Mellow v. Mitchell

• Decision Date: 26 March 1992
• Citation: 530 Pa. 44,607 A.2d 204
• Parties: Robert J. MELLOW, Senator, 22nd District, J. William Lincoln, Senator 32nd District, Leonard J. Bodack, Senator, 38th District, Michael A. O'Pake, Senator, 11th District, Patrick J. Stapleton, Senator, 41st District, Jeanette F. Reibman, Senator, 18th District, Vincent J. Fumo, Senator, 1st District, and H. Craig Lewis, Senator, 6th District, Individually and in their official capacities, Appellants, v. Brenda K. MITCHELL, Acting Secretary of the Commonwealth, and William Boehm, Commissioner of the Bureau of Commissions, Elections, and Legislation, Department of State, in their official capacities only, Appellees.
• Court: Pennsylvania Supreme Court

Page 204

607 A.2d 204

530 Pa. 44

Robert J. MELLOW, Senator, 22nd District, J. William Lincoln, Senator 32nd District, Leonard J. Bodack, Senator 38th District, Michael A. O'Pake, Senator, 11th District Patrick J. Stapleton, Senator, 41st District, Jeanette F Reibman, Senator, 18th District, Vincent J. Fumo, Senator 1st District, and H. Craig Lewis, Senator, 6th District, Individually and in their official capacities, Appellants, v. Brenda K. MITCHELL, Acting Secretary of the Commonwealth, and William Boehm, Commissioner of the Bureau of Commissions, Elections, and Legislation, Department of State, in their official capacities only, Appellees.

Supreme Court of Pennsylvania.

Argued March 7, 1992.

Decided March 26, 1992.

Edwin A. Abrahamsen, Lawrence J. Moran, Scranton, and Mark Packman, for petitioner.

Gregory E. Dunlap, Harrisburg, for respondents.

John P. Krill, Jr. and Stephen C. MacNett, Harrisburg, for Loeper, et al. intervenors.

Joseph W. Murphy and Charlene A. Basehore, Harrisburg, for Ryan/Cornell intervenor.

Reizdan B. Moore, Harrisburg, for O'Donnell intervenor.

Thomas D. Rees, Jeffrey L. Abrams, Norristown and Thomas R. Solomich, Pittsburgh, for Wilkes, et al. intervenors.

Charles W. Bowser, Kenneth C. Frazier, Mary E. Kohart, Philadelphia, Bridget Montgomery, Harrisburg, for Phl. Ldrsh. et al. intervenors.

Stephen B. Harris, Warrington, for Greenwood, et al. intervenors.

Joseph F. Leeson, Jr., Bethlehem, for Freeman, et al. intervenors.

Douglas P. Yauger, Pittsburgh, for Foglietta, et al. amici curiae.

OPINION OF THE COURT

PAPADAKOS, Justice.

This case involves the redistricting of Pennsylvania's seats in the United States House of Representatives. After the 1990 census was taken, the Clerk of the United States Congress informed the Pennsylvania Secretary of State that Pennsylvania was henceforth only entitled to have twenty-one (21) seats in the United States House of Representatives, a net loss of two (2) seats or districts. From early 1991 to the present, the Pennsylvania Legislature failed to enact a 21-district reapportionment plan. On January 28, 1992, the first day for circulating nomination petitions for election to Congress (under 25 P.S. § 2868), Appellants (eight Democratic State Senators) filed an equity action in the Commonwealth Court, invoking that Court's original jurisdiction against Appellees (certain State election officials). Noting that February 18, 1992, the last day to file nomination petitions, was fast approaching, Plaintiff-Appellants asked the Commonwealth Court to declare the existing congressional apportionment law (25 P.S. § 3571) unconstitutional; to enjoin the implementation of the official congressional election schedule until a valid plan could be adopted; and to adopt a valid reapportionment plan if the Legislature was unable to do so. Senior Judge Barry of the Commonwealth Court held a prompt hearing and, on January 30, 1992, he granted a preliminary injunction on the basis that the existing 23-seat apportionment plan was unconstitutional, enjoining the implementation of the then present schedule for electing members of Congress in Pennsylvania. Judge Barry's order required all parties and intervenors, if any, to submit their proposed reapportionment plans to the Commonwealth Court no later than February 11, 1992. His order also provided notice that the Court would select a plan if the Legislature failed to act by February 11, 1992.

As of February 12, 1992, the Legislature had failed to enact a reapportionment plan. Hence, by order of that date, the Commonwealth Court ordered final hearings to begin the next day, February 13, 1992, to receive evidence and to consider all proposed plans that had been timely filed on or before February 11, 1992. Plaintiff-Appellants presented three plans, styled Plaintiffs' Nos. 1, 2 and 3. Plaintiffs' No. 3 was later withdrawn. The Attorney General intervened and additional parties, a number of whom submitted plans of their own, were also granted intervenor status to represent the interests of specific counties or other geographical areas around the State or to protect the voting rights of African-Americans in various congressional districts. Additional details concerning these plans and other issues raised by some intervenors are addressed below.

Meanwhile, Plaintiff-Appellants applied to this Court to take plenary jurisdiction of the matter. By order of February 13, 1992, this Court exercised such plenary jurisdiction. We designated President Judge David W. Craig of the Commonwealth Court as Master to conduct hearings and report to us not later than February 26, 1992. The hearings before the Commonwealth Court began on February 13 and were concluded on February 15. Judge Craig's "Findings, Recommended Decision and Form Order," along with a proposed election schedule revision were filed with this Court on February 24, 1992, and a copy thereof is attached to this Opinion as Appendix A. Subsequently, exceptions to Judge Craig's Findings and briefs were filed with this Court and oral arguments were held on Saturday, March 7, 1992, in Pittsburgh. We issued a Per Curiam Order on March 10, 1992, adopting Judge Craig's Findings, Recommended Decision and Form of Order, along with our "Revised Election Calendar" and dismissing all exceptions thereto. A copy of our Order is attached hereto as Appendix B. This Opinion explains our disposition of this matter.

Judge Craig's Recommended Decision (Appendix A) compares and evaluates the six different plans timely submitted to him. The plans scrutinized were Plaintiffs' No. 1 and No. 2; two plans styled O'Donnell A and O'Donnell B (both submitted by Speaker of the House Robert W. O'Donnell and seven other Democratic members of the Pennsylvania House of Representatives); the "Murtha-McDade" Plan (a "bi-partisan" plan submitted by Congressmen John P. Murtha, Joseph M. McDade and nine other incumbent members of Pennsylvania's congressional delegation); and a plan styled "Loeper 1" (submitted by Senate Majority Leader F. Joseph Loeper and five other Republican State Senators). Plans filed after the February 11 deadline, including the "Ryan-Cornell" plan submitted by two Republican members of the Pennsylvania House--Matthew J. Ryan and Roy W. Cornell, and an amended version of the Loeper plan ("Loeper 2") were properly not considered by Judge Craig. As he pointed out, the various parties had many months to formulate their plans, and to have allowed consideration of plans, amendments or revisions submitted late would have created the potential of endless proceedings. Thus, Judge Craig was absolutely correct in adhering to the pre-announced deadline of February 11.

Judge Craig correctly notes that federal law requires, primarily, that districts be equal in population to the greatest practical extent. Slight departures from mathematical perfection have been justified by the federal courts only to advance the cause of equality in the following respects: avoiding fragmentation of local government territories and the splitting of election precincts; effectuating adequate representation of a minority group; creating compact and contiguous districts; maintaining relationships of shared community interests; and not unduly departing from the useful familiarity of existing districts. Finding of Fact No. 16 in Judge Craig's Recommended Decision (see Appendix A) is a table with nine columns summarizing the six competing plans.

After a detailed analysis of regional concerns, Judge Craig recommended approval of Plaintiffs' Plan No. 2 because it: (1) has a low maximum population deviation; (2) is consistent with minimal splitting of precincts; (3) achieves an enlarged number of two congressional districts with a majority of African-American population; and (4) comes closest to implementing the community-of-interest factors in those regions across the State which have identified them. While the Murtha-McDade Plan achieved remarkable mathematical exactitude, it splits twenty-two (22) election precincts and twenty-seven (27) local governments. Next in mathematical exactitude, and both meeting constitutional standards, are O'Donnell Plan B and Plaintiffs' No. 2, respectively. Unlike O'Donnell Plan B, Plaintiffs' Plans No. 1 and 2 would achieve the goal of forming two black majority congressional districts, thought possible and, hence, constitutionally necessary in light of Pennsylvania's 9% African-American population, by increasing the African-American population in the First Congressional Numerous exceptions to Judge Craig's report, and submissions from other interested persons objecting to aspects of the report, have been filed with this Court. They are set forth in full in Appendix C to this Opinion. We have consolidated them into the various legal issues raised and we will now address said issues.

District to 52.4% while maintaining a strong majority African-American population of 62.242% in the Second Congressional District.

I. Population Deviations

A number of exceptions filed contend that Judge Craig erred in recommending Plaintiffs' Plan No. 2 because that plan has a higher maximum total deviation than two other plans. In Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), the United States Supreme Court held that congressional districts within a state must have equal numbers of people based on the "one man, one vote" principle. 376 U.S. at 7-8, 84 S.Ct. at 529-30. While Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969), stands for mathematical absolutism in congressional reapportionment, the court has since conceded that "precise mathematical equality ... may be impossible to achieve in an imperfect world...." Karcher v. Daggett, 462 U.S. 725, 730, 103 S.Ct. 2653, 77 L.Ed.2d 133 (1983). Consequently, the Constitution requires only that "districts be apportioned to achieve population equality 'as nearly as is practicable.' " Karche...