[J-20-2022] [MO: Baer, C.J.] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT

CAROL ANN CARTER, MONICA : No. 7 MM 2022 PARRILLA, REBECCA POYOUROW, : WILLIAM TUNG, ROSEANNE MILAZZO, : BURT SIEGEL, SUSAN CASSANELLI, LEE : ARGUED: February 18, 2022 CASSANELLI, LYNN WACHMAN, : MICHAEL GUTTMAN, MAYA FONKEU, : BRADY HILL, MARY ELLEN BALCHUNIS, : TOM DEWALL, STEPHANIE MCNULTY : AND JANET TEMIN, : : Petitioners : : : v. : : : LEIGH M. CHAPMAN, IN HER OFFICIAL : CAPACITY AS THE ACTING SECRETARY : OF THE COMMONWEALTH OF : PENNSYLVANIA; JESSICA MATHIS, IN : HER OFFICIAL CAPACITY AS DIRECTOR : FOR THE PENNSYLVANIA BUREAU OF : ELECTION SERVICES AND NOTARIES, : : Respondents : : ----------------------------------------------------------- : PHILIP T. GRESSMAN; RON Y. DONAGI; : KRISTOPHER R. TAPP; PAMELA GORKIN; : DAVID P. MARSH; JAMES L. : ROSENBERGER; AMY MYERS; EUGENE : BOMAN; GARY GORDON; LIZ MCMAHON; : TIMOTHY G. FEEMAN; AND GARTH : ISAAK, : : Petitioners : : : v. : : : LEIGH M. CHAPMAN, IN HER OFFICIAL : CAPACITY AS THE ACTING SECRETARY : OF THE COMMONWEALTH OF : PENNSYLVANIA; JESSICA MATHIS, IN : HER OFFICIAL CAPACITY AS DIRECTOR : FOR THE PENNSYLVANIA BUREAU OF : ELECTION SERVICES AND NOTARIES, : : Respondents :

DISSENTING OPINION OPINION FILED: March 9, 2022 JUSTICE BROBSON DECIDED: February 23, 2022

I. One Person, One Vote

Article I, Section 2 of the United States Constitution,1 as interpreted by the

Supreme Court of the United States, commands that congressional districts be

apportioned to achieve population equality—“one person, one vote.” See Evenwel v.

Abbott, 578 U.S. 54 (2016); Tennant v. Jefferson Cnty. Comm’n, 567 U.S. 758 (2012)

(per curiam); Karcher v. Daggett, 462 U.S. 725 (1983); Wesberry v. Sanders, 376 U.S. 1

(1964). There is no de minimis exception to this constitutional imperative. Karcher,

462 U.S. at 730-38; see also Vieth v. Pennsylvania, 188 F. Supp. 2d 532, 542 (M.D.

Pa. 2002) (“[T]he [United States] Supreme Court has squarely rejected any de

minimis exception to the requirement of absolute equality in population between

districts.”). Rather, the equal representation standard of the United States Constitution

requires that “as nearly as is practicable one man’s vote in a congressional election is to

be worth as much as another’s.” Wesberry, 376 U.S. at 7-8.

The United States Supreme Court has established a two-prong test to evaluate the

constitutionality of a congressional reapportionment plan under the one-person, one-vote

1“The House of Representatives shall be composed of Members chosen . . . by the People of the several States . . . .” U.S. Const. art. I, § 2 (emphasis added).

[J-20-2022] [MO: Baer, C.J.] - 2 standard. The first question asks whether the population differences could practicably

have been avoided through good-faith effort. Karcher, 462 U.S. at 730. If so, the second

question asks whether the differences were nonetheless necessary to achieve a

legitimate state objective. Tennant, 567 U.S. at 760 (citing Karcher, 462 U.S. at 740-41).

Although we are not here being asked to evaluate the constitutionality of a

reapportionment plan enacted through the legislative process outlined in our

Pennsylvania Constitution, the one-person, one-vote standard and the Karcher test apply

with equal force to a judicially created plan.

The Carter Plan, as it is called, fails the Karcher test. It proposes 17 congressional

districts—four with the ideal population of 764,865, four with a population of 764,866 (plus

one), and nine with a population of 764,864 (minus one). The Carter Plan, therefore,

provides for a two-person population deviation between the largest and smallest

congressional districts. While I acknowledge that it is mathematically impossible to create

17 districts of precisely equal population, it is possible, with good faith, to craft a plan with

less than a two-person deviation. Indeed, of the 13 proposed reapportionment plans

provided to this Court for its consideration, only two proposed a deviation of more than

one person. The Carter Plan is one of those two. Moreover, the Carter Petitioners, in

their Brief in Support of Exceptions to the Special Master’s Report (Carter Brief),

acknowledge that it was possible to create a plan with a one-person deviation. (Carter

Br. at 11 n.5.) The Carter Plan, therefore, fails the first part of the Karcher test.

The majority, nonetheless, has chosen the Carter Plan over the 11 other plans with

only a one-person deviation. Applying the second prong of the Karcher test, then, it is

the burden of the Carter Petitioners, and the majority by extension, to show that the

two-person deviation in the Carter Plan is “necessary to achieve a legitimate state

objective.” Tennant, 567 U.S. at 760. Again, the presence of other plans before the Court

[J-20-2022] [MO: Baer, C.J.] - 3 that satisfy all state and federal redistricting criteria with only a one-person deviation

proves the contrary. The majority concludes, however, that the Carter Petitioners “have

satisfied their burden by stating, with specificity, that the two-person deviation was

required to prevent [an] additional split of a Vote Tabulation District [(VTD)],” which it

contends is a recognized legitimate state interest. (Maj. Op. at 31.) In support, the

majority relies on this Court’s decision in Mellow v. Mitchell, 607 A.2d 204 (Pa. 1992).

In Mellow, this Court adopted the master’s recommendation to approve a proposed

reapportionment plan with a total maximum population deviation of 0.0111% over a

proposed redistricting plan with a total maximum population deviation of 0.0000017%, the

latter of which represented a difference of just one person. Mellow, 607 A.2d at 208, 215, 218. In making his recommendation, however, the master acknowledged that the

proposed reapportionment plan with the lowest population deviation “[fell] below other[]

[proposed reapportionment plans] precisely because the cost of achieving maximum

mathematical equality lies in having the congressional district boundaries split 22 election

precincts as well as 27 local governments.” Id. at 218. The proposed reapportionment

plan that was ultimately adopted by this Court, on the other hand, split only three

precincts. Id.

I have no qualms about accepting a small increase in the population deviation

between districts to avoid splitting 19 additional election precincts. However, here, unlike

the Mellow Court, the majority has made no attempt to evaluate whether the Carter Plan

performs superiorly with respect to splits of VTDs when compared to the 11 other plans

that achieved only a one-person deviation. Rather, the majority simply claims that

avoiding the split of just one additional VTD (not 19 election precincts, as was the case in

Mellow) constitutes a legitimate state interest that justifies the two-person population

deviation of the Carter Plan; satisfies the one-person, one-vote standard; and elevates

[J-20-2022] [MO: Baer, C.J.] - 4 the Carter Plan above all other plans that achieved population equality closer to zero.

Mellow simply cannot bear the weight of the majority’s reliance.

Moreover, while the majority appears willing to look past the 11 other proposed

plans that achieve closer-to-zero population equality in order to save one VTD in the

Carter Plan, it seems unphased by the fact that, while saving this one VTD, the Carter

Plan is the only proposed plan that splits the City of Williamsport (Lycoming County).

Indeed, Dr. Daryl DeFord, on whom the majority relies to support its selection of the Carter

Plan (Maj. Op. at 24), criticizes the Carter Plan for this particular split: “[O]ne plan (Carter)

splits the city of Williamsport, whose population of 27,754 is nowhere near to

necessitating a split.”2 Rebuttal Report of D. DeFord (for Gressman Math/Science

Petitioners) at 6 (Jan. 26, 2022) (emphasis added). By selecting the Carter Plan, the

majority improperly saves a VTD that purportedly had to be split to ensure as close to

equal population as practicable among the districts at the expense of an entirely

unnecessary split of the City of Williamsport. No legitimate state interest can be found in

this tradeoff.

For the above reasons, I respectfully disagree with the majority’s reading of Mellow

and its conclusion that the Carter Plan satisfies the one-person, one-vote standard.

Article I, Section 2 of the United States Constitution protects the sanctity of one person,

one vote, not one VTD. Accordingly, because I believe that the Carter Plan violates

2 In League of Women Voters v. Commonwealth, 175 A.3d 282 (Pa. 2018) (LWV I) (mem.) (per curiam), this Court specifically noted that any congressional reapportionment plan submitted to the Pennsylvania Governor by the Pennsylvania General Assembly for consideration “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.” LWV I, 175 A.3d at 290 (emphasis added).

[J-20-2022] [MO: Baer, C.J.] - 5 Article I, Section 2 of the United States Constitution, I must dissent from the majority’s

selection of that plan.

II. Neutral Standards/Methods Over Partisan Metrics

Separately, it has been 60 years since the United States Supreme Court first

waded into the “political thicket” to review and remedy malapportionment challenges. See

Baker v. Carr, 369 U.S. 186 (1962).3 Since then, the United States Supreme Court has

also waded into the thicket, rightly so, to address and remedy race-based or ethnic

redistricting decisions that violate the Equal Protection Clause of the United States

Constitution4 and/or the Voting Rights Act of 1965.5 See, e.g., Abbott v. Perez, 138 S. Ct. 2305 (2018); Cooper v. Harris, 137 S. Ct. 1455 (2017). Yet, the United States

Supreme Court has refused to do so to address and remedy claims of excessive

partisanship in the redistricting process, finding such claims nonjusticiable in the federal

courts. Rucho v. Common Cause, 139 S. Ct. 2484 (2019).

Much ink has been spilt in this case about this Court’s decision in League of

Women Voters v. Commonwealth, 178 A.3d 737 (Pa. 2018) (LWV II). In LWV II, this

Court held that challenges to congressional redistricting plans for excessive

partisanship—i.e., partisan gerrymanders—are justiciable under the Free and Equal

3 Two decades before Baker, Justice Frankfurter, writing for a plurality, affirmed the dismissal of a malapportionment challenge to congressional districts as involving a nonjusticiable political question. Colegrove v. Green, 328 U.S. 549 (1946) (plurality opinion), abrogated by Baker, 369 U.S. 186. “To sustain this action,” Justice Frankfurter wrote, “would cut very deep into the very being of Congress. Courts ought not to enter this political thicket.” Colegrove, 328 U.S. at 556. 4 “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. 5 52 U.S.C. § 10101 et seq.

[J-20-2022] [MO: Baer, C.J.] - 6 Elections Clause of the Pennsylvania Constitution.6 LWV II, 178 A.3d at 801-14. In

reaching this conclusion, the Court examined challenges to the Congressional

Redistricting Act of 2011 (2011 Plan), Act of December 22, 2011, P.L. 598, 25 P.S.

§§ 3596.101-.1501,7 and determined that the 2011 Plan constituted an excessive

partisan gerrymander in violation of the Free and Equal Elections Clause. Id. at 818-21.

In LWV II, then, this Court waded into the political thicket to review and remedy

excessive partisan gerrymanders under the Pennsylvania Constitution. Id. at 821-24. In

so doing, the Court interpreted the Free and Equal Election Clause as protecting voters

from congressional districts that create an “unfair,” or unconstitutional, partisan

advantage. Id. at 817. The Court concluded that a particular redistricting plan crosses

the line from fair to unfair and, thus, is unconstitutional, when such plan subordinates

neutral criteria—i.e., “compactness, contiguity, minimization of the division of political

subdivisions, and maintenance of population equality among congressional districts”—“to

extraneous considerations such as gerrymandering for unfair partisan political

advantage.” Id. (emphasis added). By extension, any redistricting plan that does not

cross that line is both fair and constitutional.

In short, LWV II is a partisan gerrymandering case. The current matter before this

Court, however, is not a partisan gerrymandering case. Indeed, no one in this litigation

has challenged any of the proposed plans as an unconstitutional partisan gerrymander

under LWV II. LWV II recognizes that the Free and Equal Elections Clause protects

Pennsylvanians from excessive, unconstitutional, and thus unfair partisanship in the

drawing of legislative districts. It does not, however, create any right in the people of

6 “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.” Pa. Const. art. 1, § 5. 7 The 2011 Plan was held unconstitutional by LWV I.

[J-20-2022] [MO: Baer, C.J.] - 7 Pennsylvania to the fairest among fair and lawful maps. The “fairest of the fair” inquiry is

not a thicket; it is a quagmire. It is an entirely subjective, partisan, and quintessentially

political inquiry that belongs in the political branches of our government, not in the courts.

Respectfully, the majority,8 in my view, grossly misreads the very narrow decision

in LWV II, emboldening this Court to serve as the mirror on the wall and choose the fairest

map of them all. (Maj. Op. at 18 (“[W]e conclude that consideration of partisan fairness,

when selecting a plan among several that meet the traditional core criteria, is necessary

to ensure that a congressional plan is reflective of and responsive to the partisan

preferences of the Commonwealth’s voters.”), 27 (noting Carter Plan “is reflective of and

responsive to the partisan preferences of the Commonwealth’s voters”), 36-37

(addressing partisan fairness and partisan metrics in its support of Carter Plan).) The

majority has essentially emerged from the political thicket and jumped into the partisan

quagmire. The long-term harm to the congressional redistricting process is not the

majority’s adoption of the Carter Plan, but the analysis that the majority uses to break a

partisan impasse and choose among the 13 proposed reapportionment plans, all but a

few of which satisfy the neutral redistricting criteria.

8 Although Justices Dougherty and Wecht join the majority opinion, they also file concurring opinions that, while accepting the use of partisan metrics when analyzing the proposed redistricting plans in this matter, do not embrace the use of those metrics with the fulsome enthusiasm expressed in the majority opinion. Rather, Justice Dougherty recognizes “that the metrics for this criterion remain somewhat in flux when compared to the more standardized measures of the traditional core criteria.” (Concurring Op. at 4 n.1 (Dougherty, J., concurring).) He further recognizes that no partisan fairness standard has emerged in this case. As for Justice Wecht, he recognizes in his concurring opinion that “the partisan fairness metrics used to evaluate the [13] submitted maps are useful heuristics to approximate partisan outcomes under conditions that have never occurred,” but he “caution[s] against surrendering to the allure of those metrics at the front end of an analysis.” (Concurring Op. at 14 (Wecht, J., concurring).) He observes that while the numbers may be “helpful to a comprehensive examination, . . . they must not be dispositive.” (Id.) Instead, he would relegate them to “a gut-check at the culmination of the process, rather than as a gatekeeping function at the start.” (Id.)

[J-20-2022] [MO: Baer, C.J.] - 8 By considering numerical partisan metrics and ultimately adopting a

reapportionment plan because it provides for “proportionality,” avoids “anti-majoritarian”

results, and attempts to offset a “structural tilt” in the political geography of Pennsylvania

that favors Republican candidates,9 the majority has invited, not discouraged, this Court’s

future involvement in the congressional redistricting process, whether in impasse

litigation, such as this one; a partisan gerrymander challenge, such as the LWV litigation;

or a “fairness” challenge to a legislatively enacted reapportionment plan signed into law

by the governor. While the “least-change” approach—a neutral tool that in its purest form

only makes minor revisions to existing legislative districts to account for population

changes—purportedly used to create the Carter Plan may be imperfect,10 it would have

9See, e.g., Report of M. Duchin (for Governor Wolf) at 2, 6 (Jan. 24, 2022); Report of J. Rodden (for Carter Petitioners) at 25 (Jan. 24, 2022) (noting that Carter Plan is “reflective of Pennsylvania’s statewide partisan preferences”); Report of J. Rodden (for Carter Petitioners) at 11 (Jan. 26, 2022) (criticizing plans that “would likely lead to counter-majoritarian outcomes”). 10 In a recent decision, the Wisconsin Supreme Court adopted the least-change approach as a neutral method to remedy the failure of Wisconsin’s legislative and executive branches to enact a congressional redistricting plan. See Johnson v. Wis. Elections Comm’n, 967 N.W.2d 469, 488-92 (Wis. 2021). In so doing, the court recognized that “[t]he existing maps were adopted by the legislature, signed by the governor, and survived judicial review by the federal courts” and that “[t]reading further than necessary to remedy their current legal deficiencies . . . would intrude upon the constitutional prerogatives of the political branches and unsettle the constitutional allocation of power.” Id. at 488. Thus, the court believed that the application of the least-change approach was a method by which it could remedy the malapportionment of Wisconsin’s districts, following the 2020 Census, without “endors[ing] the policy choices of the political branches” of Wisconsin’s government. Id. at 492. The circumstances presented in this matter, however, are different. Here, the Carter Plan applies the least-change approach to an 18-district congressional plan created by this Court (2018 Plan), not a plan enacted through the legislative process set forth in the Pennsylvania Constitution. Moreover, as a result of the 2020 Census, a congressional district must be eliminated. Thus, in order to apply the least-change approach to the 2018 Plan to arrive at the Carter Plan, the Carter Petitioners’ expert, Dr. Jonathan Rodden, did more than simply redraw certain district boundaries to achieve population equality; he eliminated completely, and necessarily, one congressional district. As a result, for many Pennsylvanians, particularly

[J-20-2022] [MO: Baer, C.J.] - 9 been preferable, in my view, for the majority to have full-throatedly adopted it instead of

using unquestionably partisan constructs to justify its selection of the Carter Plan. In my

judgment, where the judiciary is forced to adopt a legislative reapportionment plan, the

court should hew closely to nonpartisan standards (e.g., compactness, contiguity,

minimizing splits, etc.) or nonpartisan methods (e.g., the “least-change” approach),

eschewing partisan considerations or partisan approaches.

those along the Route 15 and Interstate 80 corridors, the least-change approach yields a big change in terms of who will represent them in Washington, D.C.

[J-20-2022] [MO: Baer, C.J.] - 10