League of Women Voters of Pa. v. Com. of Pa.

• Decision Date: 19 February 2018
• Docket Number: No. 159 MM 2017,159 MM 2017
• Citation: 181 A.3d 1083 (Mem)
• Parties: LEAGUE OF WOMEN VOTERS OF PENNSYLVANIA, Carmen Febo San Miguel, James Solomon, John Greiner, John Capowski, Gretchen Brandt, Thomas Rentschler, Mary Elizabeth Lawn, Lisa Isaacs, Don Lancaster, Jordi Comas, Robert Smith, William Marx, Richard Mantell, Priscilla McNulty, Thomas Ulrich, Robert McKinstry, Mark Lichty, Lorraine Petrosky, Petitioners v. The COMMONWEALTH of Pennsylvania; The Pennsylvania General Assembly; Thomas W. Wolf, in his Capacity as Governor of Pennsylvania; Michael J. Stack III, in his Capacity as Lieutenant Governor of Pennsylvania and President of the Pennsylvania Senate; Michael C. Turzai, in his Capacity as Speaker of the Pennsylvania House of Representatives; Joseph B. Scarnati III, in his Capacity as Pennsylvania Senate President Pro Tempore; Robert Torres, in his Capacity as Acting Secretary of the Commonwealth of Pennsylvania; Jonathan M. Marks, in his Capacity as Commissioner of the Bureau of Commissions, Elections, and Legislation of the Pennsylvania Department of State, Respondents
• Court: Pennsylvania Supreme Court

181 A.3d 1083 (Mem)

LEAGUE OF WOMEN VOTERS OF PENNSYLVANIA, Carmen Febo San Miguel, James Solomon, John Greiner, John Capowski, Gretchen Brandt, Thomas Rentschler, Mary Elizabeth Lawn, Lisa Isaacs, Don Lancaster, Jordi Comas, Robert Smith, William Marx, Richard Mantell, Priscilla McNulty, Thomas Ulrich, Robert McKinstry, Mark Lichty, Lorraine Petrosky, Petitioners

v.The COMMONWEALTH of Pennsylvania; The Pennsylvania General Assembly; Thomas W. Wolf, in his Capacity as Governor of Pennsylvania; Michael J. Stack III, in his Capacity as Lieutenant Governor of Pennsylvania and President of the Pennsylvania Senate; Michael C. Turzai, in his Capacity as Speaker of the Pennsylvania House of Representatives; Joseph B. Scarnati III, in his Capacity as Pennsylvania Senate President Pro Tempore; Robert Torres, in his Capacity as Acting Secretary of the Commonwealth of Pennsylvania; Jonathan M. Marks, in his Capacity as Commissioner of the Bureau of Commissions, Elections, and Legislation of the Pennsylvania Department of State, Respondents

No. 159 MM 2017

Supreme Court of Pennsylvania.

Filed: February 19, 2018

Andrew David Bergman, Esq., Michael Churchill, Esq., Benjamin David Geffen, Esq., Philadelphia, Public Interest Law Center, John Arak Freedman, Esq., David Paul Gersch, Esq., Daniel Frederick Jacobson, Esq., R. Stanton Jones, Esq., Mary M. McKenzie, Esq., John Robinson, Esq., Elisabeth S. Theodore, Esq., for Petitioners.

Mark Alan Aronchick, Esq., Claudia De Palma, Esq., Michele D. Hangley, Esq., Philadelphia, Hangley Aronchick Segal Pudlin & Schiller, Thomas Paul Howell, Esq., Governors Office of General Counsel, Timothy Eugene Gates, Esq., Ian Blythe Everhart, Esq., Kathleen Marie Kotula, Esq., Pennsylvania Department of State Pennsylvania Office of General Counsel, for Governor Wolf, Robert Torres, Jonathan Marks, Respondents.

Clifford B. Levine, Esq., Pittsburgh, Alex Michael Lacey, Esq., Alice Birmingham Mitinger, Esq., Cohen & Grigsby, P.C., Lazar Melton Palnick, Esq., for Lt. Governor Stack, III, Respondent.

Jonathan F. Bloom, Esq., Philadelphia, Karl Stewart Myers, Esq., Stradley, Ronon, Stevens & Young, L.L.P., for Pennsylvania General Assembly, Respondent.

Kathleen A. Gallagher, Esq., Carolyn Batz McGee, Esq., Russell David Giancola, Esq., Jason Raymond McLean, Esq., Cipriani & Werner, P.C., John E. Hall, Esq., Patrick T. Lewis, Esq., Robert J. Tucker, Esq., Effrem Mark Braden, Esq., for Speaker of the House Michael C. Turzai, Respondent.

Jason Torchinsky, Esq., Shawn Sheehy, Esq., John Patrick Wixted, Esq., Brian S. Paszamant, Esq., Philadelphia, Jason Adam Snyderman, Esq., Blank Rome LLP, for President Pro Tempore Joseph B. Scarnati, III, Respondent.

Lawrence J. Tabas, Esq., Philadelphia, Obermayer Rebmann Maxwell & Hippel LLP, Timothy James Ford, Esq., Rebecca Lee Warren, Esq., for Brian McCann, et al, Intervenors.

Shannon Amanda Sollenberger, Esq., Claude Joseph Hafner, II, Esq., for Democratic Caucus of the Senate of PA, Participant.

Nora Winkelman, Esq., Tara Lynn Hazelwood, Esq. for Democratic Caucus House of Representatives, Participant.

Irwin William Aronson, Esq., John R. Bielski, Esq., Lauren Miller Hoye, Esq., Amy Louise Rosenberger, Esq., Ralph J. Teti, Esq., Alaine S. Williams, Esq., Willig, Philadelphia, Williams & Davidson, for AFSCME Council 13, et al., Amicus Curiae.

Robert A. Atkins, Esq., Andrew J. Ehrlich, Esq., Nicholas Groombridge, Esq., Michael Pernick, Esq., Pietro Signoracci, Esq., Jordan Berson Yeager, Esq., Curtin & Heefner LLP, for Political Science Professors, Amicus Curiae.

Richard L. Bazelon, Esq., Philadelphia, Bazelon Less & Feldman, P.C., for The Brennan Center for Justice at New York University School of Law, Amicus Curiae.

Martin Jay Black, Esq., Dechert LLP, for Common Cause, Amicus Curiae.

Thomas M. Bondy, Esq., Hannah Garden–Monheit, Esq., Alison Melissa Kilmartin, Esq., E. Joshua Rosenkranz, Esq., for Grofman, Bernard, Amicus Curiae and Gaddie, Ronald Keith, Amicus Curiae.

Edward Diver, Esq., Philadelphia, Peter E. Leckman, Esq., Langer Grogan & Diver, P.C., for Campaign Legal Center, Amicus Curiae.

James Christopher Martin, Esq., Traci Sands Rea, Esq., Colin Emmet Wrabley, Esq., Reed Smith LLP, for The Pittsburgh Foundation, Amicus Curiae.

Witold J. Walczak, Esq., American Civil Liberties Union, for American Civil Liberties Union of Pennsylvania, Amicus Curiae and American Civil Liberties Union, National, Amicus Curiae.

Brian Anthony Gordon, Esq., Gordon & Ashworth, P.C., for Concerned Citizens for Democracy, Amicus Curiae.

Linda Ann Kerns, Esq., Philadelphia, Law Offices of Linda A. Kerns, LLC, for American Civil Rights Union, Amicus Curiae.

John P. Lavelle, Jr., Esq., Philadelphia, Morgan Lewis & Bockius LLP, for Fair Democracy, Amicus Curiae.

Adele Schneider, pro se, and Stephen Wolf, pro se, Amicus Curiae.

OPINION AND ORDER

PER CURIAM

By Order dated January 22, 2018, this Court announced that the Pennsylvania Congressional Redistricting Act of 2011, 25 P.S. §§ 3596.101 et seq . (the "2011 Plan"), clearly, plainly and palpably violates the Pennsylvania Constitution. This adjudication was based upon the uncontradicted evidentiary record developed in the Commonwealth Court, wherein the Petitioners established that the 2011 Plan was a partisan gerrymander and that this gerrymander was extreme and durable. It was designed to dilute the votes of those who in prior elections voted for the party not in power in order to give the party in power a lasting electoral advantage. In stark contrast, Article I, Section 5 of our Constitution provides: "Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage." Pa. Const. art. I, § 5. On this record, it is clear that the 2011 Plan violates Article I, Section 5, since a diluted vote is not an equal vote.

Having determined that the 2011 Plan violates our Constitution, the question of the appropriate remedy remained. This Court was compelled to decide whether to perpetuate an unconstitutional districting plan, which would result in the unlawful dilution of our citizens' votes in the impending election, or to rectify the violation of our Commonwealth's Constitution immediately. So stated, our choice was clear. As this Court has aptly recognized, the fundamental rights guaranteed by our organic charter "cannot lawfully be infringed, even momentarily." Pap's A.M. v. City of Erie , 571 Pa. 375, 812 A.2d 591, 607 (2002) (internal quotation marks omitted).

In our January 22 Order,¹ this Court directed that, "should the Pennsylvania General Assembly choose to submit a congressional districting plan that satisfies the requirements" of that Order, the General Assembly was to submit such a plan to the Governor on or before February 9, 2018. If the Governor accepted the General Assembly's congressional districting plan, this Court ordered such plan to be submitted to the Court on or before February 15, 2018. Thus, the General Assembly had a full eighteen days to submit a plan to the Governor, and the Governor had five days to consider and approve or disapprove the General Assembly's plan.²

This Court recognized that the primary responsibility for drawing congressional districts rested squarely with the legislature, but we also acknowledged that, in the eventuality of the General Assembly not submitting a plan to the Governor, or the Governor not approving the General Assembly's plan within the time specified, it would fall to this Court expeditiously to adopt a plan based upon the evidentiary record developed in the Commonwealth Court. We also offered the opportunity for parties and intervenors to submit proposed remedial districting plans to the Court on or before February 15, 2018. The Court specified that, to comply with the January 22 Order, any remedial congressional districting plan, whether enacted by the General Assembly and Governor or submitted by the parties and intervenors, should 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.

Order of January 22, 2018, at Paragraph "Fourth". Furthermore, the Court advised the Executive Branch Respondents to anticipate that a remedial congressional districting plan would be available by February 19, 2018, and they were directed to take all measures, including adjusting the election calendar if necessary, to ensure that the May 15, 2018 primary election would take place as scheduled under that remedial districting plan.

The Court issued a supplemental Order on January 26, 2018, in which the Court appointed Professor Nathaniel Persily as an advisor to assist the Court in adopting, if necessary, a remedial congressional redistricting plan.³ Moreover, in that Order, we directed the Pennsylvania General Assembly and/or its Legislative Data Processing Center to submit to the Court data files containing the current boundaries of all Pennsylvania municipalities and precincts. In response, counsel for the General Assembly indicated no such current files existed.⁴

Thereafter, on February 7, 2018, this Court filed its Opinion in support of the January 22 Order, setting forth its legal rationale for determining that the 2011 Plan is violative of our Constitution.⁵ In explaining the Court's rationale, we emphasized that nothing in the Opinion was intended to conflict with, or in any way alter, the mandate contained in the January 22 Order.

Neither the General Assembly nor the Governor sought an extension of the dates set forth in our January 22 Order. The General Assembly failed to pass legislation for the Governor's approval, thereby making it impossible for our sister branches to meet the Court's deadline. As a result, it has become the judiciary's duty to fashion an appropriate remedial districting plan, and this Court...