
v.
CARMEN FEBO SAN MIGUEL, JAMES SOLOMON, JOHN GREINER, JOHN CAPOWSKI, GRETCHEN BRANDT, THOMAS RENTSCHLER, MARY ELIZABETH LAWN, LISA ISSACS, DON LANCASTER, JORDI COMAS, ROBERT SMITH, WILLIAM MARX, RICHARD MANTELL, PRISCILLA McNULTY, THOMAS ULRICH, ROBERT McKINSTRY, MARK LICHTY, and LORRAINE PETROSKY, Intervenor-Defendants

         Three Judge Panel Convened Pursuant to 28 U.S.C. § 2284(a)

          BEFORE: Kent A. Jordan, Circuit Judge, United States Court of Appeals for the Third Circuit; Christopher C. Conner, Chief District Judge, United States District Court for the Middle District of Pennsylvania; Jerome B. Simandle, District Judge, United States District Court for the District of New Jersey.

          MEMORANDUM OPINION

          PER CURIAM.

         I. Introduction

         This case has its genesis in a hard-fought congressional redistricting battle waged in state and federal courts across the Commonwealth of Pennsylvania. The various antecedent lawsuits engaged Republican members of the Pennsylvania General Assembly, Democratic elected and appointed officials of the Commonwealth, Democrat and Republican activists, and numerous interested parties from within and outside the Commonwealth. The most recent events in that redistricting affray - namely, the Pennsylvania Supreme Court's decision invalidating the 2011 districting map as an unconstitutional partisan gerrymander under the Commonwealth's constitution and its further decision to issue a court-drawn map - are the subjects of the present lawsuit. The Pennsylvania Supreme Court granted the General Assembly an abbreviated period of time to enact remedial legislation, subject to the court's newly adopted legislative redistricting criteria. When the General Assembly failed to do so, the court imposed its own remedial redistricting map. League of Women Voters v. Commonwealth, No. 159 MM 2017, 2018 WL 936941, at *4 (Pa. Feb. 19, 2018).

         The Plaintiffs - Senator Jacob Corman, in his official capacity as Majority Leader of the Pennsylvania Senate; Senator Michael Folmer, in his official capacity as Chairman of the Pennsylvania Senate State Government Committee (the “State Legislative Plaintiffs”); and eight Republican members of Pennsylvania's delegation to the United States House of Representatives (the “Federal Congressional Plaintiffs, ”[1] and together with the State Legislative Plaintiffs, the “Plaintiffs”) - contend that the Pennsylvania Supreme Court's decisions to strike the 2011 map and to issue its own replacement map violate the Elections Clause of the United States Constitution. The Plaintiffs claim that the Pennsylvania Supreme Court usurped the General Assembly's authority to develop congressional districts and effectively gave the General Assembly only two days to pass remedial legislation. Unsurprisingly, the Defendants have a decidedly different view. They assert that the Pennsylvania Supreme Court gave the General Assembly precisely the amount of time it requested: three weeks to enact a replacement map. The substance and timing of the Pennsylvania Supreme Court's orders are the focus of the Plaintiffs' claims against Defendants Robert Torres, in his capacity as Acting Secretary of the Commonwealth of Pennsylvania, and Jonathan Marks, in his capacity as Commissioner of the Bureau of Commissions, Elections, and Legislation of the Pennsylvania Department of State (together, the “Executive Defendants”). The issues presented in this case touch on questions of high importance to our republican form of government. As the 2018 election cycle quickly progresses, these issues are of particular salience to the voters of the Commonwealth. The Plaintiffs' frustration with the process by which the Pennsylvania Supreme Court implemented its own redistricting map is plain. But frustration, even frustration emanating from arduous time constraints placed on the legislative process, does not accord the Plaintiffs a right to relief.

         The Plaintiffs seek an extraordinary remedy: they ask us to enjoin the Executive Defendants from conducting the 2018 election cycle in accordance with the Pennsylvania Supreme Court's congressional redistricting map and to order the Executive Defendants to conduct the cycle using the map deemed by the Pennsylvania Supreme Court to be violative of the Commonwealth's constitution. In short, the Plaintiffs invite us to opine on the appropriate balance of power between the Commonwealth's legislature and judiciary in redistricting matters, and then to pass judgment on the propriety of the Pennsylvania Supreme Court's actions under the United States Constitution. These are things that, on the present record, we cannot do.

         II. Background[2]

         Following the 2010 decennial census mandated by Article I, Section 2 of the United States Constitution, Pennsylvania's congressional delegation to the United States House of Representatives was reduced from nineteen seats to eighteen seats. The Pennsylvania General Assembly thereafter adopted a new congressional redistricting map, which was passed in December 2011 and signed into law by former Pennsylvania Governor Tom Corbett that same month (the “2011 Map”). The 2011 Map governed three primary elections, three general elections, and one special election, until January 22, 2018, when the Pennsylvania Supreme Court declared it to be “clearly, plainly and palpably” violative of the Commonwealth's constitution and hence invalid. (Compl. Ex. B. at 2.)

         The Pennsylvania Supreme Court's rulings came in a lawsuit filed in June 2017 in the Commonwealth Court of Pennsylvania by the League of Women Voters[3] and eighteen individual Pennsylvania voters (the “state-court petitioners”). Prior to the filing of that action, the 2011 Map had not been the subject of suit in federal or state court, though it was later challenged in two federal cases, Agre v. Wolf, ___ F.Supp.3d ___, 2018 WL 351603 (E.D. Pa. Jan. 10, 2018), and Diamond v. Torres, No. 17-5054 (E.D. Pa.).[4] The state-court petitioners named as respondents the Commonwealth; Michael Turzai, in his capacity as Speaker of the Pennsylvania House of Representatives; Joseph Scarnati, in his capacity as Pennsylvania Senate President Pro Tempore (together with Turzai, the “state legislative respondents”); the Pennsylvania General Assembly; Thomas Wolf, in his capacity as Governor of Pennsylvania; Michael Stack, III, in his capacity as Lieutenant Governor of Pennsylvania and President of the Pennsylvania Senate; and the Executive Defendants before us now. The eighteen individual plaintiffs - all registered Democrats - claimed that the 2011 Map was an impermissible partisan gerrymander that intruded on their rights under numerous provisions of the Pennsylvania Constitution. They specifically asserted that the 2011 Map violated the state constitution's guarantees of free expression, free association, and equal protection, in addition to its Free and Equal Elections Clause. League of Women Voters v. Commonwealth, ___ A.3d ___, No. 159 MM 2017, 2018 WL 750872, at *8 (Pa. Feb. 7, 2018).

         The Commonwealth Court stayed the matter pending an anticipated decision by the United States Supreme Court in a case alleging partisan gerrymandering. Id. at *9. On November 9, 2017, the Pennsylvania Supreme Court granted a request by the state-court petitioners for extraordinary relief, assumed plenary jurisdiction over the matter, lifted the stay, and instructed the Commonwealth Court to develop a factual record and issue proposed findings of fact and conclusions of law by December 31, 2017. Id. The Commonwealth Court proceeded as instructed, overseeing a flurry of pretrial activity, presiding over a five-day trial, and submitting recommended findings and conclusions to the Pennsylvania Supreme Court on December 29, 2017. Id. In the end, the Commonwealth Court concluded that “partisan considerations [were] evident in the enacted 2011 [Map]” and that, with use of “neutral, or nonpartisan, criteria only, it is possible to draw alternative maps that are not as favorable to Republican candidates as is the 2011 [Map].” Recommended Findings of Fact and Conclusions of Law, League of Women Voters v. Commonwealth, No. 261 MD 2017 (Pa. Commw. Ct. Dec. 29, 2017) at 126. But, the court said, the state-court petitioners had “not articulated a judicially manageable standard” to measure whether the 2011 Map “crosse[d] the line between permissible partisan considerations and unconstitutional partisan gerrymandering under the Pennsylvania Constitution.” Id. at 126-27. It thus concluded that the state-court petitioners “failed to meet their burden of proving that the 2011 [Map], as a piece of legislation, clearly, plainly, and palpably violate[d] the Pennsylvania Constitution.” Id. at 127.

         The Pennsylvania Supreme Court took the matter up immediately. It ordered expedited briefing and, when that was completed, held oral argument on January 17, 2018. Five days later, on January 22, 2018, it issued a two-page per curiam order striking the 2011 Map for “clearly, plainly and palpably violating]” the Pennsylvania Constitution and enjoining “its further use in elections for Pennsylvania seats in the United States House of Representatives[.]” (Compl. Ex. B. at 2.) Five of the seven justices agreed that the 2011 Map violated the Pennsylvania Constitution, but only four of seven agreed that the proper course of action, given the temporal proximity to the 2018 election cycle, was to enjoin use of the 2011 Map for the 2018 primary and general elections. The court established the following timeline:

• February 9, 2018 - deadline for the General Assembly to submit a remedial congressional redistricting map to the Governor;
• February 15, 2018 - deadline for the Governor to approve or reject a proposed remedial congressional redistricting map and for the Governor to submit an approved map to the Pennsylvania Supreme Court;
• February 15, 2018 - deadline for all interested parties to submit proposed remedial congressional redistricting maps to the Pennsylvania Supreme Court if the General Assembly did not pass, or the Governor did not sign, a proposed remedial congressional redistricting map;
• February 19, 2018 - deadline by which the Pennsylvania Supreme Court would adopt its own remedial congressional redistricting map if the General Assembly did not pass, or the Governor did not sign, a proposed remedial congressional redistricting map.

         The order excluded from its injunction against further use of the 2011 Map a special election for Pennsylvania's 18th Congressional District, which was held on March 13, 2018. It further instructed that any new congressional redistricting map had to “consist of: congressional districts composed of compact and contiguous territory; as nearly equal in population as practicable; and which do not divide any county, city, incorporated town, borough, township, or ward, except where necessary to ensure equality of population.” (Compl. Ex. B at 3.)

         The Pennsylvania Supreme Court indicated in its January 22 order that an opinion would follow. On February 7, 2018, two days before the General Assembly's February 9, 2018, deadline to submit a remedial redistricting map to the Governor, a 137-page majority opinion issued. The opinion announced the specific provision of the Pennsylvania Constitution violated by the 2011 Map - the Free and Equal Elections Clause.[5] League of Women Voters, 2018 WL 750872, at *1. It then set out a litany of statistical measures that it said demonstrated the 2011 Map subordinated the “traditional redistricting requirements” announced in the January 22 order to other motivations.[6] Id. at *50. The court held that finding alone was “sufficient to establish” that the 2011 Map contravened the Pennsylvania Constitution.[7] Id.

         Pennsylvania's Republican-dominated General Assembly and Democratic Governor were unable to agree on remedial congressional redistricting legislation by the deadlines mandated in the January 22 order. Consequently, in the absence of a legislatively-approved redistricting plan, the Pennsylvania Supreme Court formulated its own congressional redistricting map with the assistance of an appointed advisor. The court implemented its map by order of February 19, 2018. Although the parties and several amici submitted a number of proposed remedial maps, the court determined that its own remedial map was “superior or comparable to all plans submitted by the parties, the intervenors, and amici[.]” (Compl. Ex. J. at 7.)

         The Plaintiffs commenced this action on February 22, 2018, with the filing of a verified complaint and contemporaneous motion for emergency injunctive relief. They assert that the Pennsylvania Supreme Court's actions constitute a twofold violation of the Elections Clause of the United States Constitution. Specifically, they allege in Count I that the Pennsylvania Supreme Court's imposition of mandatory redistricting criteria violated the Elections Clause by usurping congressional redistricting authority vested exclusively in the General Assembly, and, in Count II, they allege that the court further violated the Elections Clause when it developed its own remedial map without providing the General Assembly an adequate opportunity to do so. The Plaintiffs entreat this Court to enjoin the Executive Defendants from implementing the Pennsylvania Supreme Court's remedial map for the upcoming election and to require the Executive Defendants to conduct the 2018 election cycle under the 2011 Map.

         We denied the Plaintiffs' request for a temporary restraining order and deferred consideration of the request for a preliminary injunction pending an expedited evidentiary hearing. Following a scheduling hearing on March 1, 2018, we granted the eighteen individual state-court petitioners (the “Intervenor-Defendants”) leave to intervene and participate in this action. The General Assembly is not a party to this suit, and it has not moved to intervene. The Executive Defendants moved to dismiss the verified complaint for lack of jurisdiction and for failure to state a claim upon which relief can be granted under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The Intervenor-Defendants (together with the Executive Defendants, the “Defendants”) moved for judgment on the pleadings on the same grounds under Rule 12(c). The Defendants' Rule 12 motions contend that we lack subject matter jurisdiction over the action because (i) the Plaintiffs do not have constitutional or prudential standing to bring their Elections Clause claims, and (ii) the Rooker-Feldman doctrine bars the Plaintiffs from attacking in our Court the judgment of the Pennsylvania Supreme Court. The Defendants also urge us to abstain from exercising jurisdiction over this case under the Colorado River and Younger abstention doctrines because the state-court proceedings are currently pending before the United States Supreme Court as a result of the state legislative defendants' emergency application to stay the Pennsylvania Supreme Court's judgment. The Defendants further argue in their Rule 12 motions that the Plaintiffs have failed to state a claim because (i) issue preclusion prohibits the Plaintiffs from litigating issues already decided by the Pennsylvania Supreme Court, (ii) judicial estoppel precludes the Plaintiffs from raising arguments inconsistent with ones raised by related parties in Diamond, a separate federal action challenging the constitutionality of the 2011 Map, and (iii) the Pennsylvania Supreme Court did not usurp the General Assembly's authority under the Elections Clause when it decided to remedy a violation of the Pennsylvania Constitution.

         On March 9, 2018, we conducted a full hearing on those motions and on the Plaintiffs' ...


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