Dissenting Opinion
by Me. Justice Pomeroy: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 a,nd 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, 12 L. Ed. 2d 506 (1964). It is equally clear that in so doing the ucav plan has redraivn district lines in such a Avay as to cross many more boundaries of political subdivisions than did the 1966 *24plan,3 and that compactness has in a number of instances “gone with the wind.”
I.
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 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 bn any significant *25way.’ ” 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, 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. 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 deviations 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), 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 *26bases 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.
II.
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, §§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 §16 and also by the Fourteenth Amendment to the Federal Constitution” as interpreted in Butcher I, supra. We also held that §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 §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 otherwise be satisfied.” 415 Pa. at 465.
Since our decision in the two Butcher cases, §§16 and 17 of the 1874 Constitution have been amended and consolidated into Article II, §16 of the Constitution of 1968 to provide that “[ujnless absolutely necessary no *27county, 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 “[tjhis 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 *28may 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, §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 dissented from the orders of this Court entered on February 7, 1972.
Mr. Chief Justice Jones joins in this dissent.
Butcher v. Bloom, 420 Pa. 305, 216 A. 2d 457 (1966).
As the opinion of the majority points out, the 1966 plan allowed a deviation from the ideal of population equality of a maximum of 19.1% in Senatorial districts and of 30% in Representative districts, compared to 4.3% and 5.4%, respectively, in the present plan.
Tbe “spUts” of county and municipal lines in 1966 were 13 for tiie Senatorial districts and 30 for the House of Representative districts. In 1971, the comparative figures were 36 and 169. The breakdown is shown in the following tabulation:
SENATE
1971 1966
County Splits (not including Phila.) ...... 26 12
Municipal Splits 3 —
Ward—Precincts
Philadelphia .... 2 —
Ward Splits 5 1
36 13
HOUSE
County Splits (not including Phila.) ....... 45 20
Municipal Splits ........................... 47 10
Ward—Precincts ........................... 42
Philadelphia ............................... 1
Ward Splits ........................... 34
169 30
At least two members of the Supreme Court would apply the Kirkpatrick rule to state office reapportionment, and forbid “ft]oleration of even small deviations”, unless they are “unavoidable despite good faith effort to achieve absolute equality, or for which justification is shown.” Abate v. Mundt, 403 U.S. 182, 39 L.W. 4663, 4665 (1971) (dissenting opinion of Mr. Justice BkenjfAw, joined by Mr. Justice Douglas). For a suggestion of a constitutional amendment which would permit of a de minimis approach, see It. Dixon, Jr., “The Warren Court Crusade for the Holy Grail of ‘One Man-One Vote’ ”, The Supreme Court Review (1969), 219 at 234 et seq.
Butcher v. Bloom, 415 Pa. 438, 463, 203 A. 2d 556 (1964).
The United States Supreme Court has recently reiterated its view “that the particular circumstances and needs of a local community as a whole may sometimes justify departures from strict [numerical] equality.” Abate v. Mundt, supra, 403 U.S. 185.
The majority opinion, it will be noted, speaks only in general terms, making no attempt to address itself to the particular exceptions and arguments of the various appellants. Similarly, in the single brief filed by the Commonwealth covering the 18 appeals now before us, no attempt is made to treat all the individual and different fact situations which they involve, or to respond to the detailed arguments of the several appellants. The Commission itself has filed no brief on the merits of the appeals. In this context I see nothing to be gained in this dissenting opinion by considering individually the contentions made by each appellant.