Agre v. Wolf, CIVIL ACTION NO. 17–4392

CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
Writing for the CourtSmith, Chief Circuit Judge
Citation284 F.Supp.3d 591
Parties Louis AGRE, et al. v. Thomas W. WOLF, Governor of the Commonwealth of Pennsylvania, Jonathan Marks, Commissioner of the Pennsylvania Bureau of Commissions, Elections, and Legislation, Robert Torres, Acting Secretary of the Commonwealth of Pennsylvania, Joseph B. Scarnati, III, President Pro Tempore of the Pennsylvania Senate, and Michael C. Turzai, Speaker of the Pennsylvania House of Representatives, in their official capacities.
Docket NumberCIVIL ACTION NO. 17–4392
Decision Date10 January 2018

284 F.Supp.3d 591

Louis AGRE, et al.
v.
Thomas W. WOLF, Governor of the Commonwealth of Pennsylvania, Jonathan Marks, Commissioner of the Pennsylvania Bureau of Commissions, Elections, and Legislation, Robert Torres, Acting Secretary of the Commonwealth of Pennsylvania, Joseph B. Scarnati, III, President Pro Tempore of the Pennsylvania Senate, and Michael C. Turzai, Speaker of the Pennsylvania House of Representatives, in their official capacities.

CIVIL ACTION NO. 17–4392

United States District Court, E.D. Pennsylvania.

Signed January 10, 2018


Alice W. Ballard, Law Office of Alice W. Ballard, PC, Lisa A. Mathewson, the Law Offices of Lisa A. Mathewson LLC, Robert E. Paul, Paul Reich & Myers, PC, Elliot B. Platt, Philadelphia, PA, Michael P. Persoon, Thomas H. Geoghegan, Sean Morales–Doyle, despres Schwartz & Geoghegan Ltd., Chicago, IL, Brian A. Gordon, Gordon & Ashworth PC, Bala Cynwyd, PA, Garen Meguerian, Garen Meguerian, Attorney at Law, Paoli, PA, Michael J. Healey, Healey & Hornack PC, Pittsburgh, PA, Tiffanie C. Benfer, Virginia L. Hardwick, Hardwick Benfer, LLC, Doylestown, PA, for Louis Agre, et al.

Ashton R. Lattimore, Mark A. Aronchick, Claudia Depalma, Michele D. Hangley, Hangley Aronchick Segal Pudlin & Schiller, Philadelphia, PA, Gregory George Schwab, Governor's Office of General Counsel, Kathleen Marie Kotula, Timothy E. Gates, Pennsylvania Dept. of State Office of Chief Counsel, Harrisburg, PA, Bruce M. Gorman, Jr., Brian S. Paszamant, Daniel Stephen Morris, Jason A. Snyderman, John P. Wixted, Blank Rome LLP, Princeton, NJ, Jason B. Torchinsky, Phillip M. Gordon, Shawn T. Sheehy, Holtzman Vogel Josefiak Torchinsky PLLC, Warrenton, VA, Carolyn Batz McGee, Jason R. McLean, John E. Hall, Russell D. Giancola, Kathleen A. Gallagher, Cipriani & Werner, P.C., Pittsburgh, PA, E. Mark Braden, Baker & Hostetler LLP, Washington, DC, Patrick T. Lewis, Baker & Hostetler LLP, Cleveland, OH, Michael R. Abbott, Cipriani & Werner, P.C., Blue Bell, PA, for Thomas W. Wolf, Governor of the Commonwealth of Pennsylvania, Jonathan Marks, Commissioner of the Pennsylvania Bureau of Commissions, Elections, and Legislation, Robert Torres, Acting Secretary of the Commonwealth of Pennsylvania, Joseph B. Scarnati, III, President Pro Tempore of the Pennsylvania Senate, and Michael C. Turzai, Speaker of the Pennsylvania House of Representatives, in their official capacities.

BEFORE: Smith, Chief Circuit Judge; Shwartz, Circuit Judge; Baylson, District Judge.

MEMORANDUM

Smith, Chief Circuit Judge

284 F.Supp.3d 592

I. Introduction

Plaintiffs seek a declaratory judgment that the Pennsylvania General Assembly exceeded its authority under the United States Constitution when it enacted a congressional redistricting plan that was intended to favor candidates from the Republican Party. Amended Complaint, ECF No. 88 at 1, 6, 11. Invoking 42 U.S.C. § 1983, Plaintiffs allege a direct violation of the "Elections Clause." Id. at 2. The Elections Clause, Article 1, Section 4, Clause 1 of the Constitution, provides state legislatures with authority to prescribe "[t]he Times, Places and Manner of holding Elections for Senators and Representatives." U.S. Const. art. I, § 4, cl. 1.1 Under Plaintiffs' theory, the Clause gives States very limited power: to promulgate procedural rules, and to do so in a neutral fashion. ECF No. 88 at 2. Plaintiffs argue that the General Assembly exceeded this authority when it redrew Pennsylvania's federal congressional districts in 2011. They contend that the General Assembly prioritized partisan, political ends over "neutral districting criteria,"2 and, in so doing, violated the Elections Clause's fairness requirement. Id. at 8–9; Plaintiffs' Post–Trial Memorandum of Fact and Law, ECF No. 204 at 9.

Through this lawsuit, Plaintiffs seek a sea change in redistricting. They are forthright about this intention: they desire a judicial mandate that Art. I, § 4, of the Constitution prohibits any political or partisan considerations in redistricting.3

284 F.Supp.3d 593

Plaintiffs' ambitious theory suffers from three fatal flaws. First, the Framers provided a check on state power within the text of the Elections Clause, but it is a political one—action by Congress. The language and history of the Clause suggest no direct role for the courts in regulating state conduct under the Elections Clause. Second, the Elections Clause offers no judicially enforceable limit on political considerations in redistricting. Plaintiffs' partisan blindness theory was long ago rejected by the Supreme Court, and for good reason. The task of prescribing election regulations was given, in the first instance, to political actors who make decisions for political reasons. Plaintiffs ignore this reality. In fact, they ask the Court to enforce the supposed constitutional command by requiring the Commonwealth of Pennsylvania to develop a new process that will somehow sanitize redistricting by removing political influence.4 Courts cannot mandate new processes for creating election regulations. The Elections Clause leaves that to state legislatures and to Congress—bodies directly accountable to the people. Third, Plaintiffs' Elections Clause claim is an unjustifiable attempt to skirt existing Supreme Court precedent. Partisan gerrymandering claims under the First Amendment and/or Equal Protection Clause are justiciable, but a majority of justices have yet to agree on a standard. Despite the lack of agreement, the justices favoring justiciability uniformly acknowledge that the courts should not assume a primary role in redistricting. Out of concern for a healthy separation from this most political of matters, the justices have proposed high bars for judicial intervention. Contrary to that concern, Plaintiffs offer an Elections Clause theory that invites expansive judicial involvement. Plaintiffs suggest that the Elections Clause offers an easily manageable standard. What they really mean is that it offers a lower bar—an easy path to judicial intervention.

Plaintiffs seek to chart a new path,5 one that ignores the constitutional text, casts aside persuasive precedent, and brings with it inevitable problems that should counsel restraint before entering the political thicket of popular elections. For these reasons, I would hold the Plaintiffs' Elections Clause claim to be non-justiciable.6

284 F.Supp.3d 594

a. Procedural History

The procedural history of this matter is a brief one. Plaintiffs, who began as a group of five Pennsylvania residents and eventually grew to a group of twenty-six, filed a Complaint on October 2, 2017, in the United States District Court for the Eastern District of Pennsylvania. ECF No. 1. The Honorable Michael M. Baylson, to whom the matter was assigned, promptly executed his duties pursuant to 28 U.S.C. § 2284 and notified me, as Chief Judge of the United States Court of Appeals for the Third Circuit, that the matter required a three-judge panel.7 Oct. 5, 2017 Letter, ECF No. 37. Recognizing the time-sensitive nature of this matter, and pursuant to statutory authority, Judge Baylson conducted a pre-trial scheduling conference and entered a Scheduling Order. See ECF Nos. 2, 20, 24. The Scheduling Order provided for expedited discovery and a trial to begin on December 4, 2017. ECF No. 20. On October 19, 2017, pursuant to my authority under 28 U.S.C. § 2284, I appointed the Honorable Patty Shwartz of the United States Court of Appeals for the Third Circuit, and myself, to adjudicate this matter with Judge Baylson. ECF No. 34. After ruling on various pre-trial matters, a four-day trial was held from December 4–7, 2017. Post-trial briefs were filed on December 15, 2017. ECF Nos. 204, 206, 207.

For the reasons outlined in my opinion below and the opinion of Judge Shwartz, post , judgment will be entered for Defendants.8

* * *

Because I would rule this action non-justiciable as a matter of law,9 I dispense

284 F.Supp.3d 595

with any discussion of the factual record.10 I proceed by discussing the history of the Elections Clause, the relevant jurisprudence, and finally why I believe Plaintiffs' Elections Clause claim is not cognizable. Before doing so, I note the extensive work of my two colleagues on this panel and commend their energy and effort in drafting thorough opinions in what has been a demanding timeframe.

II. History of the Elections Clause

Plaintiffs argue that the Elections Clause prohibits the drawing of congressional districts based on partisan motivations. Because the Clause's text explicitly assigns the power to prescribe election regulations to political bodies—specifically, state legislatures and the federal Congress—Plaintiffs must look outside of the constitutional text in order to support their theory. History, however, provides no support for Plaintiffs' theory. Historical records surrounding the Constitutional Convention and succeeding State ratification proceedings evince no basis upon which this Court might read Plaintiffs' desired limitations into the Elections Clause. In this section, I examine that history.

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4 practice notes
  • League of Women Voters of Pa. v. Commonwealth, No. 159 MM 2017
    • United States
    • Pennsylvania Supreme Court
    • 7 Febrero 2018
    ...of the United States District Court for the Eastern District of Pennsylvania rejected the petitioners' challenge. See Agre v. Wolf , 284 F.Supp.3d 591, 2018 WL 351603 (E.D. Pa. 2018).5 On November 13, 2017, the Commonwealth Court permitted to intervene certain registered Republican voters f......
  • Common Cause v. Rucho, No. 1:16-CV-1026
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • 27 Agosto 2018
    ...obligation is to represent only the members of [the favored] group, rather than their constituency as a whole,' " Agre v. Wolfe , 284 F.Supp.3d 591, 641 (E.D. Pa.) (Schwarz, J., concurring), appeal dismissed , ––– U.S. ––––, 138 S.Ct. 2576, ––– L.Ed.2d –––– (May 29, 2018) (mem.), and appeal......
  • Corman v. Torres, CIVIL ACTION NO. 1:18–CV–443
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • 19 Marzo 2018
    ...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 , 284 F.Supp.3d 591, 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 t......
  • League of Women Voters of Pa. v. Pennsylvania, CIVIL ACTION NO. 17-5137
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 13 Abril 2018
    ...the judicial treatment of gerrymandering in the United States Supreme Court and lower courts, in a dissenting opinion in Agre v. Wolf, 284 F. Supp. 3d 591, 648-735 (E.D. Pa. 2018). An appeal in pending in the United States Supreme Court. 3. As a pro bono law firm, PILCOP has some, but not e......
4 cases
  • League of Women Voters of Pa. v. Commonwealth, No. 159 MM 2017
    • United States
    • Pennsylvania Supreme Court
    • 7 Febrero 2018
    ...of the United States District Court for the Eastern District of Pennsylvania rejected the petitioners' challenge. See Agre v. Wolf , 284 F.Supp.3d 591, 2018 WL 351603 (E.D. Pa. 2018).5 On November 13, 2017, the Commonwealth Court permitted to intervene certain registered Republican voters f......
  • Common Cause v. Rucho, No. 1:16-CV-1026
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • 27 Agosto 2018
    ...obligation is to represent only the members of [the favored] group, rather than their constituency as a whole,' " Agre v. Wolfe , 284 F.Supp.3d 591, 641 (E.D. Pa.) (Schwarz, J., concurring), appeal dismissed , ––– U.S. ––––, 138 S.Ct. 2576, ––– L.Ed.2d –––– (May 29, 2018) (mem.), and appeal......
  • Corman v. Torres, CIVIL ACTION NO. 1:18–CV–443
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • 19 Marzo 2018
    ...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 , 284 F.Supp.3d 591, 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 t......
  • League of Women Voters of Pa. v. Pennsylvania, CIVIL ACTION NO. 17-5137
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 13 Abril 2018
    ...the judicial treatment of gerrymandering in the United States Supreme Court and lower courts, in a dissenting opinion in Agre v. Wolf, 284 F. Supp. 3d 591, 648-735 (E.D. Pa. 2018). An appeal in pending in the United States Supreme Court. 3. As a pro bono law firm, PILCOP has some, but not e......

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