                              [J-1-2018]
               IN THE SUPREME COURT OF PENNSYLVANIA
                           MIDDLE DISTRICT


LEAGUE OF WOMEN VOTERS OF             : No. 159 MM 2017
PENNSYLVANIA, CARMEN FEBO SAN         :
MIGUEL, JAMES SOLOMON, JOHN           :
GREINER, JOHN CAPOWSKI,               :
GRETCHEN BRANDT, THOMAS               :
RENTSCHLER, MARY ELIZABETH            :
LAWN, LISA ISAACS, DON LANCASTER,     :
JORDI COMAS, ROBERT SMITH,            :
WILLIAM MARX, RICHARD MANTELL,        :
PRISCILLA MCNULTY, THOMAS             :
ULRICH, ROBERT MCKINSTRY, MARK        :
LICHTY, LORRAINE PETROSKY,            :
                                      :
                                      :
                Petitioners           :
                                      :
                                      :
              v.                      :
                                      :
THE COMMONWEALTH OF                   :
PENNSYLVANIA; THE PENNSYLVANIA        :
GENERAL ASSEMBLY; THOMAS W.           :
WOLF, IN HIS CAPACITY AS              :
GOVERNOR OF PENNSYLVANIA;             :
MICHAEL J. STACK III, IN HIS CAPACITY :
AS LIEUTENANT GOVERNOR OF             :
PENNSYLVANIA AND PRESIDENT OF         :
THE PENNSYLVANIA SENATE;              :
MICHAEL C. TURZAI, IN HIS CAPACITY    :
AS SPEAKER OF THE PENNSYLVANIA        :
HOUSE OF REPRESENTATIVES;             :
JOSEPH B. SCARNATI III, IN HIS        :
CAPACITY AS PENNSYLVANIA SENATE :
PRESIDENT PRO TEMPORE; ROBERT         :
TORRES, IN HIS CAPACITY AS ACTING :
SECRETARY OF THE                      :
COMMONWEALTH OF PENNSYLVANIA; :
JONATHAN M. MARKS, IN HIS             :
CAPACITY AS COMMISSIONER OF THE :
BUREAU OF COMMISSIONS,                :
ELECTIONS, AND LEGISLATION OF         :
THE PENNSYLVANIA DEPARTMENT OF                 :
STATE,                                         :
                                               :
                    Respondents                :




                                 DISSENTING OPINION


CHIEF JUSTICE SAYLOR                                           FILED: February 7, 2018


       I incorporate by reference my dissenting statement to the Order of January 22,

2018, per which the majority invalidated Pennsylvania’s current congressional districting

scheme. In summary, I believe that: the present exercise of extraordinary jurisdiction

was improvident; this Court’s review would benefit from anticipated guidance from the

Supreme Court of the United States; awaiting such guidance is particularly appropriate

given the delay, until 2017, of Petitioners’ challenge to a 2011 redistricting plan; and the

appropriate litmus for judicial review of redistricting should take into account the

inherently political character of the work of the General Assembly, to which the task of

redistricting has been assigned by the United States Constitution.         See League of

Women Voters of Pa. v. Commonwealth, ___ Pa. ___, ___, ___ A.3d ___, ___, 2018

WL 496907, *1 (Jan. 22, 2018) (mem.) (Saylor, C.J., dissenting).

       Further, I respectfully disagree with the majority opinion in many other material

respects. Initially, I certainly have no cause to differ with the broader strokes comprising

the bulk of the opinion, including the historical accounts and the confirmation of “a

voter’s right to equal protection in the electoral process for the selection of his or her

representatives in government,” Majority Opinion, slip op. at 100, which is a right that is

also recognized under federal constitutional law. See Vieth v. Jubelirer, 541 U.S. 267,

292, 124 S. Ct. 1769, 1785 (2004) (plurality) (expressing agreement with a dissenting


                                       [J-1-2018] - 2
Justice that severe partisan gerrymanders are inconsistent with democratic principles

and may violate the Equal Protection Clause, albeit maintaining that the judiciary is

incapable of devising manageable standards for the assessments of degree).

       The Supreme Court of the United States has also emphasized, however, that

redistricting is committed to the political branch and is inherently political. 1     In this

regard, the application of constitutional principles governing individual rights in the

context of legislative redistricting is sui generis, given the inevitable tension between the

power allocated to the Legislature to make political choices and the individual rights of

voters relative to the exercise of the franchise.2 Moreover, in terms of the individual-

rights component – and contrary to the majority’s perspective – there is no right to an

“equally effective power” of voters in elections, Majority Opinion, slip op. at 110. Cf.

Vieth, 541 U.S. at 288, 124 S. Ct. at 1782 (“[T]he [federal] Constitution . . . guarantees

equal protection of the law to persons, not equal representation in government to

equivalently sized groups. It nowhere says that farmers or urban dwellers, Christian

fundamentalists or Jews, Republicans or Democrats, must be accorded political

strength proportionate to their numbers.”). For example, the phenomenon of “packing,”

1
  See generally Vieth, 541 U.S. at 274-77, 124 S. Ct. at 1774-76 (discussing the history
of political gerrymandering in the United States); id. at 285, 124 S. Ct. at 1781 (“The
Constitution clearly contemplates districting by political entities, and unsurprisingly that
turns out to be root-and-branch a matter of politics.”); id. at 344, 124 S. Ct. at 1815
(Souter, J.) (observing “some intent to gain political advantage is inescapable whenever
political bodies devise a district plan, and some effect results from the intent”); id. at
358, 124 S. Ct. at 1823 (Breyer, J.) (explaining that “political considerations will likely
play an important, and proper, role in the drawing of district boundaries”); Gaffney v.
Cummings, 412 U.S. 735, 753, 93 S. Ct. 2321, 2331 (1973) (“Politics and political
considerations are inseparable from districting and apportionment.”).

2
  Cf. Vieth, 541 U.S. at 360, 124 S. Ct. at 1824 (Breyer, J., dissenting) (depicting
traditional or historically based voting-district boundaries as “an uneasy truce,
sanctioned by tradition, among different parties seeking political advantage”).


                                       [J-1-2018] - 3
and the corresponding dilution of the effect of some votes, will occur naturally as a

result of population distribution, particularly in urban areas where there is often an

aggregation of similar-minded voters. See Vieth, 541 U.S. at 290-91, 124 S. Ct. at

1783; id. at 359, 124 S. Ct. at 1824 (Breyer, J., dissenting).

       Given the political character of redistricting, the pervading question relating to

partisan considerations, with which courts have had great difficulty, is “how much is too

much?” Id. at 298, 124 S. Ct. at 1788 (quoting id. at 344, 124 S. Ct. at 1815 (Souter, J.,

dissenting)); accord id. at 313, 124 S. Ct. at 1796 (Kennedy, J., concurring)

(commenting on the search for “suitable standards with which to measure the burden a

gerrymander imposes on representational rights”). Rather than engaging this question

in these conventional terms, the majority proceeds to overlay factors delineated by the

Pennsylvania Constitution in relation to state-level reapportionment upon congressional

redistricting.   See Majority Opinion, slip op. at 119-124 (prioritizing the factors

delineated in Article II, Section 16 of the Pennsylvania Constitution).           Since these

considerations    are   not   constitutional   commands       applicable    to   congressional

redistricting, the majority’s approach amounts to a non-textual, judicial imposition of a

prophylactic rule.

       In this regard, it is significant that the majority’s new rule is overprotective, in that

it guards not only against intentional discrimination, but also against legislative

prioritization of any factor or factors other than those delineated in Article II, Section 16,

including legitimate ones. See generally Duckworth v. Eagan, 492 U.S. 195, 209, 109

S. Ct. 2875, 2883 (1989) (O'Connor, J., concurring) (explaining that prophylactic rules

“overprotect[]” the value at stake). Significantly, such additional factors include other

traditional districting criteria appropriate to political consideration -- such as the

preservation of communities of interest, avoidance of pitting incumbents against each


                                        [J-1-2018] - 4
other, and maintenance of the core of prior district lines. See League of Women Voters,

___ Pa. at ___, ___ A.3d at ___, 2018 WL 496907, *1 (Saylor, C.J., dissenting) (citing

Evenwel v. Abbott, ___ U.S. ___, ___, 136 S. Ct. 1120, 1124 (2016), Karcher v.

Daggett, 462 U.S. 725, 740, 103 S. Ct. 2653, 2663 (1983), and Holt v. 2011 Legislative

Reapportionment Comm’n, 620 Pa. 373, 422-23, 67 A.3d 1211, 1241 (2013)).3

       I do not dispute that prophylactic rules may be legitimate in certain contexts. But

they are, by their nature, vulnerable to claims of illegitimacy. See, e.g., Dickerson v.

United States, 530 U.S. 428, 465, 120 S. Ct. 2326, 2348 (2000) (Scalia, J., dissenting)

(depicting a prophylactic rule imposed by the Supreme Court of the United States as an

3
  I am in no way suggesting that the factors prioritized by the majority are not traditional
districting criteria or that they lack relevance to the claims of discrimination. My concern
is with the manner in which the majority rigidifies these factors in the congressional
redistricting context.

In this regard, the majority’s standard would seem to operate more stringently than that
suggested by Petitioners themselves, who urge this Court to set forth a test under
Article I, Section 5 embodying a more conventional equal protection litmus – that is, one
in which a challenger may prevail by demonstrating an intent to discriminate combined
with a discriminatory effect. See Brief for Petitioners at 68 (stating this Court should
adopt a standard whereby the challenger must show “intentional discrimination plus [a
changed] outcome of an actual congressional election”).

It is also not clear whether the requirement devised by the majority, as applied to state
legislative reapportionment, would alter the review in the relevant line of cases. For
example, I suspect that the state congressional redistricting plan approved in this
Court’s Holt decision would fail under the new regime imposed by the majority, since,
there, the Court found that the challengers had not established that a reapportionment
plan encompassing numerous political-subdivision splits violated Article II, Section 16 of
the Pennsylvania Constitution. See Holt, 620 Pa. at 383, 67 A.3d at 1217 (explaining
that the unsuccessful challenge to the 2012 state legislative reapportionment plan was
brought by voters “who live in the Commonwealth’s wards, municipalities, and counties
the [2012 Final Plan] split, often multiple times, to form Senate and House of
Representatives Districts”).        This circumstance appears particularly troublesome
because, although the state charter speaks directly to the constraints for state
legislative districts, it does not mention congressional districts at all.


                                      [J-1-2018] - 5
example of “judicial overreaching”).      The consideration of whether this sort of rule

should be imposed by the judiciary upon a process committed by the federal

Constitution to another branch of government seems to me to require particular caution

and restraint.   Accord Vieth, 541 U.S. at 301, 124 S. Ct. at 1789 (discussing the

drawbacks of “insertion of the judiciary into districting,” including “the delay and

uncertainty [it] brings to the political process and the partisan enmity it brings upon the

courts”); id. at 291, 124 S. Ct. at 1784 (alluding to the interests in “meaningfully

constrain[ing] the discretion of the courts, and to win public acceptance for the courts’

intrusion into a process that is the very foundation of democratic decisionmaking”).

       Quite clearly, the character of redistricting, and concomitant separation-of-

powers concerns, warrant special caution on the part of the judiciary in considering

regulation and intervention. See generally Colo. Gen. Assembly v. Salazar, 541 U.S.

1093, 1095, 124 S. Ct. 2228, 2229 (2004) (Rehnquist, C.J., dissenting from denial of

certiorari) (observing, in the context of a state supreme court’s broad insertion of the

judiciary into the redistricting process, that the constitutional “words, ‘shall be prescribed

in each State by the Legislature thereof’ operate as a limitation on the State” (emphasis

in original)). Indeed, as Justice Kennedy of the Supreme Court of the United States has

opined: “A decision ordering the correction of all election district lines drawn for partisan

reasons would commit federal and state courts to unprecedented intervention in the

American political process[,]” yielding “substantial intrusion into the Nation’s political

life.” Vieth, 541 U.S. at 306, 124 S. Ct. at 1792-93 (Kennedy, J., concurring).4




4
  Notably, this Court has previously recognized the more limited significance of the
Article II, Section 16 factors relative to congressional redistricting. See Erfer v.
Commonwealth, 568 Pa. 128, 142 n.4, 794 A.2d 325, 334 n.4 (2002).



                                       [J-1-2018] - 6
       From my point of view, the majority opinion fails to sufficiently account for the

fundamental character of redistricting, its allocation under the United States Constitution

to the political branch, and the many drawbacks of constitutionalizing a non-textual

judicial rule. For my own part, I would abide by the Court’s previous determination, in

the redistricting setting, that the Free and Equal Elections Clause provides no greater

protection than the state charter’s Equal Protection Clauses, which have been deemed

coterminous with the protection provided by the United States Constitution. See Erfer v.

Commonwealth, 568 Pa. 128, 138-39, 794 A.2d 325, 332 (2002).               I find that the

majority’s focus on a limited range of traditional districting factors allocates too much

discretion to the judiciary to discern violations in the absence of proof of intentional

discrimination.   Instead, I believe that, under the state and federal charters, the

discretion belongs to the Legislature, which should be accorded appropriate deference

and comity, as reflected in the majority’s initial articulation of the presumption of

constitutionality and the heavy burden borne by challengers. See Majority Opinion, slip

op. at 96.

       As I said in my previous dissenting statement, I appreciate that the

recommended factual findings of Judge Brobson of the Commonwealth Court suggest

that the Court may be faced with a scenario involving extreme partisan gerrymandering.

Were the present process an ordinary deliberative one, I would proceed to sift through

the array of potential standards to determine if there was one which I could conclude

would be judicially manageable. See generally Vieth, 541 U.S. at 292, 124 S. Ct. at

1784 (observing that, among the expressions of the four dissenting Justices in Vieth,

three different standards had emerged). In my judgment, however, the acceptance of

Petitioners’ entreaty to proceed with extreme exigency presents too great of an




                                      [J-1-2018] - 7
impingement on the deliberative process to allow for a considered judgment on my part

in this complex and politically-charged area of the law.

       Finally, as to the remedy, I disapprove of the imposition of a judicially-drawn map

for the above reasons.     Furthermore, as Justice Baer discusses at length, the per

curiam Order inviting the Legislature to redraw Pennsylvania’s congressional districts

provided very little time and guidance in the enterprise. See Concurring and Dissenting

Opinion, slip op. at 3, 8-11 (Baer, J.). Although I do not dispute that judicial intervention

may possibly be appropriate – where a constitutional violation is established based on

the application of clear standards pertaining to intentional discrimination and dilution of

voting power, and the Legislature has been adequately apprised of what is being

required of it and afforded sufficient time to comply – regrettably, I submit that this is

simply not what has happened here.



       Justice Mundy joins this dissenting opinion.




                                       [J-1-2018] - 8
