[J-1-2018]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

LEAGUE OF WOMEN VOTERS OF : No. 159 MM 2017

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 :

ORDER

PER CURIAM DECIDED: January 22, 2018

AND NOW, this 22nd day of January, 2018, upon consideration of the Petition for

Review, the Commonwealth Court’s proposed findings of fact and conclusions of law,

the briefs of the parties, intervenors, and amici curiae, and the oral argument presented

on January 17, 2018, the Court orders as follows:

First, the Court finds as a matter of law that the Congressional Redistricting Act

of 2011 clearly, plainly and palpably violates the Constitution of the Commonwealth of

Pennsylvania, and, on that sole basis, we hereby strike it as unconstitutional.

Accordingly, its further use in elections for Pennsylvania seats in the United States

House of Representatives, commencing with the upcoming May 15, 2018 primary, is

hereby enjoined.

Second, should the Pennsylvania General Assembly choose to submit a

congressional districting plan that satisfies the requirements of the Pennsylvania

Constitution, it shall submit such plan for consideration by the Governor on or before

February 9, 2018. If the Governor accepts the General Assembly’s congressional

districting plan, it shall be submitted to this Court on or before February 15, 2018.

Third, should the General Assembly not submit a congressional districting plan

on or before February 9, 2018, or should the Governor not approve the General

Assembly’s plan on or before February 15, 2018, this Court shall proceed expeditiously

to adopt a plan based on the evidentiary record developed in the Commonwealth Court.

In anticipation of that eventuality, the parties shall have the opportunity to be heard; to

[J-1-2018] - 2
wit, all parties and intervenors may submit to the Court proposed remedial districting

plans on or before February 15, 2018.

Fourth, to comply with this Order, any congressional districting plan shall 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.

Fifth, the Executive Branch Respondents are advised to anticipate that a

congressional districting plan will be available by February 19, 2018, and are directed

to take all measures, including adjusting the election calendar if necessary, to ensure

that the May 15, 2018 primary election takes place as scheduled under that remedial

districting plan.

Sixth, as acknowledged by the parties, the March 13, 2018 special election for

Pennsylvania’s 18th Congressional District, which will fill a vacancy in an existing

congressional seat for which the term of office ends in 11 months, shall proceed under

the Congressional Redistricting Act of 2011 and is unaffected by this Order.

Opinion to follow.

Jurisdiction is retained.

Justice Baer files a Concurring and Dissenting Statement.

Chief Justice Saylor files a Dissenting Statement in which Justice Mundy joins.

Justice Mundy files a Dissenting Statement.

[J-1-2018] - 3
 [J-1-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

LEAGUE OF WOMEN VOTERS OF : No. 159 MM 2017

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 :

CONCURRING AND DISSENTING STATEMENT

JUSTICE BAER FILED: January 22, 2018

I join the per curiam order (PCO) to the extent it concludes that the districts as

set forth by the Congressional Redistricting Act of 2011 are unconstitutional. I also

concur in the PCO’s invitation to the Legislature and Governor to craft constitutional

maps, recognizing that redistricting is a legislative function. Butcher v. Bloom, 203 A.2d

556, 569 (Pa. 1964) (“The task of reapportionment is not only the responsibility of the

Legislature, it is also a function which can be best accomplished by that elected branch

of government.”).

I find myself in an awkward position regarding the PCO’s directive that the

primary election shall proceed with new maps on May 15, 2018. I understand the

Court’s desire to follow this schedule as it is arguably counterintuitive to believe that the

current map is unconstitutional and, nevertheless, direct its usage in the May 2018

election. There are, however, other forces at play.

When faced with an unconstitutional map, courts should determine “whether the

imminence of [the primary and] general elections requires the utilization of [a prior plan]

notwithstanding [its] invalidity” or whether a constitutional map “can practicably be

effectuated” in time for the pending election. Id. at 568 (quoting Lucas v. Forty-Fourth

General Assembly of State of Colorado, 377 U.S. 713, 739 (1964)) (internal quotation

marks omitted). In Butcher, we allowed the election to proceed employing maps that we

had concluded were unconstitutional to avoid “[s]erious disruption of orderly state

election processes and basic governmental functions.” Id. at 568 - 69.

[J-1-2018] - 2
 As in Butcher, I believe the dangers of implementing a new map for the May

2018 primary election risks “[s]erious disruption of orderly state election processes and

basic governmental functions.” Id. It is naïve to think that disruption will not occur.

Prospective candidates, incumbents and challengers alike, have been running for

months, organizing, fundraising, seeking their party’s endorsements, determining who

should be on canvassing and telephone lists, as well as undertaking the innumerable

other tasks implicit in any campaign - all with a precise understanding of the districts

within which they are to run, which have been in place since 2011. The change of the

districts’ boundary lines at this time could result in candidates, again incumbents and

challengers alike, no longer living in the districts where they have been carrying out

these activities for a year or more. This says nothing of the average voter, who thought

he knew his Congressperson and district, and now finds that all has changed within

days of the circulation of nomination petitions.

In this regard, the 18th Congressional District in southwestern Pennsylvania is

worthy of specific mention. A special election will be held there on March 13, 2018. If a

new map is indeed implemented for the 2018 election, voters in this district would be

electing a representative in March in one district while nomination petitions would be

circulating for a newly-drawn district, which may or may not include the current

candidates for the special election. Again and respectfully, I find the likelihood for

confusion, if not chaos, militates strongly against my colleagues’ admittedly admirable

effort to correct the current map prior to the May 15, 2018 primary election.

Moreover, while the Court has set forth a timeline for resolution of this issue

which theoretically allows for implementation of a new, constitutional map for the May

primary election, this timeline will face immense and perhaps insurmountable pressure

[J-1-2018] - 3
through likely subsequent litigation. Regardless of the merit of any claims, litigation

takes time, and under the proposed schedule, there is no time.

Finally, I do not favor the alternative of moving this year’s primary election. It has

been the tradition in Pennsylvania to hold a spring primary and a fall general election.

This year, Pennsylvanians will elect a Governor, a Lieutenant Governor, a United States

Senator, all of Pennsylvania’s Congressional Representatives, one-half of the

Pennsylvania Senate, and all of the Pennsylvania House of Representatives. We

cannot determine the impact of moving a primary election from the timeframe it has long

been held to a mid-summer substitute. I am uncomfortable risking aberrant results

through such a departure.

Accordingly, I believe it more prudent to apply our holding in this case to the

2020 election cycle, which would allow ample time for our sister branches of

government to comply with our holding with guidance from our forthcoming opinion, as

well as providing candidates and their supporters the opportunity to campaign in their

newly established districts, and, most importantly, to reduce the risk of voter confusion.

Having said all of this, I readily acknowledge the Court’s commendable attempt

to compress the process of correcting the map to conduct timely primary elections. I will

cooperate with the Court as it pursues its admirable goal, so long as all involved receive

due process. I cannot, however, join the PCO without this expression because of my

concern that a well-intentioned effort can still produce an unsatisfactory process and

conclusion.

[J-1-2018] - 4
 [J-1-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

LEAGUE OF WOMEN VOTERS OF : No. 159 MM 2017

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 :

DISSENTING STATEMENT

CHIEF JUSTICE SAYLOR FILED: January 22, 2018

Consistent with my previous vote disfavoring the assumption of extraordinary

jurisdiction, I agree with the Commonwealth Court’s original position that it would have

been appropriate to stay this matter pending anticipated guidance from the Supreme

Court of the United States in Gill v. Whitford, No. 16-1161 (U.S.). See Order dated Oct.

16, 2017, in League of Women Voters of Pa. v. Commonwealth, No. 261 M.D. 2017

(Pa. Cmwlth.). Indeed, the Supreme Court has stayed a series of recent federal court

directives to state legislatures in cases lodging partisan gerrymandering challenges

pending its review, most recently, as of last week. See Order dated Jan. 18, 2018, in

Rucho v. Common Cause, No. 17A745 (U.S.). I hold the view that restraint is

appropriate, particularly in light of the timing of the present challenge to a congressional

redistricting plan that was enacted in 2011 and the proximity of the impending 2018

election cycle. Cf. Concurring and Dissenting Statement, slip op. at 3-4 (Baer, J.).

The crafting of congressional district boundaries is quintessentially a political

endeavor assigned to state legislatures by the United States Constitution. See U.S.

CONST. art. I, §4. Notably, certain political objectives – such as the aim to avoid pitting

incumbents against each other or to maintain the cores of prior districts – have been

recognized as traditional redistricting criteria. See Karcher v. Daggett, 462 U.S. 725,

740, 103 S. Ct. 2653, 2663 (1983). Federal and state courts also appreciate the

[J-1-2018] - 2
propriety of preserving communities of interest which may not overlap with political

subdivision lines. See, e.g., Evenwel v. Abbott, ___ U.S. ___, ___, 136 S. Ct. 1120,

1124 (2016); Holt v. 2011 Legislative Reapportionment Comm’n, 620 Pa. 373, 422-23,

67 A.3d 1211, 1241 (2013). Furthermore, in terms of such communities, it seems plain

that legislators are in a superior position to address their interests. Accord Vieth v.

Jubelirer, 541 U.S. 267, 358, 124 S. Ct. 1769, 1824 (2004) (Breyer, J., dissenting) (“It is

precisely because politicians are best able to predict the effects of boundary changes

that the districts they design usually make some political sense.” (emphasis in original)).

To the extent that a judicially manageable standard can be articulated in this

arena, I believe the proper litmus should abide such considerations. I also consider it

appropriate to take into account matters of degree relative to the inevitable political and

partisan dynamics associated with redistricting by a legislative body.

I realize that the recommended factual findings of Judge Brobson of the

Commonwealth Court raise substantial concerns as to the constitutional viability of

Pennsylvania's current congressional districts when considered under standards that

have recently been applied by some federal courts in decisions, which, again, are under

review by the United States Supreme Court. My position at this juncture is only that I

would not presently upset those districts, in such an extraordinarily compressed fashion,

and without clarifying – for the benefit of the General Assembly and the public – the

constitutional standards by which districting is now being adjudged in Pennsylvania.

Justice Mundy joins this dissenting statement.

[J-1-2018] - 3
 [J-1-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

LEAGUE OF WOMEN VOTERS OF : No. 159 MM 2017

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 :

DISSENTING STATEMENT

JUSTICE MUNDY FILED: January 22, 2018

I join Chief Justice Saylor’s dissenting statement in full. I write separately to

express my concern with the vagueness of the Court’s order. Despite its

pronouncement that the 2011 map clearly, plainly, and palpably violates the

Pennsylvania Constitution, the Court fails to identify the specific provision it so

violates. This vagueness by the Court is problematic because the parties raise several

state constitutional claims, including the Speech Clause, the Free Association Clause,

the Elections Clause, and the Equal Protection Clause, each of which has a different

mode of analysis. See generally PA. CONST. art. I, §§ 1, 5, 7, 20, 26; Pap’s AM v. City of

Erie, 812 A.2d 591, 612 (Pa. 2002) (Speech Clause); Love v. Borough of Stroudsburg,

597 A.2d 1137, 1139 (Pa. 1991) (Equal Protection Clause); Mixon v. Commonwealth,

759 A.2d 442, 449-50 (Pa. Cmwlth. 2000), aff’d, 783 A.2d 763 (Pa. 2002) (Elections

Clause). The Court’s order fails to give essential guidance to the General Assembly

and the Governor, or this Court on how to create a constitutional, non-gerrymandered

map.

I am also troubled by the order striking down the 2011 Congressional map on the

eve of our midterm elections, as well as the remedy proposed by the Court. In my view,

the implication that this Court may undertake the task of drawing a congressional map

on its own raises a serious federal constitutional concern. See U.S. CONST. art. I, § 4,

cl. 1 (stating, “[t]he Times, Places and Manner of holding Elections for Senators and

Representatives, shall be prescribed in each State by the Legislature thereof[]”)

[J-1-2018, 159 MM 2017] - 2

(emphasis added); Ariz. State Legislature v. Ariz. Indep. Redist. Comm’n, 135 S. Ct.

2652, 2667-68 (2015) (concluding the Federal Elections Clause permits redistricting by

the state legislature, Congress, or an independent redistricting commission). For these

reasons, I conclude the Court’s approach is imprudent and I cannot participate in it. I

respectfully dissent.

[J-1-2018, 159 MM 2017] - 3