Vieth v. Pennsylvania, 1:CV-01-2439.

• Decision Date: 24 January 2003
• Docket Number: No. 1:CV-01-2439.,1:CV-01-2439.
• Citation: 241 F.Supp.2d 478
• Parties: Richard VIETH, Norma Jean Vieth, and Susan Furey, Plaintiffs v. COMMONWEALTH OF PENNSYLVANIA, et al., Defendants
• Court: U.S. District Court — Middle District of Pennsylvania

241 F.Supp.2d 478

Richard VIETH, Norma Jean Vieth, and Susan Furey, Plaintiffs v. COMMONWEALTH OF PENNSYLVANIA, et al., Defendants

No. 1:CV-01-2439.

United States District Court, M.D. Pennsylvania.

January 24, 2003.

Robert B. Hoffman, Reed Smith LLP, Harrisburg, PA, Paul M. Smith, Thomas J. Perrelli, Bruce V. Spiva, Daniel P. Mach, Brian P. Hauck, Jenner & Block, L.L.C., Washington, DC, for Richard Vieth, Norma Jean Vieth.

J. Bart DeLone, office of Atty. Gen, Harrisburg, PA, for Commonwealth of Penn, Mark S. Schweiker, Kim Pizzingrilli, Richard Filling, Weaver.

John P. Krill, Jr., Linda J. Shorey, Jason E. Oyler, Julia M. Glencer Kirkpatrick and Lockhart, LLP, Harrisburg, PA, for Robert C. Jubelirer, Matthew J. Ryan, Republican Caucus of Pennsylvania House of Representatives.

Tom Lingenfelter, Doylestown, PA, pro se.

Lawrence J. Moran, Edwin A. Abrahamsen, James Joseph O'Connor Abrahamsen, Moran & Conaboy, P.C, Scranton, PA, Mark A. Packman, Lara H. Schwartz, Aaron R. Lancaster, Filomena D'Elia, Gilbert Heintz & Randolph LLP, Washington, DC, for Senator Robert J. Mellow.

Paul M. Smith, Thomas J. Perrelli, Bruce V. Spiva, Daniel P. Mach, Brian P. Hauck, Jenner & Block, L.L.C, Washington, DC, for Susan Furey.

Deborah R. Willig, Willig, Williams & Davidson, Philadelphia, PA, Christopher B. Craig, Harisburg, PA, Mark A. Aronchik, Hangley, Aronchick, Segal & Pudlin, Philadelphia, PA, for Casey for Governor Committee, Rendell for Governor Committee, Pennsylvania Democratic Party.

OPINION AND ORDER OF THE COURT

PER CURIAM.

Before the court are Plaintiffs' motion to impose remedial districts and Defendants' motion for summary judgment. The parties have briefed the issue, as has amicus curiae. Additionally, the parties have presented oral argument on the instant motion. Accordingly, the matter is ripe for disposition.

I. Background

This case involves an ongoing challenge to Pennsylvania's congressional redisricting effort. The Commonwealth initiated the redistricting process in response to the year 2000 decennial census which indicated that Pennsylvania would lose two seats in Congress due to shifts in the national population. Accordingly, the Commonwealth enacted its initial redistricting plan. That plan has been referred to throughout this litigation as Act 1.

Shortly thereafter, Plaintiffs initiated the instant suit seeking to have Act 1 declared unconstitutional, based on the following constitutional doctrines: (1) as an unconstitutional gerrymander in violation of the Fourteenth Amendment to the United States Constitution; (2) as a violation of the principal of the one person-one vote doctrine as that doctrine is embodied in Article I and the Fourteenth Amendment Equal Protection Clause; (3) as a violation of the Privileges and Immunities Clause of the Fourteenth Amendment; and (4) as a violation of Plaintiffs' right to political association pursuant to the First Amendment. In accordance with the requirements of 28 U.S.C. § 2284, Chief Judge Edward Becker of the United States Court of Appeals for the Third Circuit appointed the present three judge panel to hear the challenge.

By an order dated February 22, 2002, the court dismissed all of Plaintiffs' claims, save for the one person-one vote claim. See Vieth v. Pennsylvania, 188 F.Supp.2d 532 (M.D.Pa.2002) [hereinafter "Vieth I"]. On March 11 and 12, 2002, the court held an evidentiary hearing on that claim. On April 8, 2002, the court issued an opinion and order in which a majority of the court held that Act 1 violated the dictates of one person-one vote and enjoined its implementation. See Vieth v. Pennsylvania, 195 F.Supp.2d 672, 679 (M.D.Pa.2002) [hereinafter "Vieth II"]. Additionally, the court granted the Pennsylvania General Assembly three weeks to submit a plan that would remedy the constitutional deficiencies in Act 1. Id.

Accordingly, on April 17, 2002, the General Assembly enacted a revised congressional redistricting plan. The next day, Governor Schweiker signed into law the new plan, Act 34. That bill repealed Act 1 and replaced it with Act 34's boundaries. Defendants then petitioned the court to stay its decision regarding Act 1 and to allow the 2002 congressional elections to proceed under Act 1's boundaries. Because primary elections were set to be held on May 21, 2002, the court agreed to stay its decision regarding Act 1 in order to allow the primary election to take place as scheduled. Therefore, Act 34 was not in operation for the congressional elections that took place in November of 2002. However, Act 34 is scheduled to govern the next round of congressional elections in November of 2004.

Ostensibly, Act 34 is a zero-deviation congressional redistricting plan. That is, the district-to-district populations vary by only one person, the minimum variation given that Pennsylvania's population does not divide into nineteen even districts. On April 22, 2002, Plaintiffs filed a motion for the court to impose remedial districts or, in the alternative, to begin remedial hearings. Through information presented in that motion, the court learned for the first time of a decision by the Court of Common Pleas for Armstrong County, Pennsylvania. That decision was issued on March 15, 2002—after enactment of Act 1, but before Act 34's enactment. The decision effectively altered the boundary between two voter precincts in Armstrong County—South Buffalo District Western and South Buffalo District Eastern. Those two precincts also represented the line dividing the 3rd and 12th Congressional Districts under both Act 1 and Act 34. The alteration had the effect of moving fortynine people from the 12th Congressional District to the 3rd Congressional District. Apparently, this would have resulted in Act 34 having a deviation of ninety-seven between its most and least populated districts. This number would have represented a deviation over fives times greater than that in Act 1. On May 16, 2002, the Commonwealth enacted another statute, Act 44, seeking to retroactively rescind the Armstrong County Court's ability to alter voter precinct boundaries.

The Board of Elections for Armstrong County then petitioned the Armstrong County Court of Common Pleas to vacate its decision altering the voter precinct boundary. By an order dated July 29, 2002, the Armstrong County Court of Common Pleas denied the motion to vacate its decision. Eventually, this court scheduled a hearing for January 9, 2003 for the parties to present oral argument regarding whether Act 34 remedied the constitutional defect that the court found rendered Act 1 infirm.

In the interim, Governor Schweiker signed Act 150 into law on December 9, 2002. That statute amended § 506 of the Pennsylvania Election Code to add the following statement:

In administering elections for the nomination and election of candidates for the United States House of Representatives and the General Assembly, county boards of election shall adhere to the following rule: Where an election district is used in or pursuant to a congressional redistricting statute or the final plan of the Legislative Reapportionment Commission to define the boundary of a congressional district or state legislative district, the boundary of such election shall be the boundary existing and recognized by the Legislative Reapportionment Commission for the adoption of its final plan. The boundaries of the Congressional districts, as established by statute, and state legislative districts as set forth in the final plan of the Legislative Reapportionment Commission shall remain in full force and effect for use thereafter until the next reapportionment or redistricting as required by law and shall not be deemed to be affected by any action taken pursuant to this title.

Therefore, Act 150 had the apparent effect of negating the alteration of the boundary dividing the 3rd and 12th Congressional Districts.¹ Defendants subsequently filed a motion for summary judgment on December 20, 2002. On December 30, 2002, the court issued an order indicating that the parties should be prepared to present oral argument on this motion at the January 9 hearing and that Plaintiffs should file their brief in opposition to summary judgment before the date of the hearing. On January 7, 2002, Plaintiffs filed their response to Defendants' summary judgment motion. On January 9, 2002, the court held its hearing.

The court's order of April 8, 2002 gave Defendants a period of time to "enact and submit for review and final approval by this Court, a congressional redistricting plan in conformity with this opinion." See Vieth II, 195 F.Supp.2d at 679. In response, the Commonwealth enacted Act 34. In accordance with the matters discussed at the January 9 hearing, the court finds that Act 34 sufficiently remedies the constitutional deficiencies of Act 1. Our hearing, was basically a review of Act 34 and we are now giving final approval to it. For the reasons stated below, the court finds that Act 34 does not violate any constitutional doctrine. The court, therefore, will deny Plaintiffs' motion to impose remedial districts. This decision renders Defendants' motion for summary judgment moot. The court, therefore, will not address that motion.

II. Analysis

A. Population Deviation

Article I, § 2 of the United States Constitution requires that members of Congress be chosen with equal representation for equal number of people. Wesberry v. Sanders, 376 U.S. 1, 7-8, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). This constitutional mandate, commonly referred to as the one person-one vote principle, requires "that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's." Id. As the Supreme Court has explained:

[T]he "nearly as practicable" standard requires that the State make a goodfaith effort to achieve precise mathematical equality.... Unless population variances among congressional districts are shown to have resulted, despite such...