Drew v. Scranton | Cases | Westlaw

The plaintiffs contend that the two reapportionment Acts of January 9, 1964 deny them the equal protection of the laws guaranteed by the Fourteenth Amendment to the federal constitution. They assert that in allotting representation in the Senate and the House of Representatives the acts discriminate against the more populous counties in favor of the less populous ones. This is unconstitutionally invidious, they say, because it amounts to discrimination against one class of voters, the large city and suburban dwellers who are mostly found in the more populous counties, and in favor of another, the rural voters who mostly reside in the less populous counties. It is clear that we have jurisdiction to entertain these suits and to determine the questions thus raised. Baker v. Carr, 1962, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663.

The constitutional standard of equal protection of the laws in the area of legislative representation has been expressed in the phrase ‘one man— one vote’.¹ This standard is embedded in the Pennsylvania constitutional provision here involved which requires that the fifty senatorial districts shall be ‘as nearly equal in population as may be’. It must be conceded that exact equality in population is impossible and with the constant movement of our people would not continue to exist even if it were to be achieved on a given census date. The prohibition against dividing counties unless they are entitled to two or more senators would alone prevent the creation of districts of absolutely equal population. And so variations from the norm have been widely accepted as permissible if they occur at random and are not designed to discriminate against particular classes or groups of voters. But when the variations from the norm fit into a pattern of discrimination against the voters living in particular areas, as they do here, the people of the large metropolitan counties where the city and suburban voters dwell being denied their equal share of representation in the Senate, and the people of the less populous counties largely inhabited by rural voters being given much more than their equal share of such representation, they must be held to involve discrimination. When it appears, as it does, that the 13 most populous counties of the State are all under-represented and that 50 of the 54 less populous counties are over-represented, 28 of them by more than 25% The conclusion is inescapable that such discrimination was deliberate and invidious *317 in violation of the Fourteenth Amendment.²

The third provision of Section 16 of Article II of the Pennsylvania constitution which the plaintiffs assert compels discrimination against the more populous counties is the requirement that counties may not be divided in forming senatorial districts except when they are entitled to two or more senators. With this contention of the plaintiffs we cannot agree. On the contrary, we think, as do the defendants, that there is a rational basis for respecting county lines in this regard and that the disparities in representation from the normal ratio which compliance with this requirement produces random and not invidiously discriminatory, provided that the larger counties are allotted, as we think they must be, one senator for each full ratio and an additional senator for any surplus of population exceeding one-half a ratio. We do not mean to suggest, nor does the Pennsylvania constitution, that counties should be given equal representation in the Senate or that the so-called federal analogy is applicable. But it nonetheless remains true that counties in Pennsylvania have from early colonial times been political and governmental units in which the voters have acted together both in elections and in many other ways. Counties have formed units for the organization and activities of political parties and of many other kinds of citizens' associations. It is doubtless the fact, as the plaintiffs urge, that the cities, boroughs, townships and school districts within the counties loom larger in the public mind in local government than do the counties. But it remains true, we believe, that the bulk of the people of a Pennsylvania county have a definite community of interest which they do not share with the people of other counties, even adjoining ones. To fractionize counties by including parts of two or more in a single district would, we think, probably result in greater harm by way of confusing the voters accustomed to acting politically in their own county or its subdivisions, than in the good it might do in bringing about a theoretically more perfect equality of representation. However, if a blind adherence to this county unit principle would create a situation in which invidious discrimination would exist unless a county is divided, the county unit principle may well have to give way to the mandate of the Fourteenth Amendment. The evidence before us does not convince us that such a situation now exists.^{41 ½} Nor does the *320 evidence require us, in the case of senatorial apportionment, to hold that the county unit principle must be extended to the point of allotting a senator to each county having less than four-fifths but more than one-half a ratio. The Pennsylvania Constitution does not contemplate this but, on the contrary, requires that such counties, unless entirely surrounded by counties entitled to one or more senators, shall be joined with other counties in forming senatorial districts. Since this procedure tends to produce senatorial districts more closely approximating the senatorial ratio than if such below-ratio counties were set up as separate districts, it obviously does not run afoul of the Fourteenth Amendment.

We conclude that the Act of January 9, 1964 No. 2, which provided for senatorial reapportionment, violates the Fourteenth Amendment in denying to Philadelphia, Westmoreland and Luzerene Counties one additional senator each and in allotting those three senators to the less populous counties of the State. To the extent that Sections 16 and 18 of Article II of the Pennsylvania constitution⁵ appear to compel this result they may not be regarded as mandatory⁶ upon the General Assembly of the Commonwealth which is bound to comply with the equal protection clause of the Fourteenth Amendment to the federal constitution as the supreme law of the land.⁷

What has already been said regarding the disparities in senatorial apportionment largely applies here, particularly with respect to the thirteen *324 smallest sparsely populated rural counties. Here again the basis for this discrimination is to be found in the provisions of the Pennsylvania constitution. The plaintiffs urge that three provisions of Section 17 of Article II are responsible. The first of these to which they point is the requirement that each county, no matter how small its population, shall have at least one representative. Its effect is to give a representative to each of the thirteen counties having less than one-half a representative ratio, ranging from Wayne with a population of 28,237 to Forest with a population of 4,485, thus providing a representative, on the average, for each 16,182 persons which is only 29% Of the state ratio. The most extreme example is Forest county with one representative for only 8% Of a ratio. We are clear that this amounts to discrimination in favor of the people of these small rural counties which is invidious since it inevitably dilutes the representation of the people of the more populous counties. The defendants urge that county lines should be respected and we have agreed in general with that proposition. We agree, as we have suggested in discussing senatorial apportionment, that the use of the county as a unit of representation will not run afoul of the equal protection clause to the extent that such use may involve departing from strict equality of representation. But we think that the disparities which result must operate in a purely random and unpremeditated way, and must not exceed or fall short of, as the results of a particular census may dictate, the statewide ratio population by more than a major fraction. This, of course, is not to say that the county unit may be used in such a way as to result in an intentional and inevitable distortion of representation either in favor of or against the people of the county involved. That is the case here with regard to these thirteen least populous Pennsylvania counties. There is no practical reason why, in order to eliminate this built-in discrimination in favor of their people, they should not be added to adjoining counties to form single member representative districts, just as is done in the case of senatorial districts, just as is done in Pennsylvania with respect to most of these counties in forming judicial districts,⁹ and just as was done before the constitution of 1873 with respect to representative districts themselves.¹⁰ That this may readily be accomplished in an equitable way is apparent from the possible arrangement indicated in the following table:

In addition to the discrimination against the people of the more populous counties which results from the separate representation allotted to the smallest counties, the plaintiffs point to the restriction, applicable only to the counties having five or more ratios of population, against being allotted an additional representative for a surplus of population exceeding one-half a ratio. Under the 1960 census this restriction applies to the second and third most populous counties, Allegheny and Delaware, depriving each of them of an additional representative for its surplus of population which exceeds one-half a ratio, a surplus which would have entitled each of them to an additional representative under Section 17 had they been counties with less than five ratios of population. We agree that this provision also is invalid as involving *325 invidious discrimination against the people of these counties, since its only possible purpose and effect is to reduce the number of representatives allotted to the more populous counties below what it would be on a proportional basis, and thereby to increase the representation accorded to the people of the more sparsely populated rural counties above that basis.

The third provision upon which the plaintiffs rely is the requirement that counties be used as bases of representation and that no county or part of a county be joined with another county for that purpose. With respect to counties having less than one-half a ratio of population we agree with the plaintiffs' contention, as we have already indicated. But so far as concerns counties having a population in excess of one-half a ratio we agree with the defendants, for the reasons already stated with regard to the senatorial apportionment, that the use of the county as a basis of representation does not in and of itself involve invidious discrimination in violation of the Fourteenth Amendment.

The plaintiffs' contention is that thus providing a haphazard arrangement of two, three and four-member districts alongside of single-member districts violates the basic principle of one man— one vote which is, as we have seen, implicit in the constitutional concept of equal protection of the laws in this field. We are constrained to agree with this contention.

It follows that an injunction must issue restraining the defendants from enforcing the recently enacted apportionment acts or conducting either primary or general elections thereunder. Under the Pennsylvania constitution, however, one-half of the members of the Senate and all of the members of the House of Representatives are to be elected at the general election on November 3, 1964. Provision must, therefore, be made in time so that these elections can be held. We note that the General Assembly of the Commonwealth is presently in session. By adding the subject of reapportionment to the proclamation which called the present special session or by calling another special session for that purpose the Governor can make it possible for the General Assembly to enact valid reapportionment legislation in ample time to be effective for the forthcoming general election. We sincerely hope that such action will be taken. It is true, of course, that it will be too late for candidates for the Senate and House under such legislation to be nominated at the spring primary election on April 28th. But nominations of candidates, under these circumstances, could still be made by party committee certificates and independent nomination papers under Section 993 of the Pennsylvania Election Code¹² up to September 21, 1964.