Dissenting

I join Chief Justice Saylor’s dissenting statement in full. I write séparately to express my concern with the vagueness of the Court’s order. Despite its pronouncement that the 2011 map clearly, plainly, and palpably violates the Pennsylvania Constitution, the Court fails to identify the specific provision it so violates. This vagueness by the Court is problematic, because the parties raise several state constitutional claims, including the Speech Clause, the Free Association Clause, the Elections Clause, and the Equal Protection. Clause, each of which has a different mode of analysis., See generally PA. Const. art. I, §§ 1, 5, 7, 20, 26; Pap’s A.M. v. City of Erie, 571 Pa. 375, 812 A.2d 591, 612 (2002) (Speech Clause); Love v. Borough of Stroudsburg, 528 Pa. 320, 597 A.2d 1137, 1139 (1991) (Equal Protection Clause); Mixon v. Commonwealth, 759 A.2d 442, 449-50 (Pa. Cmwlth. 2000), aff'd, 566 Pa. 616, 783 A.2d 763 (2002) (Elections Clause). The Court’s order fails to give essential guidance to the General Assembly and the Governor, or this Court on how to-create a constitutional, non-gerrymandered map,

I am also troubled by the order striking down the 2011 Congressional map on the eve of our midterm elections, as well as the remedy proposed. by the Court. In. my view, the implication that this Court may undertake the task of drawing a congressional map on its. own raises a serious federal constitutional concern. See U.S. Const. art. I, § 4, cl. 1 (stating, “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof ]”) (emphasis added); Ariz. State Legislature v. Ariz. Indep. Redist. Comm’n, — U.S. —, 135 S.Ct. 2652, 2667-68, 192 L.Ed.2d 704 (2015) (concluding the1 Federal Elections Clause permits redistricting by the state legislature, Congress, or an independent redistricting commission). For these reasons, I conclude the Court’s approach is imprudent and I cannot participate in it. I respectfully dissent.

ORDER

AND NOW, this 22nd day of January, 2018, upon consideration of the Petition for Review, the Commonwealth Court’s proposed findings of fact and conclusions of law, the briefs of the parties, intervenors, and amici curiae, and the oral argument presented on January 17, 2018, the Court orders as follows:

First, the Court finds as a matter of law that the Congressional Redistricting Act of 2011 clearly, plainly and palpably violates the Constitution of the Commonwealth of Pennsylvania, and, on that sole basis, we hereby strike it as unconstitutional. Accordingly, its further use in elections for Pennsylvania seats in the United States House of Representatives, commencing with the upcoming May 15, 2018 primary, is hereby enjoined.

Second, should the Pennsylvania General Assembly choose to submit a congressional districting plan that satisfies the requirements of the Pennsylvania Constitution, it shall submit such plan for consideration by the Governor on or before February 9, 2018. If the Governor accepts the General Assembly’s congressional district-ing plan, it shall be submitted to this Court on or before February 15, 2018.

Third, should the General Assembly not submit a congressional districting plan on or before February 9, 2018, or should the Governor not approve the General Assembly’s plan on or before February 15, 2018, this Court shall proceed expeditiously to adopt a plan based on the evidentiary record developed in the Commonwealth Court. In anticipation of that eventuality, the parties shall have the opportunity to be heard; to wit, all parties and interve-nors may submit to the Court proposed remedial districting plans on or before February 15, 2018.

Fourth, to comply with this 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.

Fifth, the Executive Branch Respondents are advised to anticipate that a congressional districting plan will be available by February 19, 2018, and are directed to take all measures, including adjusting the election calendar if necessary, to ensure that the May 15, 2018 primary election takes place as scheduled under that remedial districting plan.

Sixth, as acknowledged by the parties, the March 13, 2018 special election for Pennsylvania’s 18th Congressional District, which will fill a vacancy in an existing congressional seat for which the term of office ends in 11 months, shall proceed under the Congressional Redistricting Act of 2011 and is unaffected by this Order.

Opinion to follow.

Jurisdiction is retained.

Justice Mundy files a Dissenting Statement.

Concurring and Dissent

I join the per curiam order (PCO) to the extent it concludes that the districts as set forth by the Congressional Redistricting Act of 2011 are unconstitutional. I also concur in the PCO’s invitation to the Legislature and Governor to craft constitutional maps, recognizing that' redistricting is a legislative function.’ Butcher v. Bloom, 415 Pa. 438, 203 A.2d 556, 569 (1964) (“The task of reapportionment is not only the responsibility of the Legislature, it is also a function which can be best accomplished by that elected branch of government.”).

I find myself in an awkward position regarding the PCO’s directive that the primary election shall proceed with new maps on May 15, 2018. I understand the Court’s desire to follow this schedule as it is arguably counterintuitive to believe that the current map is unconstitutional and, nevertheless,'direct its usage in the May 2018 election. There are, however, other forces at play.

When faced with an unconstitutional map, courts • should determine “whether the imminence of [the primary and] general elections requires the utilization of [a prior plan] notwithstanding [its] invalidity” or whether a constitutional map “can practicably be effectuated” in time for the pending election. Id. at 568 (quoting Lucas v. Forty-Fourth General Assembly of State of Colorado, 377 U.S. 713, 739, 84 S.Ct. 1459,12 L.Ed.2d 632 (1964)) (internal quotation marks omitted). In Butcher, we allowed the election to proceed employing maps that we had concluded were unconstitutional to avoid' “[s]erious disruption of orderly state election processes and basic governmental functions.”' Id. at 568-69.

As in Butcher, I believe the dangers of implementing a new map for the May 2018 primary election risks “[s]erious disruption of orderly state election processes and bá-sic governmental functions.” Id. It is naive to think that disruption will not occur. Prospective candidates, incumbents and challengers alike, have been running for months, organizing, fundraising,' seeking their party’s endorsements, determining who should be on canvassing and - telephone lists, as well as undertaking the innumerable other tasks implicit in any campaign — all with a precise understanding of the districts within which they are to run, which have been in place since 2011. The change of the districts’ boundary lines at this time could result in candidates, again incumbents and challengers alike, no longer living in the - districts where they have been carrying out these activities for a year or more. This says nothing of the average voter, who thought he knew his Congressperson and district, and now finds that-all has changed within days of the circulation of nomination petitions.

In this regard, the 18th Congressional District in southwestern Pennsylvania is worthy of specific mention. A special election will be held there on March 13, 2018. If a new map is indeed implemented for the 2018 election, voters in this district would be electing a representative in March in one district while nomination petitions would be circulating for a newly-drawn district, which may or may not include the current candidates for the special election. Again and respectfully, I find the likelihood for confusion, if not chaos, militates strongly against my colleagues’ admittedly admirable effort to correct the current map prior to the May 15, 2018 primary election.

Moreover, while the Court has set forth a timeline for resolution of’this issue which theoretically allows for implementation of a new, constitutional map for the May primary election, this ' timeline will face immense and perhaps insurmountable pressure through likely subsequent litigation. Regardless of the merit of any claims, litigation takes time, and under the proposed schedule, there is no time.

Finally, I do not favor the alternative of moving this year’s primary- election, It has been the tradition in Pennsylvania to hold a spring primary and a fall general election. This year, Pennsylvanians will elect a Governor, a Lieutenant Governor, a United States Senator, all of Pennsylvania’s Congressional Representatives, one-half of the Pennsylvania Senate, and all of the Pennsylvania House of Representatives. We cannot determine the impact of moving a primary election from the timeframe it has,long been held to a mid-summer substitute. I am uncomfortable risking aberrant results through such a departure.

Accordingly, I believe it more prudent to apply our holding in this case to the 2020 election cycle, which would allow ample time for our sister branches of government to comply with our holding with guidance from our forthcoming opinion, as well as providing candidates and their supporters the opportunity to campaign in their newly established districts, and, most importantly, to reduce the risk of voter confusion.

Having said all of this, I readily acknowledge the Court’s commendable attempt to compress the process of correcting the map to conduct timely primary elections. I will cooperate with the Court as it pursues its admirable goal, so long as all involved receive due process. I cannot, however, join the PCO without this expression because of my concern that a well-intentioned effort can still produce an unsatisfactory process and conclusion.

Dissent

Consistent with my previous vote disfavoring the assumption of extraordinary jurisdiction, I agree with the Commonwealth Court’s original position that it would have been appropriate to stay this matter pending anticipated guidance from the Supreme Court of the United States in Gill v. Whit-ford, No, 16-1161 (U.S.). See Order dated Oct. 16, 2017, in League of Women Voters of Pa. v. Commonwealth, No. 261 M.D. 2017 (Pa. Cmwlth.). Indeed, the Supreme Court has stayed a series of recent federal court directives to state legislatures in cases lodging partisan gerrymandering challenges pending its review, most recently, as of last week. See Order dated Jan. 18, 2018, in Rucho v. Common Cause, No. 17A745 (U.S.). I hold the view that restraint is appropriate, particularly in light of the timing of the present challenge to a congressional redistricting plan that was enacted in 2011 and the proximity of the impending 2018 election cycle. Cf. Concurring and Dissenting Statement, op. at 285-86 (Baer, J.).

The crafting of congressional district boundaries is quintessentially a - political endeavor assigned to state legislatures by the United States Constitution. See U.S. Const. art. I, § 4. Notably, certain political objectives — such as the aim to. avoid pitting incumbents against each other or to maintain the cores, of prior districts — have been recognized as traditional redistricting criteria. See Karcher v. Daggett, 462 U.S. 725, 740, 103 S.Ct. 2653, 2663, 77 L.Ed.2d 133 (1983). Federal and state courts also appreciate the propriety of preserving communities of interest which may not overlap with political subdivision lines. See, e.g., Evenwel v. Abbott, — U.S. -, 136 S.Ct, 1120, 1124, 194 L,Ed.2d 291 (2016); Holt v. 2011 Legislative Reapportionment Comm’n, 620 Pa. 373, 422-23, .67 A.3d 1211, 1241 (2013). Furthermore, in terms of such communities, it seems plain that 'legislators are in a superior. position to address their interests. Accord Vieth v. Jubelirer, 541 U.S, 267, 358, 124 S.Ct. 1769, 1824, 158 L.Ed.2d 546 (2004) (Breyer, J., dissenting) (“It is precisely because politicians are best able to predict the effects of boundary changes that the districts they design usually make some political sense.” (emphasis in original)).

To the extent that a judicially manageable standard can be articulated in this arena, I believe the proper litmus should abide such considerations. I also consider it appropriate to take'into account matters of degree relative to the inevitable political and partisan dynamics associated with redistricting by a legislative body.

I realize that the recommended factual findings of Judge Brobson of the Commonwealth Court raise substantial concerns as to the constitutional viability of Pennsylvania’s current congressional districts when considered under standards that have recently been applied by some federal courts in decisions, which, again, are under review by the United States Supreme Court. My position -at this juncture is only that I would not presently upset those districts, in such an extraordinarily compressed fashion, and • without clarifying — for ■ the benefit of the General Assembly and the public — the constitutional standards by which districting is now being adjudged in Pennsylvania.

Justice Mundy joins this dissenting statement.