In Re Reapportionment Plan for the Pennsylvania General Assembly

KAUFFMAN,

Justice, dissenting.

While I cannot, on the sparse record before us, conclude that the Final Plan filed by the Legislative Reapportionment Commission (“Commission”) is unconstitutional, I must dissent from the majority opinion upholding the Plan.

The Constitution of this Commonwealth mandates three criteria, all of which must be adhered to in the reapportionment of legislative districts: (1) districts must be compact and contiguous, (2) districts must be as nearly equal in population as practicable, and (3) no political subdivision or ward shall be divided unless absolutely necessary. Pa.Const. art. 2, § 16.1

For this Court to be nothing more than the Commission’s rubber stamp would deprive aggrieved persons of their express Constitutional right of direct appeal from the Final Plan. Pa.Const. art. 2, § 17(d). Although I recognize that our Constitution imposes the burden upon any appellant to establish that the Final Plan is “contrary to law,” the numerous challenges now before us at the very least make out a prima facie case that all of the constitutional requirements have not been observed. The Commission appears to have unnecessarily exalted the interest in absolute mathematical equality of population in the districts above both the requirement of compactness and the proscription against splitting political subdivisions unless absolutely necessary to *548do so.2 While our decisions recognize that “in any reapportionment scheme ‘the overriding objective must be substantial equality of population,’ ”3 the Commission may not pursue only the interest in numerical equality, while disregarding the other legitimate, constitutionally-mandated objectives of reapportionment. See Reynolds v. Sims, 377 U.S. 553, 578, 84 S.Ct. 1362, 1390, 12 L.Ed.2d 506 (1964); Specter v. Levin, 448 Pa. 1, 8, 293 A.2d 15, 18 (1972).

Once we recognize the validity of constitutional considerations requiring some deviation from strict numerical equality, the issue then presented is how far from absolute equality must the redistricting proceed in order to effectuate these other legitimate considerations. The Commission has not seen fit to explain or justify its Final Plan in any way or to specify the grounds on which it dismissed the exceptions *549filed by appellants herein. We therefore have nothing before us from the Commission but the Final Plan itself. Nevertheless, the majority concludes that the Final Plan “reflects a constitutionally permissible judgment on the part of the Commission that the deviations from mathematical compactness and political subdivision boundaries contained in the plan are necessary to achieve the overriding constitutional goal of districts ‘as equal in population as practicable.’ ” I respectfully submit that there is nothing in the barren record before us to support any such conclusion.4 Unless the Commission is required to give some explanation of the absolute necessity for each challenged split of a political subdivision, no appeal could ever possibly succeed, and the Commission would be given a virtually unlimited license to read out of the Constitution the express and legitimate prohibition against dividing political subdivisions unless absolutely necessary to do so. The majority’s willingness to approve the Final Plan more or less on blind faith thus effectively deprives appellants of their express constitutional right of appeal.

As Justice Pomeroy cogently stated in his dissenting opinion in Specter v. Levin :

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 be otherwise satisfied.” The Commission has vouchsafed nothing, and the Court is reduced to trying to read its mind. It may be acknowledged that some dividing of counties, municipalities and wards and some surrender of *550compactness 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. 2, § 17) does not “bootstrap” its every feature into a position of automatic constitutional validity, absent a showing of necessity.

448 Pa. at 27, 293 A.2d at 28 (Pomeroy, J., dissenting), quoting, Butcher v. Bloom, 415 Pa. 438, 465, 203 A.2d 556, 571 (1964).5 The sparse record before us, however, contains no explanation for the Commission’s frequent splits of political subdivisions or the lack of compactness in many of the districts created by the Final Plan.6

This Court should not sustain the Final Plan without some evidence supporting the conclusion that the Commission fully considered all of the constitutionally-mandated reapportionment standards and that it complied with each of them to the fullest extent possible consistent with the overriding objective of constructing districts as nearly equal in population as practicable.

LARSEN, J., joins in this dissenting opinion.

. Section 16 provides:

The Commonwealth shall be divided into fifty senatorial and two hundred three representative districts, which shall be composed of compact and contiguous territory as nearly equal in population as practicable. Each senatorial district shall elect one Senator, and each representative district one Representative. Unless absolutely necessary no county, city, incorporated town, borough, township or ward shall be divided in forming either a senatorial or representative district.

Pa.Const. art. 2, § 16 (Emphasis supplied).

. While upholding the Commission’s Final Plan in Specter v. Levin, 448 Pa. 1, 293 A.2d 15 (1972), the majority expressly recognized the validity of the constitutional proscription against splitting political subdivisions:

In Reynolds, Section 16’s additional objectives for reapportionment plans were specifically recognized as legitimate considerations which can justify some divergences from a strict population standard.
The Court held:
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. Valid considerations may underlie such aims.
* * * * * *
Local governmental entities are frequently charged with various responsibilities incident to the operation of state government. In many States much of the legislature’s activity involves the enactment of so-called local legislation, directed only to the concerns of particular political subdivisions.

448 Pa. at 8, 13, 293 A.2d at 18, 21, quoting, Reynolds v. Sims, 377 U.S. 553, 580-581, 84 S.Ct. 1362, 1391-1392, 12 L.Ed.2d 506 (1964). See also Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973) (approving of population variations among districts to advance rational state policy of respecting boundaries of political subdivisions); Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971).

. Specter v. Levin, 448 Pa. at 8, 293 A.2d at 18 (1972) (Emphasis supplied), quoting, Reynolds v. Sims, 377 U.S. at 578, 84 S.Ct. at 1390 (1964).

. Neither the majority nor the Commission makes any attempt to address the particular exceptions filed by appellants.

. The phrase “absolutely necessary” in Section 16 can only be read with reference to the immediately preceding requirement that the districts “be composed of compact and continguous territory as nearly equal in population as practicable.” The words “absolutely necessary” give special emphasis to the principle of preserving the integrity of political subdivisions, unless the subdivisions must be divided to comply with constitutional requirements of substantial population equality and compactness.

. The Commission’s own figures indicate a pronounced increase in the number of “splits” of political subdivisions in the 1981 Final Plan which redraws districts in such a way as to cross many more boundaries of political subdivisions than did either the Plan drawn by this Court in 1966 or the Plan sustained by us in 1971.

1966 1971 1981

SENATE 13 36 40

HOUSE 30 169 230

See Respondent’s Brief at 21, Specter v. Levin, 448 Pa. at 24 n. 3, 293 A.2d at 26 n. 3, (Pomeroy, J., dissenting).