Gerrymandering, Voting District Design, Pennsylvania Constitution Free Expression and Association, Equal Protection, and Free and Equal Elections Clauses


League of Women Voters of Pennsylvania et al. v. Com., 261 MD 2017 (Pa. Cmwlth. Dec. 29, 2016) (Recommended Findings of Fact and Conclusions of Law Pursuant to King’s Bench Jurisdiction), 159 MM 2017



Whether Pennsylvania’s 2011 congressional districting plan violates the Pennsylvania Constitution’s Free Expression and Association Clauses or Equal Protection and Free and Equal Elections Clauses?

For coverage of the case since its inception, including a detailed report on the Commonwealth Court’s Dec. 29, 2017 recommended findings and conclusions, see our Gerrymandering Series.



The Supreme Court granted King’s Bench Jurisdiction in the case originally filed in the Commonwealth Court and remanded to the Commonwealth Court on an expedited basis to sit as special master, hold a hearing, and issue recommended findings of fact and conclusions of law.  The Commonwealth Court assigned Judge P. Kevin Brobson, who issued his recommendations on December 29, 2017.

Petitioners claim the 2011 congressional districting plan is unconstitutional because the voting districts that Legislative Respondents designed unfairly favor Republican candidates over Democratic candidates because the plan cracks and packs Democratic votes.  Cracking is splitting voters of one party across many districts to avoid a majority of that party’s voters in those districts.  Packing is grouping voters of one party into one district with a super majority to ensure fewer districts will have majorities of that party’s voters.  Petitioners’ allege watering down votes in this way results in stifling the effectiveness of Democrats’ votes, which adversely affects a protected form of expression, and thus infringes on their free expression and association rights under the Pennsylvania Constitution.  Petitioners also allege the plan violates their equal protection and free and equal elections rights because it discriminates against Democrats.

After a week-long trial, involving numerous expert witnesses, Judge Brobson issued his recommended findings and conclusions, finding Petitioners’ experts credible on most issues, but finding application of current state law fatal to Petitioners’ case.  While Judge Brobson found that under Pennsylvania law Petitioners’ claims are justiciable, he found that they had not overcome the obstacle plaguing gerrymandering cases since their inception and influencing the justiciability issue – Petitioners did not present a manageable standard that would allow the court to determine the line between acceptable gerrymandering and unconstitutional gerrymandering.

As to free expression and association, Judge Brobson was unclear on the exact standard of scrutiny to be applied to the claim, but appeared to find that Petitioners did not meet their burden regardless of the standard, stating: “The 2011 Plan does not preclude Petitioners from freely associating with a political party or a candidate, nor does it preclude Petitioners from exercising their right to vote for the candidate of their choice.”

As to equal protection and free and equal elections, Judge Brobson found Petitioners did not meet the Pennsylvania Supreme Court’s two-prong test from Erfer v. Commonwealth, 794 A.2d 325, 331 (Pa. 2002).  Under Erfer:

[A] plaintiff raising a gerrymandering claim must establish that there was intentional discrimination against an identifiable political group and that there was an actual discriminatory effect on that group.” In order to establish discriminatory effect, the plaintiff must show: (1) “that the identifiable group has been, or is projected to be,

disadvantaged at the polls”; and (2) “that by being disadvantaged at the polls, the identifiable group will ‘lack . . . political power and [be denied] fair representation.

To meet the second factor of the test, Petitioners must show they have been “essentially . . . shut out of the political process.”

Judge Brobson found Petitioners did not meet either prong of the test.  Petitioners did not meet the first prong because, while they showed discrimination, they did not show discrimination against an identifiable group (Democratic voters).  Petitioners did not meet the second prong because they could not show that they were shut out of the political process for five reasons:  (1) Judge Brobson did not find Petitioners’ testimony that they felt Republican candidates do not represent their interests to be sufficient; (2) at least 3 of 18 congressional seats are safe Democratic seats; (3) Petitioners can still campaign for, support and vote for their candidate of choice; (4) Petitioners can still try to influence public opinion; and (5) since the voting districts do not affect the election of the Governor, they can elect a governor that will remedy the situation in the next plan.

The Supreme Court will consider the case de novo.

The expedited proceeding is meant to give Petitioners a chance, if they prevail, to have the Legislature re-design the voting districts prior to the 2018 election.  Judge Brobson found that under the current election schedule the Bureau of Commissions, Elections, and Legislation for the Pennsylvania Department of State (DOS) would prefer to have all congressional district boundaries finalized by January 23, 2018, but that it could still be possible for the 2018 primary election to proceed if a new plan was put in place after that date.  DOS stated it will make every effort to comply with any election schedule that the Court puts in place.

For in-depth background and analysis of this case, don’t miss our ongoing Gerrymandering Series from Whitney Snyder.