February 12, 2018

By: Whitney Snyder

On February 7, 2018 the Pennsylvania Supreme Court issued its opinion setting forth the legal analysis underpinning its January 22, 2018 Order striking down the 2011 districting plan as unconstitutional.  Justice Todd authored the opinion in which Justices Donohue, Dougherty and Wecht joined.  Justice Baer filed an opinion concurring and dissenting.  Justice Saylor filed a dissent in which Justice Mundy joined.  Justice Mundy also filed a separate dissent.

The Court held the 2011 plan violated the Free and Equal Elections Clause of the Pennsylvania Constitution.  This is novel as the Court has not previously entertained claims of political gerrymandering of congressional districts under this Clause, but also has not precluded such claims.

The new test for political gerrymandering claims under the Free and Equal Elections Clause is that to be constitutionally compliant, at a minimum, plans must comply with the language set forth in the Court’s January 22, 2018 Order:

any congressional districting plan shall consist of: congressional districts composed of compact and contiguous territory; as nearly equal in population as practicable; and which do not divide any county, city, incorporated town, borough, township, or ward, except where necessary to ensure equality of population.


The Free and Equal Elections Clause

The Court began its analysis with the nature of the Free and Equal Elections Clause’s protections.  Slip Op. at 96-99.  The Court explained that the Pennsylvania Constitution “acts as a wholly independent protector of the rights of the citizens of our Commonwealth,” noting that it was adopted in 1776, ten years before the federal constitution, served as the template for the federal charter, and was viewed as the “most radically democratic of all the early state constitutions.”  The Free and Equal Elections Clause has no federal counterpart, and thus the Court explained interpretation of the Clause relies on the language of the provision and requires no reference to federal jurisprudence pursuant to the Edmunds four-part comparative test, although the Court may consider case law from other states that have similar provisions.

The Court emphasized that the Clause is contained in the Commonwealth’s Declaration of Rights, “which spells out the social contract between government and the people which is of such ‘general, great and essential’ quality as to be ensconced as ‘inviolate.’  Slip Op. at 99 (citing Pa. Const. art. I, Preamble & § 25; see also Pa. Const. art. I, § 2).  Thus, the Court explained, while the people delegated power to the legislature, it was with the “express exception of certain fundamental rights.”

The Court next engaged in interpretation of the Clause, which states:

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.

The Court held the first clause of the provision “clearly and unambiguously” mandates “in the broadest possible terms, that all elections” must be free and equal.

Thus, the Court found “the actual and plain language of Section 5 mandates that all voters have an equal opportunity to translate their votes into representation.”  It supported this interpretation with a very interesting history of the evolution of the Clause, the Court’s past interpretations of it, and the application of those past interpretations here.


History of the Clause

The Court started all the way back in 1693, when people flocked to Pennsylvania because of William Penn’s fundamental desire that “it be a haven of tolerance and non-discrimination.”  But initially that was not the case.  It was 1776 before Roman Catholics could hold office. The nationality, religious beliefs, and economic prosperity of various groups of immigrants divided the Commonwealth and aligned it into “nascent political factions” that “exerted varying degrees of control over the colonial government.”  Slip Op. at 101-02.  Intervening historical events, including the French and Indian War and the Revolutionary War, aligned some factions while setting them at odds with others.  This resulted in Philadelphia, Chester, and Bucks counties dominating the early 1700s colonial government, even though western regions and the City of Philadelphia eclipsed these counties in population. (Prior to 1854, the City of Philadelphia consisted largely of the area encompassing what today is known as center city, with the remaining areas being governed as Philadelphia County. The General Assembly through the 1854 Act of Consolidation created the consolidated City and County of Philadelphia by expanding the city’s territory to the entirety of the county and dissolving all other municipal authorities in the county.).

Then, in 1776, the Continental Congress adopted the Declaration of Independence and also a resolution suggesting colonies adopt their own constitutions.  This enabled “reformers” from the City of Philadelphia and the western regions to call a constitutional convention.  Benjamin Franklin presided over the convention, which resulted in the Commonwealth’s Constitution of 1776.  That constitution reflected the disenfranchised portions of the state’s sentiment to decentralize political power from the hands of the few “to form a government more directly responsive to the needs of the people.”  Two provisions were aimed at protecting the right to fair and equal representation in government.  First, representation was required to be proportional to population, with voting districts reapportioned every seven years.  See Pa. Const. of 1776, art. I, § IV.  Second, the constitution incorporated the Declaration of rights, which contained the first version of the Free and Equal Elections Clause: “all elections ought to be free; and that all free men having a sufficient evident common interest with, and attachment to the community, have a right to elect officers, or to be elected into office.”  As the Court explained:

This section reflected the delegates’ desire to secure access to the election process by all people with an interest in the communities in which they lived — universal suffrage — by prohibiting exclusion from the election process of those without property or financial means. It, thus, established a critical “leveling” protection in an effort to establish the uniform right of the people of this Commonwealth to select their representatives in government. It sought to ensure that this right of the people would forever remain equal no matter their financial situation or social class.

Slip Op. at 105.

The 1776 constitution resulted in two political factions.  Supporters were called Constitutionalists.  The opponents, first known as Anti-Constitutionalists, were comprised of Quakers, Episcopalians, Germans that didn’t fight in the Revolution, and City of Philadelphia commercial interests.  They opposed because they (1) felt excluded from participation in government, (2) resented increasing political power of the poor, and (3) felt oaths of office requiring allegiance to uphold the new government violated their religious beliefs.  The Anti-Constitutionalists later became known as Republicans, and then Federalists.

The dysfunction between the Constitutionalists and their opponents paralyzed Pennsylvania’s government to the point that the Continental Congress threatened to take over.  Eventually Republicans gained control of the General Assembly and in 1789 they called another constitutional convention.

Remarkably, the leaders of the opposing factions were able to compromise and propose a new constitution that contained Republican-favored changes to the structure of government (such as a bicameral legislature and an executive branch with veto power over legislation) but preserved the principle the Constitutionalists most cherished – popular elections with a free and equal right to vote that would not be diminished by laws that discriminated against voters on the basis of economic status, geography, or religious and political beliefs.  Slip Op. at 106-08.  The convention revised the Free and Equal Elections Clause to its current form.

The Court concluded this history shows that the Clause must be understood as an effort to end the causes of dissatisfaction that led to the previous conventions: “the dilution of the right of the people of this Commonwealth to select representatives to govern their affairs based on considerations of the region of the state in which they lived, and the religious and political beliefs to which they adhered.”  Slip Op. at 109.


Cases Interpreting the Free and Equal Elections Clause

The Court noted that while it has rarely relied on the Free and Equal Elections Clause to strike down laws, it has consistently interpreted the Clause to give it an “expansive meaning”.  Slip Op. at 109-10.  The Court noted that it has never precluded a claim that political gerrymandering violates the Clause.  Slip Op. at 112.  In In re 1991 Pennsylvania Legislative Reapportionment Comm’n, the Court did reject a claim that gerrymandering operated to deny a candidate’s claimed right under the Clause to run for legislative office, but that limited the holding did not extending the right “so far as to require that a reapportionment plan be tailored to allow [the candidate] to challenge the incumbent of his choice.”

In Erfer, the Court expressly held gerrymandering challenges to congressional redistricting plans could be brought under the Free and Equal Elections Clause.  The Court rejected the gerrymandering challenge there because petitioners had not provided a persuasive argument as to why the Court should interpret the right to vote in a more expansive fashion than the U.S. Constitution’s guarantee.

The Court also discussed that its January 22, 2018 Order, relying on Erfer, rejected arguments that congressional redistricting challenges are not subject to the Free and Equal Elections Clause because Article 1, Section 4 of the U.S. Constitution confers the power to redistrict on legislatures.  Slip Op. at 113.

The Court explained that claims under the Free and Equal Elections Clause and the Equal Protection Clause are analyzed separately, as was the case in Shankey v. Staisey, 257 A.2d 897 (Pa. 1969).  To the extent Erfer can be read to say the standards are the same, the Court expressly disavowed it.  Slip Op. at 115-116.


Consequences of A Particular Interpretation

The Court also found important to its analysis “the consequences of a particular interpretation.”  Here, that consequence is the dilution of votes of those who voted for the party not in power in the previous election to give the party in power a lasting electoral advantage via cracking and packing.  Slip Op. at 117-18.  The Court stated:

It is axiomatic that a diluted vote is not an equal vote, as all voters do not have an equal opportunity to translate their votes into representation. This is the antithesis of a healthy representative democracy. Indeed, for our form of government to operate as intended, each and every Pennsylvania voter must have the same free and equal opportunity to select his or her representatives.

Slip Op. at 118 (emphasis in original).


The Test Under the Free and Equal Elections Clause

Focusing on the historical concerns leading to the Free and Equal Elections Clause, which likewise informed the Pennsylvania Constitution’s requirements for state representative and senatorial apportionments (originally contained in Pa. Const. of 1776, § 7, expanded in Pa. Const. of 1874, art. 2, § 16, and further expanded in 1968 in the current Pa. Const., art. 2, § 16), the Court applied the neutral requirements for apportionment in Pa. Const., art. 2, § 16.  These requirements, the Court reasoned,  are a floor – i.e. a minimum requirement for constitutionality.  They consist of:  compactness, contiguity, and maintenance of the integrity of the boundaries of political subdivisions, as stated in the Court’s January 22, 2018 Order.  Slip Op. at 119-23.

The other factors that historically informed redistricting, such as preservation of prior district lines, protection of incumbents, or maintenance of political balance, the Court viewed as “wholly subordinate.”  Slip. Op. at 123.

To prevail on a claim that a redistricting plan violates Article I, Section 5 of the Pennsylvania Constitution, petitioners need show only that the “neutral criteria have been subordinated, in whole or in part, to extraneous considerations such as gerrymandering for unfair partisan political advantage.”  No evidence of intent is required.  Slip Op. at 123-124.

Adherence to the neutral criteria, however, may not be enough to sustain a districting plan, because the neutral criteria are only a floor of constitutionality.  Emphasizing that the objective of the Clause is to prevent dilution of votes by mandating voting power be equalized to the greatest degree possible among citizens, the Court recognized that a future districting plan could adhere to the neutral criteria but still operate to unfairly dilute votes.  The Court did not address the possibility of such future claims as it was unnecessary to resolution of this case.


Application to the 2011 Plan

Relying on the Petitioner’s expert testimony and statistical evidence in combination with examination of the 2011 Plan, the Court found the Plan clearly, plainly, and palpably subordinated neutral redistricting criteria to partisan concerns and thereby deprives Petitioners of their rights to free and equal elections.  Slip Op. at 125.

The most compelling evidence was Dr. Chen’s analysis that created 500 computer generated maps that utilized the neutral redistricting criteria, which only split between 12-14 counties and 40-58 municipalities in contrast to the 2011 Plan, which split 28 counties and 68 municipalities.  This demonstrated that a process that actually utilized neutral criteria would not result in the 2011 Plan and thus showed “that the 2011 Plan did not primarily consider, much less endeavor to satisfy, the traditional redistricting criteria.”  Slip Op. at 125-26.

The Court found this analysis comports with a lay examination of the Plan – i.e., the “tortuously drawn districts that cause plainly unnecessary political-subdivision splits.”  Slip Op. at 127-28.


The Remedy

The Court next provided the analysis underlying its remedy that the General Assembly submit a new Plan to the Governor for approval on or before February 9, and if the Governor approves it, then it is to be submitted to the Court by February 15, 2018.  If a General Assembly plan is not submitted to the Court, the Court appointed a special master to work on a back-up plan to which all parties will have the opportunity to give input before it is adopted.

The Court reasoned that while U.S. Const. art. 1 § 4 does give primary power to the legislature to create congressional districting plans, when the legislature is unable or chooses not to act, the judiciary’s role is to determine the appropriate plan.  Slip. Op. at 132-33.

Specifically, while statutes are cloaked with the presumption of constitutionality, it is the duty of this Court, as a co-equal branch of government, to declare, when appropriate, certain acts unconstitutional. Indeed, matters concerning the proper interpretation and application of our Commonwealth’s organic charter are at the end of the day for this Court ― and only this Court . . . . Further, our Court possesses broad authority to craft meaningful remedies when required. Pa. Const. art. V, §§ 1, 2, 10; 42 Pa.C.S. § 726 (granting power to “enter a final order or otherwise cause right and justice to be done”).

Slip. Op. at 132-33.  The Court bolstered its reasoning with a litany of federal and state cases in which courts have stepped in to redesign districting plans.  Slip Op. at 133-36.


About the Author:  

Whitney Snyder, attorney at Hawke, McKeon & Sniscak, LLP, represents clients in wide-ranging appellate matters in state and federal court.  Her practice focuses primarily on administrative agency appeals and litigation.  Prior to joining the firm Whitney interned at the Pennsylvania Supreme Court and Pennsylvania Public Utility Commission.