Com. ex rel. Specter v. Levin | Cases | Westlaw

I regretfully find myself in disagreement with the majority of my colleagues who, by order dated February *20 7, 1972, held that the final Reapportionment Plan of the Pennsylvania State Legislative Reapportionment Commission, filed on December 29, 1971, complied with the mandates of the Federal and Pennsylvania Constitutions.

Article II, Section 16, of the Pennsylvania Constitution provides that:

My study of the plan of the Reapportionment Commission convinces me that, while the plan does meet the standard of population equality mandated by both the Federal and Pennsylvania Constitutions, it **25 clearly violates the standard of compactness and the proscription against the division of counties, boroughs, etc., dictated by the Pennsylvania Constitution.

Article II, Section 16, I repeat, specifically provides that senatorial and representative districts ‘shall be composed of compact and contiguous territory’ and that ‘unless absolutely necessary’ no county, city, incorporated town, borough, township or ward shall be Divided in the formation of senatorial or representative districts. Unlike the Federal Constitution which mandates population equality, the Pennsylvania Constitution demands not only population equality but also compactness, contiguity and the preservation of existing lines of political subdivisions or parts thereof except in *21 cases of absolute necessity. The obvious purpose behind the Pennsylvania constitutional requirements is to prevent partisan gerrymandering.

Even the most cursory examination of the reapportionment plan in the districts involved in these appeals reveals a complete failure on the part of the Commission to comply with the requirement of compactness. In Butcher v. Bloom, 415 Pa. 438, 463, 203 A.2d 556, 570—571 (1964), this Court said: ‘We hold, therefore, that . . . the Pennsylvania Constitution requires that . . . reapportionment legislation must maintain the integrity of counties and other political subdivisions, insofar as possible, and Must provide for compact districts of contiguous territory, subject always to the overriding objective and mandate that such districts shall be ‘as nearly equal in population as may be.’ We must emphasize that, if necessary, any political subdivision or subdivisions may be divided or combined in the formation of districts where the population principle cannot otherwise be satisfied.' (Emphasis added)

Definition of the word ‘compact’ is somewhat difficult. It has been defined as ‘closely united or packed; closely knit; solid; dense; also lying in a narrow compass or arranged so as to economize space; close’ (Webster's New Collegiate Dictionary, p. 167) and as ‘closely or firmly united or packed . . . firm; solid; dense; . . . also, lying in a narrow compass or arranged so as to economize space . . .’ (Black's Law Dictionary, p. 351 (4th ed., 1951)).

Senatorial and legislative districts, as outlined in the instant reapportionment plan, particularly in Philadelphia, Lancaster, Westmoreland, Chester and Bucks Counties, flagrantly violate the rule of compactness. There is an old Chinese proverb that says: ‘One picture is worth more that 10,000 words.’ The reapportionment plan clearly presents a picture more eloquent *22 than words of a complete disregard by the Commission of the constitutional mandate that the districts be compact in nature. In many instances the districts involved in these appeals ‘twist and wind their way across the map in an erratic, amorphous fashion in order to include scattered pockets of partisan support or exclude centers of opposition voting strength.’²

Moreover, the Commission's plan completely ignores the constitutional proscription against the division of counties, boroughs, etc. While the Constitution does permit a division of such political subdivisions, it expressly provides that a division shall not take place ‘unless absolutely necessary.’ The Commission utterly fails to demonstrate any necessity in any manner in justification of the many divisions of political entities embodied in the plan.³ **26 The majority decision repudiates the constitutional mandate in this respect. In Reynolds v. Sims, 377 U.S. 533, 560—561, 578, 84 S.Ct. 1362, 1390 (1964), the United States Supreme Court observed that, ‘A State may legitimately desire to maintain the integrity of various political subdivisions, insofar as possible, and provide for compact districts of contiguous territory in designing a legislative apportionment scheme.’ Time after time, instance after instance, the Reapportionment *23 Commission has not only divided counties, boroughs and other municipalities but in some instances divided precincts in the same ward so that persons living in the same precinct on opposite sides of a street would vote for representatives in different legislative and senatorial districts.⁴

In my view, the reapportionment plan as presented on these appeals ignores the dictates of the Pennsylvania Constitution in the formation of senatorial and legislative districts and amounts to constitutionally offensive political and partisan gerrymandering.

It is clear that the reapportionment plan adopted by the Legislative Reapportionment Commission goes considerably farther than did this Court's plan adopted in Butcher II¹ in achieving population equality in the voting districts of the Commonwealth,² and thus is a distinct gain in reaching for the ideal of one man, one vote mandated by the Fourteenth Amendment. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). It is equally clear that in so doing the new plan has redrawn district lines in such a way as to cross many more boundaries of political subdivisions than did the 1966 *24 plan,³ and that compactness has in a number of instances ‘gone with the wind.’

The Court seeks to justify the population disparity in the 1971 plan on the ground that it reaches much closer to the ideal of equality than did the former plan, and that the constitutional requirement, as the Supreme **27 Court of the United States has interpreted it, does not mandate rigid mathematical precision. The majority opinion states that no ‘population deviations as minimal as those occasioned by the Commission's plan’ have been invalidated by the United States Supreme Court, and that these deviations ‘clearly do not dilute the equal population principle ‘in any significant *25 way.“ The difficulty, however, is that there is no ‘de minimis' exception which has been recognized by the United States Supreme Court. To the contrary, that Court has expressly rejected the de minimis argument in a case where the maximum spread from the mathematical ideal was only 6%. Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969). The Court there held that ‘the State must justify each variance, no matter how small’. 394 U.S. at 531, 89 S.Ct. at 1229. That case, to be sure, involved congressional districting, where the population factor may be even more paramount than in districting for state offices, but there is no indication that the de minimis standard would be acceptable in the latter situation.⁴

It may be that satisfactory explanation for and justification of the comparatively minor population deviates which are contained in the present plan can be made. Unfortunately, however, this can be done only by the Reapportionment Commission which struggled with the problem. Unlike the Court in Butcher II, Supra (see especially the concurring opinion of Mr. Chief Justice Bell and part I of the concurring and dissenting opinion of Mr. Justice Roberts, 420 Pa. at 355 and 366, 216 A.2d 457), the Commission did not see fit to explain or justify its report in any way, or to indicate on what grounds it dismissed the exceptions which form the *26 bases for those appeals. We therefore have before us only the plan itself, which constitutes the entire record in this case. I cannot agree that this ‘res ipsa loquitur’ approach passes constitutional muster today.

Another principal ground on which the present reapportionment plan is attacked is that it unjustifiably violates the integrity of political subdivisions.

In Butcher I⁵ we construed Article II, ss 16 and 17 of the Pennsylvania Constitution of 1874. The former section dealt with Senatorial districts. The court held that Senate apportionment must ‘respect county lines and lines of other political subdivisions (such as wards, boroughs, and townships), insofar as possible, without doing violence to the population principle enunciated by the first sentence of Section 16 and also by the Fourteenth Amendment to the Federal Constitution’ as interpreted in Reynolds v. Sims, Supra, 415 Pa. at 463, 203 A.2d at 570. We also held that s 17, relating to House of Representatives apportionment, ‘demands that the boundaries of all political subdivisions be respected when not in conflict with the overriding population principle.’ More specifically, we stated that s 17 must be interpreted to require that ‘counties with small populations, if necessary, be joined with other counties for the purpose of electing and sharing a representative’, and that the section did not prohibit ‘the division or combination of counties in the formation of districts where the population principle cannot **28 not otherwise be satisfied.’ 415 Pa. at 465, 203 A.2d at 571.

Since our decision in the two Butcher cases, ss 16 and 17 of the 1874 Constitution have been amended and consolidated into Article II, s 16 of the Constitution of 1968 to provide that ‘(u)nless absolutely necessary no *27 county, city, incorporated town, borough, township or ward shall be divided in forming either a senatorial or representative district.’ The ‘absolutely necessary’ is clearly with reference to the immediately preceding and paramount requirement that the districts ‘be composed of compact and contiguous territory as nearly equal in population as practicable.’ Those strong, blunt words give unmistakable emphasis to the principle of preserving the integrity of political subdivisions unless their division cannot be avoided because of the ‘overriding’ population requirement, and the requirement of compactness and contiguity.⁶

Faced with the greatly increased number of splits in the Commission's new plan, the court today makes the blanket statement that ‘(t)his increase was obviously necessitated by the stricter requirements of population equality that are now in order.’ This may be a good guess, but to me it is by no means obvious. In the face of constitutional language which prohibits divisions unless ‘absolutely necessary’, there surely must be some showing of necessity, some demonstration that ‘the population principle cannot otherwise be satisfied.’ The Commission has vouchsafed nothing, and the Court is reduced to trying to read its mind.⁷ It *28 may be acknowledged that some dividing of counties, municipalities and wards and some surrender of compactness is unavoidable, but there is no presumption that each split that was made or each misshapen district that was created falls into this category. That the final plan has ‘the force of law’ (Pennsylvania Constitution art. II, s 17) does not ‘bootstrap’ its every feature into a position of automatic constitutional validity, absent a showing of necessity.

There can be no doubt that the Commission's task in reapportionment, striving as it must to heed at once the ideals of population equality, territorial compactness and contiguity, and preservation of municipal boundaries, is formidable and complex; perfection is not possible. In my view, however, this does not relieve it of the obligation to explain and justify the inability to accomplish these simultaneous objectives.

For these reasons I dissent from the orders of this Court entered on February 7, 1972.

I respectfully dissent. The majority opinion erroneously concludes that the Fourteenth Amendment requires Only a substantial equality of population in each legislative district. Neither the Fourteenth Amendment nor any cases decided in the United States Supreme Court have ever intimated that Substantial equality is equality. Yet, the majority—in a substantiation of their error—tell us that the United States **29 Supreme Court is now requiring a ‘closer adherence’ to equality. Not so. The Court requires—indeed has required—‘. . . a good faith effort to achieve precise mathematical equality. . . .’ Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535 (1969). ‘. . . The state must justify each variance, no matter how small. . . .’ *29 Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969). The Fourteenth Amendment does not speak of Substantial equal protection of the laws. It speaks of Equal protection of the laws. When absolute equality is not achieved, the government must show that the lack of equality was either Unavoidable or that the lack of equality of treatment of a citizen resulted from A rational plan or Scheme devised to achieve Legitimate state objectives. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964).

The Fourteenth Amendment does not require any different standards for equal protection of the laws in voting and apportionment matters than it does in any other matter.

Lack of absolute equal protection of the laws is often unavoidable. A citizen may well claim a denial of equal protection of the laws because the state capitol is located two hundred miles from his home while the distance from the state capitol to another citizen's home is only two miles. The denial would not, however, be unconstitutional; the state could show that such discrimination is unavoidable. It would not be possible to locate the state capitol an exact distance from the residence of each citizen.

Lack of equal protection of the laws also results when the state's desire to achieve a legitimate state objective in one area of concern which will necessarily result in a denial of equal protection to a citizen in another area. A businessman, whose business establishment (a restaurant) is periodically inspected while his neighbor's business establishment (a shoe store) is not periodically inspected, may claim and establish a prima facie case of denial of equal protection of the laws. This would not be a Constitutional denial of equal protection; to protect the health of citizens in public eating establishments would be a legitimate state objective. *30 The overriding legitimate state objective justifies the resulting denial of equal protection even though one business establishment is inspected and another is not.

Once the legitimacy of the state's objective is established, the Fourteenth Amendment requires that the means used to achieve the objective be rational not crazyquilt. A plan or scheme, requiring inspection of Chinese restaurants only, would violate the Fourteenth Amendment.

The United States Supreme Court cases dealing with apportionment have not changed traditional Fourteenth Amendment guarantees of equal protection. These cases entitle a citizen to equal—not substantially equal—protection of the laws; one man's vote must be equal to another's. Any inequality must be justified as unavoidable or necessary to rationally implement a legitimate state objective. Reynolds v. Sims, Supra.

Applying these principles to the reapportionment plan submitted by the Pennsylvania Legislative Reapportionment Commission, the plan violates the Fourteenth Amendment because of its face it denies to each citizen of the Commonwealth equality of the vote. The majority opinion's statistics concerning the population of the various legislative districts plainly show that each citizen's vote in the Commonwealth does not receive equal treatment.

The deviations in population in the various legislative districts can not stand because it has not been shown that the deviations were unavoidable Or resulted from the implementation of a rational plan in order to achieve legitimate state objectives. The submitted plan can not meet either **30 of the tests under the Fourteenth Amendment to the United States Constitution.

The population differences in the various legislative districts were not unavoidable. Unless unavoidable, legislative districts should not vary in population more *31 than a single vote and only then if the mathematics of odd and even require it. Unavoidable is a relative term and must be considered at a given moment in time under all of the circumstances. Population variations would be totally avoidable if there were readily available to those engaged in apportionment, information concerning every square foot of the Commonwealth of Pennsylvania and the exact pinpointed geographic residence of every single person in the Commonwealth. It would be Possible for the Commonwealth to obtain such information but the cost would be prohibitive in 1972. Modern technology may allow us in some future century to instantaneously call up such information. When that time comes, mathematical exactness will become practicable and legislative districts will then have to be apportioned with mathematical exactness. Since such exactness today is not possible without prohibitive expenditures, the law does not require such exactness. The law, in 1972, must, however, require the use of those tools which are, without question, available to any apportioning group. In Pennsylvania there is readily available a map of the Commonwealth showing in detail the geographic outline and location of every single municipality from the largest unit to the smallest. This includes counties, cities, boroughs and towns. In addition to such Commonwealth maps, there is available the report of the Bureau of Census which provides population information about Pennsylvania including the population of each political subdivision from the largest to the smallest. The Reapportionment Commission had both of these tools and submitted them to this Court. These tools, with perhaps the assistance of an adding machine, are certainly the minimum tools that must be fully used in determining what results are practicable in 1972, in achieving equality of voting rights for any citizen under the Fourteenth Amendment. *32 The results that can be achieved by the use of these tools are the minimum results which are demanded before it can be properly said that population variations were Unavoidable.

The districts for the Pennsylvania Senate range from a low of 231,172 to a high of 241,360. The districts for the Pennsylvania House of Representatives range from a low of 56,675 to a high of 59,845. It is plain that some citizens have been given Almost the equal protection of the laws but not the equal protection of the laws. This did not happen because such different treatment of different citizens was unavoidable. A study of the Pennsylvania Political Subdivision Map and the United States 1970 Census of Population, Pennsylvania booklet will readily indicate to any observer that a simple shift of certain political subdivisions lying along the dividing line between districts would have provided more equalization between districts.

A shift of a political subdivision from one district to another is mandated if more equal results are to be obtained. The Fourteenth Amendment requires no less. We fully recognize that any shift of a political subdivision from one district to another may cause less equalization in other districts. Of course, a shift of a political subdivision anywhere in the state might result in a chain reaction which, as it ripples throughout the Commonwealth, wll unequalize more than it equalizes. Such a shift may, of course, not give more citizens more equal protection of the laws. But a study of the Pennsylvania Map and the Population Figures of the Political Subdivisions indicate that much equalization can take place without causing any such chain reactions. Shifts of political subdivisions affecting only two districts—that from which the political subdivision is being removed and that in which the political **31 subdivision *33 is being placed—involve no chain reactions across the state. Many such shifts are possible in the plans presented.

Because the population variances in the legislative districts were avoidable using the practical tools that are available without requiring any large expenditures of money by the Commonwealth, the plan submitted violates the Fourteenth Amendment to the Constitution of the United States because it gives different treatment under the law to various citizens of the Commonwealth. The population variances can not be justified as being unavoidable.

Even though population variances in legislative districts were avoidable in light of the practicalities of the situation, the variations may be constitutionally permissible if the various resulted because of the implementation of a rational state plan in order to achieve legitimate state objectives. Kirkpatrick v. Preisler, Supra.

The Reapportionment Commission has not presented any rational plan which was used as a means to achieve legitimate state objectives.

We have, of course, been given the legitimate objectives of the Commonwealth of Pennsylvania. The Reapportionment Commission states that it attempted to achieve the objectives which are outlined in the Pennsylvania Constitution. The objectives contained in Article 2, Section 16, of the Pennsylvania Constitution are, in addition to establishing districts as nearly equal as is practicable, that the districts be of compact and contiguous territory and that no political subdivision be divided unless absolutely necessary.

These have been stated to be legitimate state objectives. The statement of these objectives, however, does not end the inquiry concerning the constitutionality of a reapportionment plan.

*34 These objectives contained in the Pennsylvania Constitution are legitimate objectives under the standards outlined by the United States Supreme Court. That Court has said that a rational state plan may be based on the objective of preserving the integrity of political subdivisions to obtain compact and contiguous territory. Reynolds v. Sims, Supra.

A mere statement, however, that population variances in the legislative districts resulted from the pursuit of legitimate state constitutional objectives does not make it so unless this Court is presented with a rational state plan whose implementation resulted in poulation variations. Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967). We have been presented with no such plan and are completely in the dark as to whether the discriminations that occurred in population variations resulted from the implementation of a rational state plan or were crazy-quilt.

It may be that at some time in the future the legitimate state objectives will change. For instance, the requirement of compact and contiguous territory and the preservation of the integrity of political subdivisions, which are not required by the Fourteenth Amendment, may give way to considerations which are nongeographic. It is not inconceivable that a rational state plan some day may look to an objective whereby various age groups throughout the Commonwealth receive representation. A legitimate state objective might be that 18 to 25 year olds or 60 to 70 year olds elect representatives separated from other age groups. This may be a legitimate state objective and if a rational plan or scheme is set up and implemented, no denial of equal protection of the law would result.

The Pennsylvania plan must fail because on its face it denies the equal protection of the laws in view of the population variations. It must fail because the Reapportionment *35 Commission has not established **32 that these variations were Unavoidable. It must also fail because the Commission has not established or given to this Court any rational plan which was used in order to achieve the acknowledged legitimate state objectives.

We note that if a state can establish that certain population variances were unavoidable, the percentage deviations between districts may be acceptable, regardless of what percentage deviations are involved. Population deviations, however, based on the second acceptable reason for such deviations, namely that they resulted from a rational state plan will be closely scrutinized. A state plan which is devised to obtain legitimate state objectives may not be constitutional if the result is a substantial variation in population between the districts. Reynolds v. Sims, Supra.

The majority seems to fall into the error about which we have been warned by the Supreme Court. The task in reapportionment is not to see how close we can come to equality. The task is to achieve equality. Any departure must be Unavoidable or Justified. The justification must be balanced against the percentage deviation. Kirkpatrick v. Preisler, Supra.

We note that in Kirkpatrick the Court considered a 5.97% Deviation unconstitutional. This was a minimum deviation, but nothing was presented to justify even such a minimum deviation. The Pennsylvania plan, as the majority points out, deviates only 4.31% For the senatorial districts and 5.46% For the legislative districts. It is fatal for the same reasons. No justification has been shown for such deviation. The legitimate state objectives have been established but no rational plan for the implementation of these objectives has been presented.

On the other hand the Supreme Court has approved a local reapportionment which involved a variation of *36 11.9%. Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971). The percentage deviation was balanced against the rational plan used by the municipality to achieve legitimate municipal objectives. This clearly illustrates that percentages alone are irrelevant. The key inquiry is why was a citizen's vote denied equal weight. If the state objective is important enough, a percentage deviation of ten may be constitutionally valid. If the state or local objective are not important, a deviation of even two percent would not be permissible. Kirkpatrick v. Preisler, Supra.

We are unable to make any evaluation of Pennsylvania's deviation because we have been given no rational plan or scheme by which the legitimate state objectives were pursued.

The plan also violates the requirements of the Pennsylvania Constitution. The Pennsylvania Constitution, Article 2, Section 16, requires that the population in the legislative districts be as nearly equal as is practicable. This equality has not been achieved with the practical tools available to the Commission.

The Pennsylvania Constitution also states as legitimate objectives the compactness and contiguity of territory and the integrity of the political subdivisions. A look at the Pennsylvania map with the population of each political subdivision superimposed will readily show that many districts are not compact although they are all contiguous. The plan submitted has also violated the integrity of many political subdivisions. The Senate plan has violated the integrity of twenty-six counties out of sixty-seven. The plan for the House of Representatives has violated the integrity of forty-five counties out of sixty-seven. In addition, many municipalities were divided.

We have no way of knowing whether the lack of compactness in the districts or the violation of the integrity of the political subdivisions resulted because of *37 the application **33 of a rational state plan. The Commission has presented its conclusion that the lack of compactness and the split of political subdivisions was necessary. Why? We are not told. We have no way of knowing whether the defects resulted from arbitrary picking and choosing in various parts of the Commonwealth. A plan is not constitutionally validated by merely stating the objectives.

The majority erroneously place certain burdens upon the objectors to the submitted reapportionment plan. Once the citizen has established his denial of the equal protection of the law by showing variations in the population districts which dilute his vote, it is incumbent upon the state to establish why this prima facie denial of the equal protection in population occurred. Wells v. Rockefeller, Supra. The citizen does not have the tools to determine whether the variations were Unavoidable or Justified because of the implementation of a rational plan to achieve legitimate state objectives. How can the citizen properly assess whether variations were Unavoidable or Justified unless he is first provided with information concerning these matters? We have no such information before the Court and it was the burden of the Commission to show that the variations were Unavoidable or Justified.

Because the consideration of the constitutionality of the Commission plan was before this Court just a few months before the scheduled Primary Election of 1972, I would not interfere with the conduct of the 1972 elections. This appeal has come before this Court without any undue delay on the part of the Commission or the Commonwealth. In such circumstances, I would permit the elections of 1972 to proceed under the plan submitted, but would remand the matter to the Reapportionment Commission for the drawing of a reapportionment plan which meets constitutional standards. This Court should retain jurisdiction.