January 8, 2017

By: Whitney Snyder 

Case Update

On Friday, December 29, 2017, Commonwealth Court Judge P. Kevin Brobson, sitting as special master pursuant to the Supreme Court’s grant of King’s Bench jurisdiction, issued 128 pages of recommended findings of fact and conclusions of law in LWV v. PA.  The Judge concludes that while Petitioners established that the 2011 districting plan favors Republican Party candidates in certain districts, Petitioners did not articulate a judicially manageable standard that the court can use to measure whether the plan is unconstitutional, and Petitioners did not show that the plan “clearly plainly, and palpably violates the Pennsylvania Constitution.”

The Pennsylvania Supreme Court will hear oral argument on January 17, 2018, in Harrisburg.  The Court has also set a briefing schedule: Petitioners’ brief and reproduced record are due Friday, January 5; Respondents’ answering brief is due Wednesday, January 10; and any reply brief is due Friday, January 12.

Summary of Recommended Findings of Fact and Conclusions of Law

Many of Judge Brobson’s findings are favorable to Petitioners.  He found each of Petitioners’ experts credible, while finding Respondents’ witnesses’ criticism of the Petitioners’ experts not credible in the main.  However, Judge Brobson took issue with Petitioners’ experts’ non-partisan design analysis (showing over 500 workable maps that did not take partisan interests into consideration, none of which yielded election results as drastic as Pennsylvania has experienced over the past few election cycles, where Democrat versus Republican votes were near equal, but Republicans have won 13 out of 18 congressional seats) and efficiency gap analysis (which measures the number of “wasted” votes due to cracking and packing), noting that both analyses failed to take into account: (1) that partisan considerations are acceptable and not per se unconstitutional in district design; and (2) other permissible districting considerations such as not splitting municipalities and communities of interest and incumbent protection.  Judge Brobson also criticized the efficiency gap theory of wasted votes, stating:

The very notion of a “wasted” vote is anathema to our democracy, and our courts should not embrace such a concept. The notion of wasted votes is particularly noxious in the context of a close election, where traditionally the American (and Pennsylvanian) mantra is “every vote counts.”

Judge Brobson found the most fatal flaw in the Petitioners’ case was that none of the experts have provided a manageable standard, i.e., did not give him a baseline to determine how much political gerrymandering is too much and thus unconstitutional.  He described the test he thought would be most useful:

421. The comparison, then, that is most meaningful for a constitutional analysis, is the partisan bias (by whatever metric) of the 2011 Plan when compared to the most partisan congressional plan that could be drawn, but not violate the Pennsylvania or United States Constitutions. Bringing this back to Drs. Chen, Pegden, and Warshaw, none of these experts opined as to where on their relative scales of partisanship, the line is between a constitutionally partisan map and an unconstitutionally partisan districting plan. This is the point that has bedeviled courts throughout history.

On the law, Judge Brobson found that under Pennsylvania precedent, gerrymandering claims are justiciable.  He noted that his conclusions of law did not consider arguments for a change in Pennsylvania law, instead adhering to “what the Court understands is the current state of Pennsylvania law.”  Concerning Petitioner’s equal protection claims, this adherence to the Supreme Court’s opinion in Erfer v. Commonwealth, 794 A.2d 325, 331 (Pa. 2002), proved fatal to Petitioners’ case.  There, the Court announced a two-prong test to determine whether partisan gerrymandering is unconstitutional:

[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 that while Petitioners showed intentional discrimination, they did not meet the first prong of the test because Democratic voters are not an “identifiable group” because voters may vote based on the candidate or issues, not necessarily by political affiliation.  Notably, Petitioners argue that Dr. Chen did present such evidence, but Judge Brobson seems to have discounted this testimony even though he found Dr. Chen credible.  Petitioners argued:

Pennsylvania voters likely to vote for Democratic congressional candidates are an identifiable political group. Dr. Chen conducted an independent statistical analysis that provides empirical proof for this proposition. Tr. 310:3-315:14; Petrs. Ex. 1 at 12 (Chen Report). Dr. Chen analyzed Pennsylvania election results over the last ten years and found that, for each precinct, municipality, and county in the Commonwealth, there was an extremely strong correlation in the level of support for Democratic candidates across elections. Tr. 310:10-311:12. That correlation was as high as 0.90 to 0.95. Id. Dr. Chen explained that, given this correlation, it is “very easy” to identify particular geographic units, all the way down to the precinct level, that are likely to vote for Democratic candidates in future elections. Tr. 315:6-14, 317:1-15. He testified that when we see lots of Democrats, meaning likely Democratic voters as opposed to registered Democrats, in one precinct or district, “we can be sure that . . . they are Democrats in the next election as well.” Tr. 311:5-12.

Judge Brobson found that Petitioners did not meet the second prong of the Erfer test for five reasons:

a. While Petitioners contend that Republican candidates who prevail in congressional districts do not represent their particular views on issues important to them and will effectively ignore them, the Court refuses to make such a broad finding based on Petitioners’ feelings. There is no constitutional provision that creates a right in voters to their elected official of choice. As a matter of law, an elected member of Congress represents his or her district in its entirety, even those within the district who do not share his or her views. This Court will not presume that members of Congress represent only a portion of their constituents simply because some constituents have different priorities and views on controversial issues.

b. At least 3 of the 18 congressional districts in the 2011 Plan are safe Democratic seats. See Erfer, 794 A.2d at 334.

c. Petitioners can, and still do, campaign for, financially support, and vote for their candidate of choice in every congressional election.

d. Petitioners can still exercise their right to protest and attempt to influence public opinion in their congressional district and throughout the Commonwealth.

e. Perhaps most importantly, Petitioners and likeminded voters from across the Commonwealth can exercise their political power at the polls to elect legislators and a Governor who will address and remedy any unfairness in the 2011 Plan through the next reapportionment following the 2020 U.S. Census.

Petitioners argued that the second prong of Erfer should not be followed because it is an impossible, ill reasoned standard.  This is an issue they likely will raise before the Supreme Court, which has the authority, and possibly the appetite to change the law.

Petitioners also argued that the 2011 gerrymandered plan violates the Pennsylvania Constitution’s free speech and free association clauses because it burdens the protected speech and association of voting and because it is a retaliation against Democrats for voting Democratic.  Judge Brobson disagreed.

As to the first claim – burdening free speech, Judge Brobson’s opinion is somewhat unclear.  He cited and quoted the line of Pap’s A.M. cases, where the Pennsylvania Supreme Court held an ordinance banning public nudity violated the federal constitution, the U.S. Supreme Court reversed and remanded, and the Pennsylvania Supreme Court then found the ordinance violated the Pennsylvania Constitution.  It is unclear whether Judge Brobson cited this case solely for the proposition that the Pennsylvania Constitution grants greater free speech rights than the federal constitution, or whether he was also saying the test he quoted from Pap’s A.M. should be applied:  whether “the legitimate governmental goals in [the] case [could] be achieved by less restrictive means, without burdening the right to expression guaranteed.”  This is important because Pap’s A.M. was about what level of scrutiny to apply – the U.S. Supreme Court held intermediate scrutiny, while the Pennsylvania Supreme Court had originally held strict scrutiny.  This distinction relied on whether the ordinance was content-based (strict scrutiny) or content neutral (intermediate scrutiny).  The Pennsylvania Supreme Court disagreed with the U.S. Supreme Court on this point.  The Pennsylvania Supreme Court found the ordinance was content-based because while on its face it could be read to prevent public nudity in general, it was obviously aimed at preventing nude dancing at adult establishments, which is protected expression under Pennsylvania’s free speech provisions.  On remand, the Court applied strict scrutiny and held the ordinance invalid.  However, the strict scrutiny test is not the test Judge Brobson quoted; strict scrutiny means a law must be narrowly drawn to accomplish a compelling governmental interest.

Judge Brobson appears to have instead relied on Working Families Party v. Commonwealth, 169 A.3d 1247, 1260 (Pa. Cmwlth. 2017) for the level of scrutiny to be applied, without actually applying the test.  There, Commonwealth Court, relying on the U.S. Supreme Court in Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997), held the anti-fusion provision in the election code did not violate the Pennsylvania free speech provisions.  The court applied a sliding scale type scrutiny test, which is applied under federal precedent in election law cases involving free speech violations.  The sliding scale scrutiny test: “weigh[s] the character and magnitude of the burden imposed by the provisions against the interests proffered to justify that burden.” “Regulations imposing severe burdens on plaintiffs’ rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a [s]tate’s ‘important regulatory interests’ will usually be enough to justify ‘reasonable, nondiscriminatory restrictions.'”  However, Working Families and its federal progeny did not involve content-based challenges, and Judge Brobson did not discuss the content-based issue that Petitioners raised.  Instead, he stated, without reference to a specific case: “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.”  This could be interpreted as finding the Plan enacts no burden on free speech, or merely a “lesser” burden.  Judge Brobson recognized that no Pennsylvania courts have analyzed a partisan gerrymandering challenge to congressional districts under the Pennsylvania free speech provisions, which may account for the lack of analysis on the issue – he did not view his job as making conclusions of law that changed or extended current law.  Judge Brobson also faulted Petitioners for failing to fully brief why the court should depart from federal authority when interpreting the Pennsylvania Constitution (the Edmunds analysis), likewise indicating he does not see clearly applicable Pennsylvania law.

However, neither Petitioners nor Judge Brobson fully analyzed a case that could be particularly helpful in getting to strict scrutiny under Pennsylvania law rather than the sliding scale scrutiny of Working Families – DePaul v. Com, 969 A.2d 536 (Pa. 2009).  In DePaul, the Supreme Court held a provision of the Gaming Act, which banned individuals affiliated with licensed gaming from making political contributions, unconstitutional as a violation Pennsylvania’s free speech protections under strict scrutiny.  The Court stated that “when protected expression is at issue, strict scrutiny is the appropriate measure of a governmental restriction.”  This case is actually a departure from the federal law analysis used in Working Families.  While Working Families and Timmons both involved anti-fusion statutes, federal cases involving campaign finance regulations also use the Timmons sliding scale scrutiny, not the strict scrutiny that the Pennsylvania Supreme Court applied in DePaulSee, e.g., Arizona Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 735 (2011) (explaining that Court has invalidated campaign finance restrictions that substantially burden free speech under higher scrutiny than those the Court found to be less onerous burdens); see also DePaul, 969 A.2d at 542-43, 546-47 & n.9 (discussing DePaul’s argument that federal cases on campaign finance have led to confusion over which level of scrutiny to apply and holding that under Pap’s AM, strict scrutiny applies).  Thus, Petitioners could argue that redistricting is much more like campaign finance restrictions and should be analyzed under pure strict scrutiny pursuant to DePaul, and much less like anti-fusion provisions analyzed under sliding scale scrutiny pursuant to Working Families and Timmons.  Petitioners could also argue that Pennsylvania law should give greater protection to free speech and thus depart from the federal law Timmons sliding scale scrutiny, as it did in DePaul.

The level of scrutiny to apply will surely be an issue before the Pennsylvania Supreme Court.

Finally, Judge Brobson rejected Petitioners’ retaliation claim, finding the test requires evidence of retaliatory intent, which Petitioners cannot show where the court upheld Respondents’ Legislative Immunity claims which served to preclude discovery of intent, and the fact that some Democrats voted for the 2011 Plan.

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.