[J-20-2022] [MO: Baer, C.J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
CAROL ANN CARTER, MONICA : No. 7 MM 2022
PARRILLA, REBECCA POYOUROW, :
WILLIAM TUNG, ROSEANNE MILAZZO, :
BURT SIEGEL, SUSAN CASSANELLI, LEE : ARGUED: February 18, 2022
CASSANELLI, LYNN WACHMAN, :
MICHAEL GUTTMAN, MAYA FONKEU, :
BRADY HILL, MARY ELLEN BALCHUNIS, :
TOM DEWALL, STEPHANIE MCNULTY :
AND JANET TEMIN, :
:
Petitioners :
:
:
v. :
:
:
LEIGH M. CHAPMAN, IN HER OFFICIAL :
CAPACITY AS THE ACTING SECRETARY :
OF THE COMMONWEALTH OF :
PENNSYLVANIA; JESSICA MATHIS, IN :
HER OFFICIAL CAPACITY AS DIRECTOR :
FOR THE PENNSYLVANIA BUREAU OF :
ELECTION SERVICES AND NOTARIES, :
:
Respondents :
:
----------------------------------------------------------- :
PHILIP T. GRESSMAN; RON Y. DONAGI; :
KRISTOPHER R. TAPP; PAMELA GORKIN; :
DAVID P. MARSH; JAMES L. :
ROSENBERGER; AMY MYERS; EUGENE :
BOMAN; GARY GORDON; LIZ MCMAHON; :
TIMOTHY G. FEEMAN; AND GARTH :
ISAAK, :
:
Petitioners :
:
:
v. :
:
:
LEIGH M. CHAPMAN, IN HER OFFICIAL :
CAPACITY AS THE ACTING SECRETARY :
OF THE COMMONWEALTH OF :
PENNSYLVANIA; JESSICA MATHIS, IN :
HER OFFICIAL CAPACITY AS DIRECTOR :
FOR THE PENNSYLVANIA BUREAU OF :
ELECTION SERVICES AND NOTARIES, :
:
Respondents :
DISSENTING OPINION
OPINION FILED: March 9, 2022
JUSTICE TODD DECIDED: February 23, 2022
I dissent to the majority’s selection of the Carter Plan as the congressional
redistricting plan.
Initially, I observe that our Court was compelled to act in this matter because the
General Assembly and the Governor failed to agree on a congressional redistricting plan
in the aftermath of the 2020 Census, and a swift and final resolution of the legal and
factual disputes surrounding the plan adopted by the Special Master was necessitated by
the election timetable for the looming May 17, 2022 Primary Election. As emphasized by
the majority, this is not a task our Court sought, and, as a general matter, is one which
our Court views as “unwelcome.” See Majority Opinion at 2 (quoting League of Women
Voters v. Commonwealth, 178 A.3d 737, 823 (Pa. 2018) (“LWV II”)). Nevertheless,
whenever the legislative and executive branches are at an impasse and unable to enact
a redistricting plan into law, it falls to the judiciary as a coequal branch of our tripartite
system of constitutional governance to determine an appropriate redistricting plan, and,
when called upon, we will faithfully fulfill that solemn duty. LWV II, 178 A.3d at 822.
In exercising that duty, I respectfully reject the majority’s selection of the Carter
Plan. Rather, based on my analysis of the neutral constitutional criteria we set forth in
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LWV II, I would select the plan developed by the “Gressman Math/Science” Petitioners –
the “Gressman Plan” – as I consider it to most closely adhere to those neutral standards.1
I begin with some notable areas in which my views align with the majority. Like
the majority, I disapprove of the rationale the Special Master used to justify adopting her
chosen plan – H.B. 2146 – and I recognize that an examination of how well a
congressional redistricting plan comports with the four neutral criteria our Court
articulated in LWV II 2 is of paramount importance in any assessment of whether that plan
provides each voter what is guaranteed them by the Free and Equal Clause of the
Pennsylvania Constitution3 – namely, that their vote is given full effect and not
impermissibly diluted. LWV II, 178 A.3d at 816.
I likewise agree that the Special Master improperly accorded H.B. 2146 undue
deference as “presumptively reasonable and legitimate” because, even though it was only
a bill that never acquired the force of law (as it was vetoed by the Governor), in her view,
it best represented the will of the voters among the competing plans. Report of the
Special Master, 2/7/22, at 213-215. Respectfully, I find the Special Master’s assertion
unfounded, given that, under our Commonwealth’s Constitution, and the duly enacted
statutory framework governing the redistricting process promulgated thereto, the
responsibility for approving a congressional redistricting plan is shared equally by the
Governor and the General Assembly. See LWV II, 178 A.3d at 742 (“Pennsylvania's
1 As the majority recognizes, and as I discuss below, any plan we pick must also satisfy
the requirements of the federal Voting Rights Act, 52 U.S.C. § 10301. LWV II, 178 A.3d
at 817 n.72.
2 Congressional districts created under a redistricting plan must: (1) be compact; (2) be
contiguous; (3) be as nearly equal in population as practicable; and (4) not divide any
county, city, incorporated town, borough, township, or ward, except where necessary to
ensure equality of population. LWV II, 178 A.3d at 816-17.
3 Pa. Const. art. I, § 5 (guaranteeing that all “[e]lections shall be free and equal.”).
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congressional districts are drawn by the state legislature as a regular statute, subject to
veto by the Governor.”). Because the Governor is elected by the voters of the entire
Commonwealth, there is, therefore, no basis to regard his veto of the proposed plan in
this matter as somehow less representative of the will of the people than the legislature’s
own enactment of that plan. H.B. 2146 therefore stands on equal footing with all other
plans submitted to this Court – including the Governor’s alternative proposed plan —
namely, that it is a plan worthy of thoughtful consideration. It is not entitled to special
weight merely because it was passed by the General Assembly, but never became law.
See Sixty-Seventh Minnesota State Senate v. Beems, 406 U.S. 187, 197 (1972)
(recognizing that, when a reapportionment plan is offered by the legislature but vetoed by
the Governor, and the Governor offers his own plan which is not adopted by the
legislature, both plans stand on an equal footing and are equally worthy of “thoughtful
consideration.”).
Further, the majority properly rejected the Special Master’s automatic
disqualification of plans which do not meet the mathematical minimum of a one-person
deviation from the ideal district population. As the majority notes, a slightly greater
deviation from the ideal population of plus or minus one person, resulting in a total
deviation of two persons, is not, in and of itself, disqualifying. A marginally greater
population deviation can be justified on the basis of “consistently applied legislative
policies” that are nondiscriminatory, such as compactness, respect for municipal
boundaries, preserving cores of prior districts, and avoiding contests between incumbent
members of Congress. Karcher v. Daggett, 462 U.S. 725, 740 (1983).
However, my agreement with the majority largely ends there. Most critically, in
selecting the optimal redistricting plan from those before us, I disagree that, in this
instance, we need to look beyond the constitutionally-specified neutral criteria, and
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examine subordinate considerations. As the majority properly acknowledges, we
recognized in LWV II that the four neutral criteria – contiguity, compactness, equal
population, and splitting of political subdivisions – are the irreducible minimum
requirements of Article I, Section 5 every redistricting plan must meet. See LWV II, 178
A.3d at 816. Indeed, as the majority aptly terms them, they are “core” requirements, and
the other considerations our Court enumerated in LWV II such as preservation of
communities of interest, preservation of prior districts, protection of incumbents, and
partisan fairness are “subordinate historical considerations.” Majority Opinion at 34
(emphasis added); see also LWV II, 178 A.3d at 817 (“We recognize that other factors
have historically played a role in the drawing of legislative districts, such as the
preservation of prior district lines, protection of incumbents, or the maintenance of the
political balance which existed after the prior reapportionment. However, we view these
factors to be wholly subordinate to the neutral criteria of compactness, contiguity,
minimization of the division of political subdivisions, and maintenance of population
equality among congressional districts.” (citation omitted)). In my view, assessment of
subordinate or secondary considerations such as partisan fairness, or whether a plan
represents the least change from a prior congressional districting plan, is necessary only
when a court must choose among various plans that are equal with respect to their
compliance with the core criteria. Where, however, one plan is superior to all others, as
measured by the closeness of its adherence to these criteria, I find it unnecessary for a
court to consider the subordinate considerations. While I recognize that none of the
submitted plans are perfect in this regard, I consider the Gressman Plan to best conform
to the core criteria of all the plans submitted.
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The Gressman Plan was crafted by a group of 12 professors of mathematics,
statistics, computer science, geography, and data science who teach at Pennsylvania’s
institutions of higher learning, and who also live and vote in the Commonwealth. See
Petition for Review filed in Gressman v. Chapman, 465 M.D. 2021 (Pa. Cmwlth.). As the
Gressman Petitioners have described in their brief to our Court, they utilized a process
known as computational redistricting, which, as a general matter, relies on raw population
data and mathematical and statistical algorithms to generate maps based solely on
neutral redistricting criteria. See Gressman Brief in Support of Exceptions to Special
Master’s Report at 8 (citing, inter alia, Bruce E. Cain et al., A Reasonable Bias Approach
to Gerrymandering: Using Automated Plan Generation to Evaluate Redistricting
Proposals, 59 Wm. & Mary L. Rev. 1521, 1536 (2018) (opining that constructing
computational algorithms that create maps based on the neutral principles of
“preservation of extant communities, compactness, contiguity, and adherence to one-
person, one-vote guidelines” minimizes the influence of human bias in the map drawing
process)). In my view, the Gressman Plan, which was the product of this process, more
closely adheres to all of the core criteria, collectively, than any of the plans currently
before our Court, as measured by objective metrics.4
First, the Gressman Plan, like all the plans submitted to our Court, satisfies the
requirement that its designated districts be contiguous.
4 In making this assessment, as does the majority, I rely on the comprehensive
comparison of Dr. Daryl DeFord of all of the plans which have been submitted to our
Court. See Majority Opinion at 24 (discussing DeFord analysis).
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Second, the Gressman plan has the least minimum population deviation in
congressional districts as is mathematically possible – one person – achieving ideal
population equality of each district at 764,864 or 764,865 persons per district.
Third, with respect to compactness, which is a measure of the geographic or
geometric regularity of the congressional districts created, the Gressman Plan is as good
as or better than the other plans, and in particular the Carter Plan, according to four widely
accepted statistical measures: Polsby–Popper, Reock, Convex Hull, and Cut Edges.
See generally Report of the Special Master, 2/7/22, at 25, 69, 77 (discussing measures);
Stephen Ansolabehere et al., A Two Hundred-Year Statistical History of the
Gerrymander, 77 Ohio St. L.J. 741, 746 (2016) (discussing Polsby–Popper, Reock, and
Convex Hull measures); Expert Report of Moon Duchin, 1/24/22, at 6 (Exhibit A to
Exceptions of Governor Wolf) (discussing Cut Edges measure). While I observe that
some of the other submitted plans yield slightly more compact valuations on individual
measures, there is, as the majority notes, tension between assuring compactness and
minimizing political subdivisions splits. See Majority Opinion at 28 (“It is easily
comprehended that adherence to county and city lines will decrease compactness
because many of the boundaries follow geographic features such as rivers, which
meander across our Commonwealth.”).
In that regard, and finally, the splitting of political subdivisions, as a general
proposition, has a particularly pernicious effect in diluting the vote of the residents of those
subdivisions, and is to be scrupulously avoided unless absolutely necessary to maintain
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equality of population.5 LWV II, 178 A.3d at 815. The Gressman Plan is superlative in
that regard. Dr. DeFord’s analysis shows that, overall, the Gressman plan divides only
49 political subdivisions, which is 2 fewer than the next best plan in this category, the
Senate Democratic Caucus Plan (which, unlike the Gressman Plan, splits the City of
Pittsburgh). As compared to H.B. 2146, the Gressman Plan divides 5 fewer political
subdivisions, and it divides 9 fewer political subdivisions than the Carter Plan, which also
divides one more city — Harrisburg — than does the Gressman Plan.
Consequently, the Gressman Plan, uniquely, has the twin salutary benefits of
maintaining perfect population equality among congressional districts, while preserving
the most number of intact political subdivisions within those districts. This establishes, in
my view, the plan’s superiority over all the others which our Court has considered.6
For these reasons, I would have selected the Gressman Plan. Accordingly, I
respectfully dissent.
5 In this regard, I agree with the majority that our Constitution does not set forth a
hierarchical preference of the various types of enumerated political subdivisions which
should be protected against splitting. See Majority Opinion at 33. As the majority notes,
plans must be scrutinized to ensure that, as a whole, the number of political subdivision
splits are minimized in accordance with consideration of all relevant objective criteria. Id.
6 There is no suggestion by any of the parties that the Gressman Plan, which yields at
least two majority-minority districts, is violative of the Voting Rights Act, see supra note
1, and I discern no such violation on the basis of this record.
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