Corman v. Torres

• Decision Date: 19 March 2018
• Docket Number: CIVIL ACTION NO. 1:18–CV–443
• Citation: 287 F.Supp.3d 558
• Parties: 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
• Court: U.S. District Court — Middle District of Pennsylvania

287 F.Supp.3d 558

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

CIVIL ACTION NO. 1:18–CV–443

United States District Court, M.D. Pennsylvania.

Signed March 19, 2018

Brian S. Paszamant, Jason A. Snyderman, Pro Hac Vice, Michael D. Silberfarb, Pro Hac Vice, Brian S. Paszamant, Blank Rome LLP, Mark E. Seiberling, Matthew H. Haverstick, Paul G. Gagne, Shohin H. Vance, Kleinbard LLC, Philadelphia, PA, Jason B. Torchinsky, Pro Hac Vice, Shawn Sheehy, Pro Hac Vice, Phillip M. Gordon, Pro Hac Vice, Holtzman Vogel Josefiak Torchinsky PLLC, Warrenton, VA, Joshua John Voss, Kleinbard LLC, Harrisburg, PA, for Plaintiffs.

Colleen E. Roh Sinzdak, Pro Hac Vice, Mitchell P. Reich, Pro Hac Vice, Neal Katyal, Pro Hac Vice, Reedy C. Swanson, Pro Hac Vice, Hogan Lovells U.S. LLP, Washington, DC, Thomas Paul Howell, Pennsylvania Governor's Office of General Counsel, Timothy E. Gates, Office of General Counsel, Department of State, Kathleen M. Kotula, Harrisburg, PA, Mark A. Aronchick, Michele D. Hangley, Hangley, Aronchick, Segal & Pudlin, Philadelphia, PA, Sara A. Solow, Pro Hac Vice, Hogan Lovells U.S. LLP, Philadelphia, PA, Thomas P. Schmidt, Pro Hac Vice, Hogan Lovells U.S. LLP, New York, NY, for Defendants.

Daniel F. Jacobson, Elisabeth S. Theodore, R. Stanton Jones, Sara K. Murphy, Arnold & Porter Kaye Scholer LLP, Washington, DC, Justin G. Weber, Thomas B. Schmidt, III, Pepper Hamilton LLP, Harrisburg, PA, Mary M. McKenzie, Pro Hac Vice, Benjamin D. Geffen, Pro Hac Vice, Michael Churchill, Pro Hac Vice, The Public Interest Law Center, Philadelphia, PA, Andrew D. Bergman, Pro Hac Vice, Arnold & Porter Kaye Scholer LLP, Houston, TX, for Intervenor–Defendants.

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. Background²

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 Voters³ 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 , 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 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 , ––– Pa. ––––, 178 A.3d 737, 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 766–67, 2018 WL 750872, 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 ...