In Re Municipal Reapportionment of Tp.

DISSENTING OPINION BY

Judge PELLEGRINI.

I respectfully dissent from the majority’s holding that there continues to be a “safe harbor” for a reapportionment plan where the total range of population deviation between any state and local district falls below 10%. I believe that holding is at variance with the Equal Protection Clause of the United States Constitution as that provision is now being applied by the United States Supreme Court, as well as in direct violation of the express provisions of the Pennsylvania Constitution and the Municipal Reapportionment Act.

Boiling the facts down to their essence, in this case, Patricia Sons Biswanger (Objector) challenged the reapportionment plan of Haverford Township to reapportion its nine wards and change the boundaries of the Township’s 37 election districts. The reapportionment plan had a total range of deviation of 9.52% and by ordinance was enacted into law.1 Objector *839brought several actions before the trial court arguing, among other things, that the plan was unconstitutional both because of the deviation and because it was not compact and contiguous. She also presented an alternative plan with a total range of deviation of 3.17% which she argued was more compact and contiguous. The trial court dismissed her appeal on procedural issues2 without hearing her constitutional arguments, including that the reapportionment plan violated equal protection or the one-person, one-vote doctrine embodied in the United States and Pennsylvania Constitutions, and that the ordinance violated the Township’s Home Rule Charter because it did not properly account for distinctive geographical boundaries and the districts that were reapportioned were not compact and contiguous.

While the majority remands the matter to the trial court for the limited purpose of hearing Objector’s constitutional challenge to determine whether the reapportionment plan is “constitutionally infirm because its districts are not compact and contiguous and do not incorporate distinctive geographical features,” the majority dismisses Objector’s constitutional challenge that the Township plan was unconstitutional under both the federal and Pennsylvania Constitutions because the total range of population deviation in the reapportionment plan — 9.52%—was under 10%, and under its interpretation of Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973), and Erfer v. Commonwealth of Pennsylvania, 568 Pa. 128, 794 A.2d 325 (2002), any plan that has a deviation of 10% or less “enjoys a ‘safe harbor’ from challenges that assert a violation of equal protection.” (Majority opinion at 21.) I respectfully dissent because there can no longer be a “safe harbor” for federal constitutional purposes because Gaffney has been reversed, and there was never a “safe harbor” under Article 9, § 11 of the Pennsylvania Constitution, to which Erfer does not address or even remotely apply.

Under the federal constitution, as interpreted by the United States Supreme Court, there is a dichotomy between the permitted deviation in population between congressional districts and deviations between districts involving state and local offices. Under Article I, Section 2 of the United States Constitution,3 the standard *840for voting districts for congressional districts is to be as equal in population as possible. Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). While some deviations appear to be permitted, even the most minor deviations have to be supported or they are struck down. See Vieth v. Commonwealth of Pennsylvania, 241 F.Supp.2d 478 (2003).

However, while the federal courts have been unbelievably strict with deviations in federal population deviations involving congressional districts, federal courts have traditionally given much more leeway to deviations contained in state and local reapportionment plans under the Fourteenth Amendment to the United States Constitution which applies to state and local offices.4 The “safe harbor” that the majority relies on was created in Gaffney where the Supreme Court held that deviations of less than 10% are “insufficient to make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State.” Gaffney, 412 U.S. at 745, 93 S.Ct. 2321. Essentially, the majority’s position is that even though it is shown that another plan is practical that would have a smaller deviation,5 not to mention would be more compact and contiguous, because the Township’s plan’s deviation is less than 10%, it is within a “safe harbor” created by Gaff-ney and cannot be challenged.6 I disagree because a “safe harbor” no longer exists.

In Cox v. Larios, — U.S. -, 124 S.Ct. 2806, 159 L.Ed.2d 831 (2004), the United States Supreme Court has recently held, albeit in a summary affirmance,7 that *842as far as state or local constitutional reapportionment claims are concerned, there is no “safe harbor” if 10% or less is met. In Cox, the Supreme Court affirmed the U.S. District Court for the Northern District of Georgia’s8 judgment that Georgia’s legislative reapportionment plans for the State House of Representatives and Senate that had less than 10% deviation, read in that portion of its opinion titled “Traditional Redistrieting Criteria,” violated the “one-person, one-vote” principle of equal protection because there was no justification for that deviation. Justice Stevens, joined by-Justice Breyer in a concurring opinion, stated:

In challenging the District Court’s judgment, appellant invites us to weaken the one-person, one-vote standard by creating a safe harbor for population deviations of less than ten percent, within which districting decisions could be made for any reason whatsoever. The Court properly rejects that invitation. After our recent decision in Vieth v. Jubelirer, 541 U.S. 267, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004), the equal population principle remains the only clear limitation on improper districting practices, and we must be careful not to dilute its strength.

*843Id. at 2808. For the United States Supreme Court to no longer allow a “safe harbor” is understandable because it is now “practicable” for there to be much smaller deviations in districts because it is now much easier to manipulate the census data used in apportioning districts due to technological advances that have occurred since 1973. What used to take hours to hand-calculate when shifting census tracts can now be calculated in seconds with computers. What the Supreme Court seems to require is that deviations, while permitted, now have to be justified as the smallest ones “practicable.”

Even if there still existed a “10% safe harbor” that automatically would withstand challenges brought under the Fourteenth Amendment, no such safe harbor exists anywhere in the language of the Pennsylvania Constitution or the Municipal Reapportionment Act, both of which address the manner by which local governments are to redistrict. Article 9, § 11 of the Pennsylvania Constitution provides the following regarding the reapportionment of local municipalities:

Within the year following that in which the Federal decennial census is officially reported as required by Federal law, and at such other times as the governing body of any municipality shall deem necessary, each municipality having a governing body not entirely elected at large shall be reapportioned, by its governing body or as shall otherwise be provided by uniform law, into districts which shall he composed of compact and contiguous territory as nearly equally in population as practicable, for the purpose of describing the districts for those not elected at large. (Emphasis added.)

The language of this provision was incorporated into Sections 903(a) and (b) of the Municipal Reapportionment Act which provide:

(a) General rule. Within the year following that in which the Federal census, decennial or special, is officially and finally reported, and at such other times as the governing body deems necessary, each entity having a governing body not entirely elected at large shall be reapportioned into districts by its governing body. The governing body shall number the districts.
(b) Composition of districts. Districts shall be composed of compact and contiguous territory as nearly equal in population as practicable as officially and finally reported in the most recent Federal census, decennial or special.

The majority’s position would require those provisions of the Pennsylvania Constitution and the Municipal Reapportionment Act to be read as providing that anything less than a 10% deviation is presumed to be as nearly equally in population as practicable when nothing in the language of either provision even suggests such safe harbor. The majority states this interpretation is required because in Erfer, our Supreme Court held that the Pennsylvania Constitution does not provide any more protection in reapportionment cases than the Equal Protection Clause, and because it believes a “safe harbor” still exists under the Equal Protection Clause, then there is a safe harbor under the Pennsylvania Constitution.

What the majority ignores is that Erfer only involved what rights were guaranteed under Article 1, §§ 1 and 26 of the Pennsylvania Constitution, which are the provisions that serve as the basis for creating equal protection rights under the Pennsylvania Constitution, and free and equal election provisions contained in Article 1, *844§ 5 of the Pennsylvania Constitution9 together give no more protection than the federal equal protection. The constitutional provision involved here is Article 9, § 11 of the Pennsylvania Constitution, as well as the Municipal Reapportionment Act, both of which specifically deal with reapportionment which was not involved in any way in Erfer.

In response to the dissent, while acknowledging that in Erfer, our Supreme Court was only considering Article 1, §§ 1 and 26 when it stated our version of equal protection does not provide any more protection in reapportionment cases than the Equal Protection Clause, the majority, bootstrapping its interpretation, then goes on to state that there is no “persuasive reason why the ‘as equal as practical’ standard in Article 9, § 11 should not be the construed standard rather than the as equal as practicable standard embedded in Article 1, §§ 1 and 26.” (Emphasis added.) However, it does not explain where it is embedded; nowhere is the phrase “as equal as practical” contained in either of those provisions. Ignoring that the general never controls the specific, what the majority ignores is that Article 9, § 11, however, is very different than the equal protection clause, and there are a host of persuasive reasons why they should not be interpreted the same, the most persuasive being that the Pennsylvania electorate adopted a constitutional provision that provided as “as equal as- practical,” not one that said “as equal as practicable above ten percent.”

Accordingly, I would follow the plain language of Article 9, § 11 of the Pennsylvania Constitution and the Municipal Reapportionment Act and hold that while the objecting party challenging the plan has the burden of proving that the districts under the reapportionment plan are not compact and nearly equal in population as practicable, once it makes out its burden, the governmental entity cannot merely defend that there is a safe harbor under the Pennsylvania Constitution or the Municipal Reapportionment Act, even if the “safe harbor” continues to exists if the action was brought under the Fourteen Amendment.

Finally, when remanding for the limited purpose of determining whether districts are compact and contiguous and do not incorporate distinctive geographical features, the majority in dicta states that it is constrained to remand to determine whether the district is compact, stating “that no objector in the history of Pennsylvania reapportionment litigation has ever succeeded in setting aside a reapportionment on- these grounds.” In other words, *845give objectors a fair trial and then hang them. I believe that all of the language of Article 9, § 11 of the Pennsylvania Constitution and the Municipal Reapportionment Act should mean something, and we should embrace the electors’ and the legislators’ wishes when they adopted and enacted those provisions, particularly Article 9, § 11 of the Pennsylvania Constitution and the Municipal Reapportionment Act requiring that districts be compact and contiguous.

For above reasons, I respectfully dissent.

Judge SMITH-RIBNER joins.

. While the majority states that 25 P.S. § 2600-3591 precluded the Election Boards from making changes to the election districts until June 30, 2002, or until a resolution of all *839appeals had occurred, nothing under that provision of the Election Code has anything to do with the Township's duties and obligations under the Municipal Reapportionment Act which requires it to reapportion the Township within one year following the federal census.

. The trial court found and the majority agrees that a challenge to the ordinance's enactment had to be made within 90 days. In doing so, it relies on 42 Pa.C.S. 5571(a)(5), which provides, in relevant part:

[Qjuestions relating to an alleged defect in the process of enactment or adoption of any ordinance, resolution, map or similar action of a political subdivision ... . shall be raised by appeal or challenge commenced within 30 days after the intended effective date of the ordinance, resolution, map or similar action. As used in this paragraph, the term "intended effective date” means the effective date specified in the ordinance, resolution, map or similar action or, if no effective date is specified, the date 60 days after the date the ordinance, resolution, map or similar action was finally adopted but for the alleged defect in the process of enactment or adoption.

However, by its very language, that section only provides limitations to questions relating to alleged defects in the process of enactment or adoption of an ordinance and does not govern substantive challenges such as those that were brought here. If the majority's interpretation was correct and if a challenge to an ordinance prohibiting speech on the public street was not timely brought within 30 or 90 days, as the case may be, any challenge would be forever barred.

. Article I, Section 2[3] of the United States Constitution provides the following:

Representatives and direct Taxes shall be apportioned among the several States *840which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse [sic] three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six,' New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

. In extraordinary situations, the Supreme Court has in the past upheld extraordinary deviations. See Brown v. Thomson, 462 U.S. 835, 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983) (upholding an 89% deviation because of state historical and constitutional interests in Wyoming.)

.In this case, the two plans at issue are presented below:

[[Image here]]

. While often cited for the proposition that it creates a safe harbor, Gaffney only queries what would happen if an alternative plan was proposed that offered a fraction of a percentage less or was marginally better than the original plan offered.

. The precedential effect given to summary affirmances was set forth in Mandel v. Bradley, 432 U.S. 173, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977). The United States Supreme Court gathered the law on summary adjudications and, while doing so, underscored the tasks of lower courts. It stated that:

The District Court erred in believing that our affirmance in Salera adopted the reasoning as well as the judgment of the three-judge court in that case.... Hicks v. Miranda (citation omitted) held that lower *841courts are bound by summaiy actions on the merits by this Court, but we noted that "[Ascertaining the reach and content of summary actions may itself present issues of real substance.” (Citations omitted.) Because a summaiy affirmance is an affir-mance of the judgment only, the rationale of the affirmance may not be gleaned solely from the opinion below.
"When we summarily affirm, without opinion, ... we affirm the judgment but not necessarily the reasoning by which it was reached. An unexplicated summary affir-mance settles the issues for the parties, and is not to be read as a renunciation by this Court of doctrines previously announced in our opinions after full argument." (Footnote omitted.) Fusari v. Steinberg, 419 U.S. 379, 391-392, 95 S.Ct. 533, 541, 42 L.Ed.2d 521 (1975). (Burger, C.J., concurring).
Summaiy affirmances and dismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction and do leave undisturbed the judgment appealed from. They do prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.... Summaiy actions ... should not be understood as breaking new ground but as applying principles established by prior decisions to the particular facts involved.

Id. at 176, 97 S.Ct. 2238. (Emphasis added.)

In a concurring opinion, Justice Brennan set forth what analysis had to be done to rely on summaiy affirmances:

The Court by not relying on our summaiy affirmance in Tucker v. Salera, 424 U.S. 959, 96 S.Ct. 1451, 47 L.Ed.2d 727 (1976), and Auerbach v. Mandel, 409 U.S. 808, 93 S.Ct. 55, 34 L.Ed.2d 69 (1972),, effectively embraces that view, and vividly exposes the ambiguity inherent in summaiy dispositions and the nature of the detailed analysis that is essential before a decision can be made whether it is appropriate to accord a particular summaiy disposition precedential effect. After today, judges of the state and federal systems are on notice that, before deciding a case on the authority of a sum-maiy disposition by this Court in another case, they must (a) examine the jurisdictional statement in the earlier case to be certain that the constitutional questions presented were the same and, if they were, (b) determine that the judgment in fact rests upon decision of those questions and not even arguably upon some alternative nonconsti-tutional ground. The judgment should not be interpreted as deciding the constitutional questions unless no other construction of the disposition is plausible. In other words, after today, "appropriate, but not necessarily conclusive, weight” is to be given this Court’s summary dispositions.

Id. at 179-180, 97 S.Ct. 2238. See also concurring opinion by Justice Stevens in Mississippi Republican Executive Committee v. Brooks, 469 U.S. 1002, 105 S.Ct. 416, 83 L.Ed.2d 343 (1984) citing Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977). (This Court has determined that summaiy affirmances "reject the specific challenges presented in the statement of jurisdiction.”)

To gauge Cox’s precedential authority is to mark out the "reach and content” of that summary affirmance. See Delta Air Lines, Inc. v. Kramarsky, 650 F.2d 1287, 1295 (2d Cir.1981), off d in part and vacated in part, 666 F.2d 21 (1981), aff'd in part, vacated in part and remanded sub nom.; Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983) (“In attempting to apply the rule resulting from ... a summaiy decision ... lower courts must undertake a careful analysis of the precise 'reach and content’ of the Supreme Court’s action.”) See generally, Note, "Precedential Effect,” supra, 61 Va.L.Rev. at 141 ("In Hicks [v. Miranda] the directive to consider carefully the 'reach and content’ of the earlier decision, and to determine 'what issues had been properly presented ... ’ had been banished to a footnote. • In Mandel, it became the focal point....”) The most important component of that determination is if the issue was squarely raised in the statement of jurisdiction.

In this case, the Jurisdictional Statement lists as four Questions Presented for the Supreme Court’s review:

I. Whether a state redistricting plan with a total deviation of less than 10% may be held unconstitutional, where there is no evidence of invidious discrimination, based upon a court’s determination that a better plan with smaller deviations could be drawn?
II. Whether a state redistricting plan may be held unconstitutional because incumbents of one political party were treated more favorably than those of another political party?
III. Whether a state court redistricting plan may be held unconstitutional where *842minor population deviations are related to historic regional factors, and there is no evidence of invidious discrimination?
IV. Whether the district court’s decision in this case is clearly erroneous in finding Georgia's redistricting plans unconstitutional where the deviations were minor and there was no evidence of invidious discrimination, simply because plans with smaller deviations could have been drawn?

There is no doubt that the issue of whether there existed a "safe harbor” of 10% was squarely before the Court and was within the "reach and content” of the summary affir-mance. This is confirmed not only by Justice Stevens’ concurring opinion, but by Justice Scalia's dissenting opinion as well, which bemoans that as a result of the decision, "safe harbors” no longer exist.

In response, ignoring'the length of this footnote, the majority says that the dissent glosses over that two dissenting justices neither specifically overrule Gaffney nor do they speak for the entire Supreme Court. The dissent recognizes that concurring justices' opinions normally do not speak for the court, but even the majority has to recognize that the concurring opinion appears to do both when it interprets the impact — "the reach and content” of the summary affirmance — when it stated "[i]n challenging the District Court's judgment, appellant invites us to weaken the one-person, one-vote standard by creating a safe harbor for population deviations of less than ten percent, within which districting decisions could be made for any reason whatsoever. The Court properly rejects that invitation.” 124 S.Ct. at 2807. None of the majority in Cox objected to that concurring justice’s statement to the effect of the summary affirmance. Contrary to the majority statement that Cox is simply inapplicable because it dealt with partisan gerrymandering, after the sentence previously quoted, the concurring justice made it clear that partisan gerrymandering was not before the Court when it stated "Appellees allegéd [before the district court] that the House and Senate plans were the result of an unconstitutional partisan gerrymander. The District Court rejected that claim ... Appel-lees do not challenge that ruling, and it is not before us.” Id. at 2808.

In response to the dissent, the majority also says that the jurisdictional statement raised in Cox was not the same issue raised in this case because in Cox, the claim was based on partisan gerrymandering. Aside that that was not what the concurring justices thought was before the court, the pertinent provisions of the jurisdictional statement make no reference to partisan gerrymandering, assume no invidious discrimination and present the question of whether there exists a "safe harbor.” Because the "reach and content” of the summary affirmance in Cox clearly wipes out the 10% “safe harbor,” the Township has to provide what the deviation is — as small as practicable, taking into consideration that the districts also have to be as compact and contiguous.

. See Larios v. Cox, 300 F.Supp.2d 1320 (N.D.Ga.2004).

. Article 1, Section 1 of the Pennsylvania Constitution provides:

§ 1. Inherent rights of mankind.
All men are bom equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.

Article 1, Section 26 of the Pennsylvania Constitution provides:

§ 26. No discrimination by Commonwealth and its political subdivisions.

Neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right.

Article 1, Section 5 of the Pennsylvania , Constitution provides:

§ 5. Elections.
Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.

For an excellent history of the changing constitutional sources for "equal protection” under the Pennsylvania Constitution, see Gerney, Equal Protection in Pennsylvania, 42 Duquesne L.Rev. 455 (2004).