Chief Justice CASTILLE.
This is the second set of direct appeals to this Court arising out of the work of the 2011 Legislative Reapportionment Commission ("LRC") of the Commonwealth of Pennsylvania.
Previously, we filed a per curiam order on January 25, 2012, and declared that the legislative redistricting plan filed by the LRC on December 12, 2011 (the "2011 Final Plan"), was contrary to law under Article II, Section 17(d) of the Pennsylvania Constitution, and in accordance with the directive in that constitutional provision,
The substantive task of the LRC during decennial legislative redistricting is governed by Article II, Sections 16 and 17 of the Pennsylvania Constitution. Section 16 sets forth specific criteria the LRC must utilize in creating the legislative district map:
PA. CONST. art. II, § 16. Section 17 further describes the redistricting procedure, and specifically provides that, once the LRC has adopted a plan, "any aggrieved person" may appeal directly to this Court. PA. CONST. art. II, § 17(d). Section 17 also commands that, if that aggrieved citizen "establishes that the final plan is contrary to law," this Court "shall issue an order remanding the plan to the commission and directing the commission to reapportion the Commonwealth in a manner not inconsistent with such order." Id.
Holt I, 38 A.3d at 719-21 (footnotes omitted). Justices Baer, Todd and McCaffery joined the majority opinion by this author in Holt I, Justices Saylor and Eakin each filed a concurring and dissenting opinion, and Justice Orie Melvin filed a dissenting opinion. Id. at 716-64.
After the Holt I decision was filed, Senator Dominic Pileggi and Representative Michael Turzai — both members of the LRC by virtue of their positions as majority leaders of their respective caucuses — filed suit in federal court seeking to enjoin this Court's directive that existing districts should be used in the 2012 election cycle and until the Court approved a constitutional reapportionment plan. In a February 8, 2011 order, the federal district court denied relief and concluded that the 2012 elections must proceed under the only existing map, the 2001 Plan. Pileggi v. Aichele, 843 F.Supp.2d 584 (E.D.Pa.2012).
Ultimately, after one public meeting, the LRC produced a new preliminary redistricting plan in April 2012. Timely exceptions, and alternative plans, were lodged, but the LRC ultimately adopted the preliminary plan as its 2012 Final Plan by a 4-1 vote on June 8, 2012, with LRC member, and Senate Minority Leader, Senator Jay Costa voting against the Plan. Appellants then filed petitions for review at thirteen separate docket numbers in this Court, all of which were consolidated for purposes of briefing, argument, and decision.
We consider the parties' arguments in light of our scope and standard of review, which was a central point of dispute in Holt I, leading the Court to discuss the appropriate review paradigm at some length. Our scope of review is plenary, subject to the restriction that "a successful challenge must encompass the Final Plan as a whole;" in addition, we will not consider claims that were not raised before the LRC. 38 A.3d at 733 (citing Albert, supra and In re Reapportionment Plan, 497 Pa. 525, 442 A.2d 661, 666 n. 7 (1981) ("In re 1981 Plan")). Our standard of review is defined by the Pennsylvania Constitution: the plan may be held unconstitutional only if the appellants establish that it is "contrary to law." 38 A.3d at 733 (citing PA. CONST. art. II, § 17(d)). In Holt I, we determined that the LRC's 2011 Final Plan was contrary to law because it did not comply with the requirements, set forth in Article II, Section 16 of the Pennsylvania Constitution, that legislative districts be "composed of compact and contiguous territory as nearly equal in population as practicable," and that political subdivisions should not be divided to form districts "unless absolutely necessary." PA. CONST. art. II, § 16. This Court engages in a de novo, non-deferential review of the specific challenges raised by the appellants. 38 A.3d at 735-36. A final plan is not entitled to a presumption of constitutionality, but "enjoys the same status as any action or decision where the challenging party bears the burden; and here, the burden is upon appellants to show that the plan is contrary to law." Id. at 735.
As we stated in Holt I, our Constitution "permits any aggrieved person to file an appeal from the LRC's plan directly to this Court." Id. at 724-25 (citing PA. CONST.
Appellants in the appeal docketed at 39 WM 2012 ("Costa") are LRC member, and Senate Minority Leader, Senator Jay Costa and the entire Democratic Senate Caucus. Appellants in 40 WM 2012 ("Amadio"), Tony Amadio and Joe Spanik, and appellants at 41 WM 2012 ("Lattanzi"), Richard Lattanzi and Richard Ford, who are the mayor and a councilman of the City of Clairton, in Allegheny County, join in and incorporate the arguments in Costa. Appellant in 129 MM 2012 ("Kim"), is an elected official and voter in Dauphin County, who joins the Costa brief and also forwards additional arguments specific to Harrisburg, Pennsylvania. Appellants in 42 WM 2012 ("Vargo") are voters from Westmoreland, Allegheny and Cumberland Counties. Pro se appellant Dennis J. Baylor, at 126 MM 2012 ("Baylor"), is a voter in Berks County. Appellants in 127 MM 2012 ("Sabatina") are elected officials and voters from Philadelphia and Reading, Pennsylvania. The appellants in 128 MM 2012 ("Schiffer") are voters from Delaware County. In the appeal docketed at 130 MM 2012 ("Brown"), appellants are residents and elected officials of West Chester and Phoenixville, in Chester County. At docket number 131 MM 2012 ("Doherty"), appellants are residents of Philadelphia, Montgomery, Bucks, Lehigh and Fayette Counties, and Audubon, Pennsylvania. Appellants in 132 MM 2012 ("Cruz") are voters and elected officials in Philadelphia County. Finally, appellants in 134 MM 2012 ("Shapiro") are voters and elected officials from Montgomery and Delaware Counties who join the Costa brief and add further argument in their own brief.
In all of these appeals, the LRC is appellee. The LRC does not dispute the standing of any of the appellants.
In their current appeal, the Holt appellants raise a global challenge to the LRC's 2012 Final Plan. They argue that the plan as a whole, like its predecessor, is contrary to law because it contains numerous political subdivision splits that are not absolutely necessary, in contravention of Article II, Section 16 of the Pennsylvania Constitution. According to appellants, the alternate Holt plan maintains "a roughly equivalent level of population deviation.... while employing significantly fewer political subdivision splits" as directed in Holt I, and proves that the LRC's 2012 plan still violates Section 16. Holt Brief at 15 (quoting
The Holt appellants further argue that the LRC could have easily achieved a substantially greater fidelity to all of the mandates of Section 16 — compactness, contiguity, and integrity of political subdivisions — yet it failed to do so. According to the Holt appellants, the LRC could have reduced total splits (counties, municipalities, and wards) as follows:
2012 Final Plan Holt Alternate Plan
HOUSE 221 86
SENATE 37 17
Holt Brief at 16; LRC Brief at 27-28. The Holt appellants allege that the extra splits in the LRC's plan "serve no legitimate purpose." Holt Brief at 20.
The Holt appellants also argue that the 2012 Final Plan violates Section 16's requirements of compactness, using the "Polsby and Popper method"
The Costa appellants similarly challenge the 2012 Final Plan as a whole, and argue that the LRC's maps continue to violate constitutional mandates, while serving instead to preserve the partisan results of political gerrymandering.
Appellant Kim joins in the Costa brief for a global challenge, but adds argument specific to Dauphin, Perry and Cumberland Counties, which, under the LRC's new map, are split into three senatorial districts even though Cumberland County's entire population could be contained in one. Kim notes that, although the 2012 Final Plan restores the City of Harrisburg to its historical place in the 15th Senatorial District, a result for which she advocated in Holt I, the new plan "significantly reduces the importance of Dauphin County's
The Vargo appellants challenge the 2012 Final Plan as a whole, adopting the Holt appellants' legal analysis with respect to compactness and contiguity requirements. The Vargo appellants also argue specifically that the plan contains unnecessary splits for Senate districts in Cumberland, Butler, Huntingdon, Warren, and Washington Counties, and wards in the City of Pittsburgh, thus diluting the African-American vote there, and House districts in Montgomery, Allegheny, Dauphin, Delaware, and Bucks Counties. According to the Vargo appellants, these splits are not absolutely necessary, and "many are not even arguably or marginally necessary, to achieve any Constitutionally valid objective." Vargo Brief at 15. The Vargo appellants assert that the LRC has provided no explanation for the excessive political subdivision splits, despite the Holt alternate plan's easy eradication of those extra splits. The Vargo appellants claim that there is no reason to expect the LRC will correct these problems in any future remand, and thus this Court should fashion affirmative relief itself or through appointment of a master. Id. at 28.
Acting pro se, appellant Baylor challenges the plan as a whole and argues that the LRC unnecessarily divided counties, otherwise violated constitutional requirements, and has materially altered the form of the Commonwealth's government. Baylor asserts that, as a lifelong resident of Berks County, he has voted in elections for over forty years, but has never had an opportunity to pick a Berks County resident for the General Assembly. Baylor has fashioned an alternate plan that he says does not include unnecessary splits, and which he claims demonstrates that the LRC's 2012 Final Plan does not meet constitutional requirements.
Next, the Sabatina appellants, who are state representatives from Philadelphia and Reading, challenge the 2012 Final Plan as a whole, and also raise more localized challenges arising out of the configuration of their own House districts: the 170th, 172nd, 173rd and 174th in Philadelphia, and the 126th and 127th in Reading. They argue that their new districts contain numerous unnecessarily split wards, and are neither compact nor contiguous, in violation of Section 16 requirements. The Sabatina appellants contend that these splits result in absurd district shapes which serve only improper political considerations, and they have presented an alternate plan for their districts that avoids this
The Schiffer appellants object specifically to the House map insofar as it splits Haverford Township in Delaware County, arguing that this split is one of many unnecessary splits in the entire 2012 Final Plan. The Schiffer appellants submitted an alternate plan to the LRC, which describes all 203 House districts, reduces the number of township splits in both Delaware and Montgomery Counties, and spares Haverford Township from division. According to the Schiffer appellants, that alternate plan would reduce the LRC's political subdivision splits and shows the LRC's plan is contrary to law because Section 16 allows only splits that are absolutely necessary.
The Brown appellants complain that the 2012 Final Plan unnecessarily splits the 155th, 156th and 157th House districts in the municipalities of West Chester and Phoenixville, in Chester County, and that these splits were effected only for partisan political purposes, i.e., to remove registered Democrats and the current Democratic candidate for the 156th District for future elections. According to the Brown appellants, these splits — and others in the 2012 Final Plan, such as those in Philadelphia County — also create legislative districts that violate Section 16 requirements of contiguity and compactness.
The Doherty appellants reside in Philadelphia, Montgomery, Bucks, Lehigh and Fayette Counties, in political subdivisions that they claim were unnecessarily divided by the LRC's plan. They provide an alternate plan which they state reduces unnecessary municipal splits in House districts "by a whopping 90%" and, they claim, the ward splits can also be reduced by 87%. Doherty Brief at 9-10. The Doherty appellants also claim that their alternate plan reduces county splits in the Senate by 25% and ward splits by 85%, which they argue further demonstrates that the LRC's plan as a whole has political subdivision splits that are not absolutely necessary, and thus it is contrary to law.
The Cruz appellants, who reside in the City and County of Philadelphia, challenge the 2012 Final Plan as a whole. Their alternate plan is designed to show that the LRC's plan has an unconstitutional impact on Latino and other minority voter communities, and was adopted in violation of the Sunshine Act, the Voting Rights Act, and due process requirements. The Cruz appellants argue that the LRC sought "to frustrate local established political structures," and could have instead created a "constitutional plan with political areas respected as compact and contiguous, Latino and African American minority interests given a fair opportunity and due process and good faith afforded to all." Cruz Brief
The Shapiro appellants, who join in the arguments presented by the Costa appellants as to the LRC's plan as a whole, also provide localized challenges specific to Montgomery County and other Philadelphia suburbs, to show that the LRC placed express constitutional requirements beneath partisan political interests in adopting the 2012 Final Plan. The Shapiro appellants argue that the plan improperly and unnecessarily fragments Montgomery County into six Senate districts, none of which is wholly contained in that county. In their view, the sole purpose of this obvious gerrymandering is "to remove Democratic-leaning voters from potentially competitive suburban districts." The Shapiro appellants claim that the subdivision splits which created these artificial districts turn what would and should be "swing" districts into districts with a comfortable Republican edge. Shapiro Brief at 4, 8. Finally, the Amadio and Lattanzi appellants simply join the brief and arguments in Costa, without making any further argument on their own behalf.
The LRC responds to all appellants in one omnibus brief. The LRC states that it went "back to the drawing board" after Holt I and created a redistricting plan that
LRC Brief at 1.
In seeking to explain the importance of compromise and political factors in the process of creating a new district map, the LRC quotes from the historical record of the 1967-68 Constitutional Convention, including a statement from one delegate during debate regarding proposed schemes for redistricting:
LRC Brief at 6 (quoting Delegate Jerry Powell, Daily Journals of the Pennsylvania Constitutional Convention of 1967-1968, Volume 1, No. 38 at 532 (February 7, 1968)). Citing to the same historical source, the LRC further notes the intention behind having partisan leaders from the General Assembly centrally involved in the reapportionment process: "The use of the partisan leaders of each [legislative] chamber was intended to serve both as an opportunity to harness the voices of all legislators of both parties through their leaders, and as a check and balance." Id.
As a result of this recognized need for legislative involvement, compromise and balance, argues the LRC, it must not be limited to consideration of the specific objective criteria listed in Section 16, but rather, the LRC must also be free to consider more subjective factors which it has the experience and discretion to apply. The LRC argues that its authority to consider these additional factors is constitutionally conferred, as it is inherent in the design of the commission described in Section 17. Specifically, the LRC insists that it is empowered to take into account existing or historical districts or communities of interest, to preserve the cores of existing legislative districts in order to ensure a continuity of representation which voters have chosen in the past (i.e., to enhance incumbents' electability), as well as to address majority/minority districts within the bounds of the Voting Rights Act. The LRC argues that it must include these political
The LRC claims that the population deviations of less than 10% in the 2012 Final Plan are well within the recalibrated latitude envisioned in Holt I, see, e.g., 38 A.3d at 761, and the federal constitutional limits cited in Voinovich v. Quilter, 507 U.S. 146, 161, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993). In Voinovich, the U.S. Supreme Court quoted from Brown v. Thomson, 462 U.S. 835, 842-843, 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983), as follows: "[M]inor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State. Our decisions have established, as a general matter, that an apportionment plan with a maximum population deviation under 10% falls within this category of minor deviations. A plan with larger disparities in population, however, creates a prima facie case of discrimination and therefore must be justified by the State." 507 U.S. at 161, 113 S.Ct. 1149 (internal quotation marks and citations omitted).
The LRC states that its 2012 Final Plan has achieved a total range of population deviation of 7.88% in the House and 7.96% in the Senate, and no legislative district deviates more than 3.98% from the "ideal" district size.
More pertinently, the LRC argues that none of the appellants have met the burden of establishing that the 2012 Final Plan, as a whole, is contrary to law. With regard to alternative plans presented by various appellants, the LRC complains that these plans were not subject to public review or comment — they were "completely unvetted" — and that the various appellants drew the plans without being subject to the various political considerations that the LRC believes must be taken into account when adopting a plan, such as respect for communities of interest, continuity of representation, and the Voting Rights Act. LRC Brief at 21. Repeating its failed argument from Holt I, the LRC insists that this Court should not even include alternate plans in its scope of review, though it concedes that the scope of review
Moreover, the LRC argues, the Section 16 language regarding political subdivision splits that are not "absolutely necessary" has never been taken as an inflexible, mathematical standard, and Holt I did not set "firm parameters" for its limits. LRC Brief at 25 (quoting 38 A.3d at 757). Nevertheless, the LRC argues that, due to population distribution in Pennsylvania, it is indeed mathematically necessary to split 15 counties and two municipalities (Philadelphia and Pittsburgh) in establishing Senate districts. Moreover, the LRC explains, the 2012 map for the Senate divides only ten counties which have less than the population of an ideal district, and these splits are justified by other factors. The LRC emphasizes that its map for the House likewise does not split any municipalities unless mathematically necessary, and claims that it divides only nine counties and 51 municipalities not mathematically required by the dictates of population. LRC Brief at 27-32. Moreover, the LRC insists that the districts created by the 2012 Final Plan are compact and contiguous in a way that the unconstitutional 2011 plan was not, and particularly, Senate Districts 3, 15 and 35, which were specifically called into question in Holt I, have been redrawn. See Holt I, 38 A.3d at 757. The LRC concedes that there remain strange district shapes under the 2012 map but explains that these have been made necessary in many places by geographical features such as mountains, rivers, valleys and forests, and in some instances, by a few largely uninhabited areas.
According to the LRC, only one county seat, Pottsville, Schuylkill County, which could mathematically have been united, remains divided in the 2012 Final Plan, and this division for purposes of the House is only because both the Mayor and the City Council of Pottsville specifically requested that it remain divided between the 123rd and 125th House districts. The LRC further argues that it has "labored under the proposition that, as much as population permits, the choice of the people in their elected officials should not be vitiated. As such, where possible, the [LRC] used cores of existing districts as the starting point of its reapportionment efforts.... to respect the choice of voters, and to foster the efficiency that stems from continuity of representation." LRC Brief at 40.
With respect to the Holt appeal specifically, the LRC argues as follows. First, the LRC criticizes the Holt appellants' method of counting political subdivision splits, because the Holt appellants include what they term "fractures," thus over-counting the number of counties, municipalities and wards that are divided. In any event, the LRC argues that the mere fact that the appellants created a plan with fewer raw splits — a point the LRC does not dispute — does not signify that the 2012 Final Plan is contrary to law because appellants did not have to concern themselves with important political considerations, public comment or the need to reach a majority consensus. Moreover, the LRC maintains, the difference between the number of splits in the current Holt plan and the LRC's 2012 Final Plan is much less substantial than the discrepancy at issue in Holt I's review of the 2011 Final Plan, which the Court struck down. According to the LRC, the difference between the LRC's 2012 Final Plan and the Holt plan is "negligible" and "insignificant." LRC Brief at 44. And, the LRC
The LRC further notes that a comparison of the 2012 Final Plan with earlier plans shows it is one of the strongest ever produced, with comparatively fewer subdivision splits in both Senate and House districts, and these older plans should be viewed as evidence to the same extent the Holt plan — or any other alternate plan — is so viewed. Furthermore, according to the LRC, adoption of the Holt plan would throw the Commonwealth into electoral chaos, and would create unnecessarily radical reapportionment. The Holt plan, according to the LRC, draws 42 House incumbents into legislative districts with another incumbent, meaning it would result in the loss of at least 21 current elected representatives as a result of redistricting alone, rather than as a result of choices made by voters. LRC Brief at 59-60. Finally, the LRC argues that the Holt alternate plan raises various Voting Rights Acts concerns.
With regard to the Holt appellants' arguments regarding contiguousness, the LRC focuses on "geographical anomalies" that it says makes any non-contiguous districts found in the 2012 Final Plan unavoidable. The LRC states that it "chose to avoid creating new splits and dividing citizens and communities of interest for the sole purpose of unifying a handful of nearly uninhabited geographic quirks." LRC Brief at 55-56. And, with regard to the Holt appellants' challenge to the compactness of districts in the 2012 Final Plan, the LRC states that the Polsby and Popper method espoused by the Holt appellants is just "one of several privately produced mathematical formulae intended to measure compactness in some rigid, mechanical manner," and that this method is not binding on the LRC or this Court. In fact, the LRC argues, another method of measuring compactness — e.g., the "Reock Test" — shows that the Holt alternate plan and the 2012 Final Plan are essentially indistinguishable, and that given the geographic anomalies of the Commonwealth, the 2012 Final Plan is sufficiently compact. Id. at 57-58.
Likewise, the LRC argues that the Costa alternate plan does not prove that the 2012 Final Plan is contrary to law, but merely that the LRC's plan does not serve the competing political interests of the Costa appellants. Moreover, in the LRC's opinion, the Costa plan makes only minor reductions in the number of county splits, and only on the Senate side. Furthermore, the LRC notes, the 2012 Final Plan resolves issues relating to Harrisburg by replacing it in the 15th Senatorial District, and reducing the number of Senate Districts in Dauphin County to two, the mathematical minimum it may have.
Next, the LRC rejects the alternative plan presented by the Doherty appellants, claiming that it is rife with mathematical errors, lacks legal descriptions, and also, because those appellants did not present the alternate plan to the LRC prior to this appeal, and thus, they have waived any right to present it now.
The LRC next addresses the procedural and substantive claims of pro se appellant Baylor. The LRC argues first that Baylor's claim of Sunshine Act violations is meritless; the LRC asserts it never conducted material deliberations at closed "executive sessions," and in fact, "went to great length to avoid even the appearance of impropriety by ensuring that there was never a time when a quorum of Commissioners.... were even in the same room together other than a properly noticed meeting." LRC Brief at 79.
The LRC also rejects the Sabatina appeal, claiming it focuses on localized challenges to ward splits in the appellants' Reading and Philadelphia districts, rather than on the 2012 Final Plan as a whole, and therefore should be dismissed. In any event, argues the LRC, the Sabatina appeal does not establish that the 2012 Final Plan is contrary to law.
The LRC rejects the Cruz appellants' challenge as well, reiterating its position that it never held an executive session, and that all aspects of the reapportionment process were open and transparent. The LRC insists that appellant Angel Ortiz was permitted to testify within the time limits established for its public hearings, and the 2012 Final Plan recognizes and respects the growth of the Latino population in Pennsylvania; however, the LRC states that there are still not enough Latinos in any single compact area to constitute the majority of a Senate district. The LRC also argues that the Shapiro appellants focus on Montgomery County, rather than the redistricting map as a whole, and their claims are therefore not sufficient to prove that the 2012 Final Plan is contrary to law. In any event, the LRC states, when viewed as a whole, the divisions in Montgomery County are reasonable considering the dense population of the region and the county's vastly varied constituent municipalities. With regard to the Amadio appeal, the LRC points out that the appellants focus on the split of Beaver County, rather than challenging the 2012 Final Plan as a whole. In any event, states the LRC, a greater portion of Beaver County is unified in the 2012 Final Plan than in the earlier map, and the Senate plan splits the county only one time over its mathematical minimum. The LRC similarly rejects the Lattanzi appeal, narrowly focused as it is on the movement of the City of Clairton, in Allegheny County.
As we have stated, our task in resolving the instant challenges is to determine whether the LRC's 2012 Final Plan is a map of compact and contiguous territory that "satisfies the constitutional requirement that the districts, in both houses of the state legislature, are as nearly of equal population as is practicable and that no political subdivision shall be divided in forming such districts unless absolutely necessary. In conducting this review, we must examine the final plan as a whole."
The LRC's 2012 Final Plan is not entitled to any presumption of constitutionality. Holt I, 38 A.3d at 734. As the Holt I Court stressed last year, "[t]here is no basis for indulging a presumption of constitutionality in these circumstances. The most that can be said is that the Final Plan enjoys the same status as any action or decision where the challenging party
Preliminarily, we note that the LRC asks this Court to reconsider a central premise of Holt I, i.e., our holding that the scope of review in redistricting appeals properly includes alternate plans submitted by the challengers, including plans created by private citizens. LRC Brief at 20-22. Notably, as the Holt appellants have stressed, the LRC did not file an application for reconsideration of this or any other issue in Holt I, and so, it is questionable whether this argument is available. See Pa.R.A.P. 2542(a)(1) (application for reconsideration must be filed within 14 days after entry of judgment or other order). On the other hand, we recognize that the litigation here, involving a new Final Plan, arguably is sufficiently distinct that the LRC's position resembles a request to revisit binding precedent forwarded in a circumstance of unrelated cases. In any event, on the merits of the claim, and aside from obvious concerns of stare decisis, the LRC has offered no persuasive reason to reconsider, much less to overrule, Holt I.
As the LRC concedes, the scope of review was specifically disputed in Holt I and the Court went to great lengths to explain the grounds for its determination, including a meticulous examination of our prior redistricting precedent, and the LRC's misapprehension of that precedent. 38 A.3d at 727-38. With respect to our specific holding that challengers to a final plan may proffer alternate plans in an attempt to discharge their burden of proof, five Justices were in agreement, see id. at 762 (Saylor, J., concurring and dissenting), and no Justice expressed any disagreement. See id. at 762-63 (Eakin, J., concurring and dissenting) (partially joining); id. at 763-64 (Orie Melvin, J., dissenting). In explaining this holding, we noted, inter alia, that "legal challenges in general, and appellate challenges in particular, commonly involve an offering of alternatives. It is not effective advocacy to simply declare that a trial judge's ruling was erroneous; the good advocate addresses what the judge should have done instead." 38 A.3d at 730-31. We also credited, at least in part, the Holt I appellants' argument that the LRC's position was tantamount to saying that a Final Plan was unreviewable:
Id. at 733.
The LRC's current criticisms of such alternate plans — i.e., that they are not
We also reject, as we did in Holt I, the LRC's argument that its Final Plan should be automatically afforded special deference over challengers' plans, based on the "constitutional commission system," or the "practical difficulty" of assessing alternatives created by private citizens. LRC Brief at 21. As we made clear in Holt I, the Constitution simply "does not dictate any form of deference to the LRC, does not establish any special presumption that the LRC's work product is constitutional, and it also places no qualifiers on this Court's scope of review." 38 A.3d at 730. See also id. at 733-34, 753 n. 31. Of course, this is not to deny that the primary focus is upon the Final Plan, and not upon alternate plans. Thus, although the Court in Holt I concluded that Holt's alternate plan there "overwhelmingly" showed that the 2011 Final Plan was infirm, the Court also made clear that the LRC, upon remand, was not obliged to adopt, or even to start with, that alternate plan in going about its task to devise a constitutional map. Id. at 756-57. In addition, our articulation of the review paradigm in Holt I, as well as our holding that the 2011 Final Plan was contrary to law, did not deny the difficulty of the LRC's task or the considerable discretionary authority reposed in the LRC. See
In the alternative, the LRC has accepted the governing review standard here, and has presented more developed arguments responding to the specific challenges, and alternate plans, that have been forwarded in this matter. This litigation posture stands in contrast to Holt I, where the LRC had "premised its central defense against these global challenges upon its position on the judicial review points," did not as directly engage the alternate plans, and did not offer pointed rebuttals to the powerful showing that Holt's alternate plan made about the constitutionality of the 2011 Final Plan. Holt I, 38 A.3d at 752. The resulting elucidation by the LRC, including its explication of certain legitimate additional considerations under which it labors, has proved helpful to our decisional task in this appeal.
Before turning to the LRC's more targeted responses, we will address one remaining significant point implicating our review. As we have noted, the LRC argues that the requirements expressly set forth in Section 16 are not the only factors it may properly take into account when redistricting the Commonwealth. Specifically, the LRC argues that Section 16's substantive proscriptions concerning population equality, compactness, contiguity
LRC Brief at 12-13. In fact, the LRC's importation of "absolutes" into Section 17 is overstated. Indeed, Section 17(h) specifically contemplates a circumstance where the LRC fails in its task: "If a preliminary, revised or final reapportionment plan is not filed by the commission within the time prescribed by this section, unless the time be extended by the Supreme Court for cause shown, the Supreme Court shall immediately proceed on its own motion to reapportion the Commonwealth." In short, Section 17, unlike Section 16, does not speak in absolute terms, much less in absolutes that dilute the substantive constraints in Section 16. Of course, the LRC should deem it imperative to make a good faith effort to timely accomplish its task of adopting a constitutional reapportionment plan.
The LRC goes further in its description of Section 17's supposed absolute effect, claiming that the largely-legislative composition of the LRC dictates "other factors which are inherent in the Commission's role in crafting a reapportionment plan," factors that the LRC believes "comprise legitimate, and necessary considerations for the Commission in undertaking its constitutional role." The LRC identifies what it describes as this "second layer" of "inherent" constitutional considerations as comprising: (a) a respect for communities of interest, (b) a respect for continuity of representation, and (c) a respect for the constraints of the federal Voting Rights Act. It cannot be disputed that the LRC has to pay heed to the third factor; but, this is a fact of federal law and the Supremacy Clause, U.S. CONST. art. VI, cl. 2, not a command inherent in Section 17's description of the composition of the LRC. The LRC's description of the other two factors warrants further examination.
The LRC says that Holt I "highlighted the concept of `communities of interest'" when, in our discussion of the challenges in that case which focused only on "particular" political subdivision splits, we stated that "we trust that the LRC, in formulating its new plan, and necessarily reducing the political subdivision splits and fractures, will be attentive to the concerns of historically unified subdivisions, such as County seats." LRC Brief at 13 (citing Holt I, 38 A.3d at 758). Obviously, the
With respect to the "continuity of representation" interest that it says is constitutionally commanded, the LRC states that "[t]here is a legitimate interest in, wherever practical in light of the other reapportionment factors, maintaining the continuity of representation by keeping in place the cores of existing legislative districts." The LRC then states that the U.S. Supreme Court has observed that "`preserving the cores of prior districts and avoiding contests between incumbents' [sic] are legitimate redistricting considerations." LRC Brief at 14 (quoting Karcher v. Daggett, 462 U.S. 725, 740, 103 S.Ct. 2653, 77 L.Ed.2d 133 (1983)). We note that Karcher was a case involving federal congressional redistricting in New Jersey, and the Court was not speaking of "inherent" constitutional considerations under Pennsylvania state law, or under any state constitution for that matter. Rather, the plan at issue in Karcher was adopted by the state legislature (just as federal redistricting in Pennsylvania is conducted legislatively, and not by commission), and the Court made clear it was speaking only of state legislative policies, not constitutional considerations: "Any number of consistently applied legislative policies might justify some variance, including, for instance, making districts compact, respecting municipal boundaries, preserving the cores of prior districts, and avoiding contests between incumbent Representatives." 462 U.S. at 740, 103 S.Ct. 2653. Karcher is not authority for the notion that this interest is of Pennsylvania constitutional dimension, on a par with the command to respect political subdivisions.
Furthermore, the notion that the Constitution independently, and tacitly, commands special respect for prior districting plans or incumbencies can be a mischievous one. The Constitution directs that the LRC will be comprised of the four partisan leaders of the General Assembly, with an agreed-upon, or Court-designated, fifth member as chair. Redistricting certainly requires choices and line-drawing, decisions which may affect the existing membership, and certainly will affect the future composition of the General Assembly. At least from the perspective of the legislative members of the LRC, the task is inherently political: the legislative members represent the interests of their caucuses and the shared interests of the General Assembly as a whole. Naturally, political parties seek to protect their own incumbent seats, and it is perhaps no less natural that one or another party might go further and seek to press a perceived partisan advantage. See Holt I, 38 A.3d at 745 ("redistricting has an inevitably legislative, and therefore an inevitably political, element; but the constitutional commands and restrictions on the process [in Section 16] exist precisely as a brake on the most overt of potential excesses and abuse."). In an instance where there is a lack of bipartisan cooperation among legislative members, the presence of the fifth member should ensure that an agreement can be reached, and should serve as a brake upon the most excessive of purely partisan strivings. See Specter, 293 A.2d at 17 ("[E]qual representation on the Commission provided to the majority and minority members of each house precludes the reapportionment process from being unfairly dominated by the party in power at the moment of apportionment. In addition,
As we understand the constitutional commands, there is nothing at all to prevent a particular reapportionment commission from considering political factors, including the preservation of existing legislative districts, protection of incumbents, avoiding situations where incumbent legislators would be forced to compete for the same new seat, etc., in drawing new maps to reflect population changes. However, we are unpersuaded by the argument that these political concerns are constitutionalized, that they must be accommodated, or, more to the dispute sub judice, that their consideration can justify what would otherwise be a demonstrated violation of the specific constitutional constraints enumerated in Section 16. These "political" factors can operate at will — so long as they do not do violence to the constitutional restraints regarding population equality, contiguity, compactness, and respect for the integrity of political subdivisions. In short, the requirements in Section 16 necessarily trump mere political factors that might color or corrupt the constitutional reapportionment process. Holt I, 38 A.3d at 745. See also Wilson v. Kasich, 134 Ohio St.3d 221, 981 N.E.2d 814, 820 (2012) (citing Holt I, 38 A.3d at 745) (Ohio Constitution does not prevent apportionment board from considering partisan factors in its apportionment decision, although partisan factors cannot override politically neutral constitutional requirements); In re Reapportionment of the Colorado Gen. Assembly, ___ P.3d ___, 2011 WL 5830123, *3 (Colo.2011) ("Other nonconstitutional considerations, such as the competitiveness of a district, are not per se illegal or improper; however, such factors may be considered only after all constitutional criteria have been met"); In re Legislative Districting of the State, 370 Md. 312, 805 A.2d 292, 326 (2002) ("The constitution `trumps' political considerations. Politics or non-constitutional considerations never `trump' constitutional requirements.").
The LRC paints its goals of preserving the cores of existing legislative districts, maintaining the existing partisan makeup of the General Assembly, and protecting incumbents as appropriate attempts to ensure that the citizens — and not reapportionment commissioners — choose their legislators. In the LRC's view, upheaval or uncertainty in the electoral process must be avoided, and "historical" legislative districts should be preserved out of respect for the choices of the voting public and in the interest of efficiency. However, we are not so naïve as not to recognize that the redistricting process may also entail an attempt to arrange districts in such a way that some election outcomes are essentially predetermined for voters — "safe seats" and the like. Again, we do not doubt the legitimacy of employing such political factors in the redistricting process — or, put more precisely, nothing in the Constitution prohibits their consideration. The constitutional reapportionment scheme does not impose a requirement of balancing the representation of the political parties; it does not protect the "integrity" of any party's political expectations. Rather, the construct speaks of the "integrity" of political subdivisions,
But, this does not mean that a desire to protect incumbency, or to preserve prior district lines, or to maintain the political balance from a decade before, can go further and excuse a plan that achieves those political ends by doing unlawful violence to the restraints specified in Section 16. The political winds, and voter preferences, may shift over time. Citizens within a political subdivision may want a realistic chance to elect someone other than their incumbent. Assume a redistricting map in place which one party views as unfairly balanced (politically) to solidify or ensure the power of another party. In the next redistricting process, the party that considers itself aggrieved by the old map can seek to rework the map to accomplish what it views as a restoration of political balance — or even to tilt the balance more heavily in its favor. There is nothing in the Constitution to prevent such a politically-motivated effort — so long as it does not do unlawful violence to the core restraints expressed in Section 16. In short, there is no "preference for incumbency" or preservation of party representation restraint in our Constitution prohibiting future reapportionment commissioners from seeking to achieve this end; and if that view secures a majority vote of that year's LRC, and it does not do violence to the Section 16 restrictions, presumably, it can become law.
This is not an academic exercise. The Costa appellants, comprising the entire Democratic Senate Caucus, claim that the Senate district map in this Final Plan is not bipartisan at all, but essentially represents the preferences of the Republican Senate Caucus. The Costa appellants further allege that the 2001 Senate map already resulted in Republican dominance out of proportion to party registration and party voting patterns in the Commonwealth. The Costa appellants then claim that the 2012 Senate map produced by the Republican Caucus, and ultimately adopted in the 2012 Final Plan, was designed to achieve partisan political objectives, i.e., to maintain Republican incumbencies and to preserve or improve Republican performance out of proportion to what the Costa appellants believe are the actual preferences of the Pennsylvania electorate.
We need not credit these arguments. We offer them merely to demonstrate the flaw in the LRC's argument concerning the supposed constitutionalization of prior redistricting plans, and to demonstrate the limited
Notwithstanding comparatively brief excursions into claims that the 2012
We doubt neither of these assertions; on the other hand, we recognize that improvement was inevitable once the Holt I Court announced, in the prospective guidance it afforded, that the LRC upon remand need not devise a reapportionment plan that "pursue[s] the narrowest possible deviation [in population among districts], at the expense of other, legitimate state objectives, such as are reflected in our charter of government." 38 A.3d at 760. We suggested that this prospective recalibration in the acceptable range of deviation from the ideal population for each district "should allow more breathing space for concerns of contiguity, compactness, and the integrity of political subdivisions." Id. at 759. The 2012 Final Plan contains population deviations that are significantly greater than the deviation ranges employed in the 2011 Final Plan: under the 2012 Final Plan, the range of population deviation for the House is 7.88% (compared to 5.98% in the 2011 Final Plan), and for the Senate it is 7.96% (compared to 3.89% in the 2011 Final Plan). Indeed, the effect is so obvious, the Holt appellants suggest that the increase in population deviation alone accounts for the "improvement" in the LRC's 2012 Final Plan.
What is more important than the fact that the new plan is "better," or that the appellants claim that alternate plans they have devised prove that the LRC's better plan still contains subdivision splits that were not "absolutely necessary," is that Holt I made clear that "we do not direct a specific range for the deviation from population equality ... [n]or do we direct the LRC to develop a reapportionment plan that tests the outer limits of acceptable deviations." Id. at 761. We issued those caveats because we recognized that "the law in this area remains complex and dynamic," we respected the "considerable discretion" retained by the LRC in fashioning a constitutional plan, and we had no doubt the LRC was up to the task, and would engage in a good faith effort to devise a constitutional map. Id. The significance of these observations is twofold. First, even in pursuit of protecting the integrity of political subdivisions, the question is not one of mere mathematics or computer schematics: multiple constitutional and practical (geography, demographic distribution) values must be balanced in this exercise in line-drawing. And, second, it is not even possible to set a specific standard of deviation in population
According to the Pennsylvania Constitution, the Commonwealth must be divided into 50 Senate and 203 House districts. Based on 2010 census data, the ideal House district has a population of 62,573; the largest House district in the 2012 Final Plan has a population of 65,036, and the smallest has a population of 60,110. The ideal Senate district has a population of 254,048; the largest Senate district in the 2012 Final Plan has a population of 264,160, and the smallest has a population of 243,946. As noted, no legislative district, Senate or House, deviates more than 3.98% from the "ideal" district size, with a total deviation of 7.88% in the House and 7.96% in the Senate. Not surprisingly, there is no population equality challenge forwarded in these appeals.
The appellants argue that, while employing the same basic ranges of population deviation as the LRC, they have produced maps with fewer political subdivision splits. And, to take the Senate map for instance, measured by raw numbers, the Holt and Costa alternatives indeed contain fewer subdivision splits, including splits of counties, the largest of political subdivisions. (For example, the Costa plan presented the LRC with ten fewer county splits — 20% of the total number of splits — than the Republican Caucus map, which was ultimately adopted as the 2012 Final Plan.) This is but a starting point for analysis of the legality of the plan, however, since there are a number of other factors to measure.
Another factor in favor of appellants, and frankly the one giving most reason for pause beyond the production of alternate plans with fewer subdivision splits, arises from the LRC premising so much of its argument upon the notion that preservation of the cores of prior districts, and protecting incumbents and the current political makeup of the General Assembly, are concerns requiring constitutional accommodation in the formulation of a new map. As we have noted, such political concerns may indeed be pursued and considered, so long as their accommodation does not cause a demonstrated violation of Section 16 factors, factors which are politically neutral. The difficulty, however, resides in attempting to identify with any level of precision where and how, if at all, these political factors cross the line, and can be said to have caused subdivision splits that were not absolutely necessary. There is no relevant record of the reasons why particular splits were made, pointing in either direction. We are not unsympathetic to the plight of citizen challengers who have no way of going behind the plans that were produced, or assessing generalized responsive justifications. And, there is nothing inherent in the redistricting process to preclude the LRC from being more transparent in its intentions. But, on the other hand, the commission process is the process the Constitution has provided, the
There are several factors that persuade us to conclude that the 2012 Final Plan is not contrary to law, as against the challenge that it contains subdivision splits that are not absolutely necessary. For one thing, unlike in Holt I, this is not a case where the challengers' presentation "overwhelmingly" shows the existence of political subdivision splits that rather obviously were not made absolutely necessary by competing constitutional, demographic, and geographic factors, and indeed where it was "inconceivable" that the number of subdivision splits was "unavoidable." See Holt I, 38 A.3d at 756. The pure mathematics are not nearly as dramatic with the 2012 Final Plan. The proffered alternate plans this time around thus more directly implicate the Court's repeated caution that the question is not whether there exists an alternative redistricting map which is claimed to be "preferable" or "better" than the LRC's map, but rather whether the LRC's proffered plan, which must balance multiple considerations, fails to meet core and enumerated constitutional requirements. Albert, 790 A.2d at 995 (citing In re 1981 Plan, 442 A.2d at 665).
Viewed in raw terms (and not merely in comparison with other plans), the 2012 Final Plan has few raw splits when viewed in comparison to the total number of counties, municipalities and wards in the Commonwealth. In the Senate, the 2012 Final plan splits only 25 out of 67 counties, only two out of 2563 municipalities, and only ten out of 4462 wards. In the House, the 2012 Final Plan splits 50 out of 67 counties (many of those splits being inevitable based on population alone), 68 out of 2563 municipalities, and 103 out of 4462 wards. We agree with the LRC that the number of splits, over and above those numbers which would be inevitable even in the absence of other constitutional factors, is remarkably small.
The LRC's new plan is not perfect, nor is it directly responsive to every challenger's argument respecting individual subdivision splits. But, as we emphasized in Albert and reaffirmed in Holt I, our focus necessarily must be on the plan as a whole rather than on individual splits and districts, Albert, 790 A.2d at 996-98, given that "a certain amount of subdivision fragmentation is inevitable since most political subdivisions will not have the `ideal' population for a House or Senate district." Id. at 993 (citing Specter, 293 A.2d at 23). See also Holt I, 38 A.3d at 758 ("In the end, however, we recognize that the Pennsylvania Constitution permits absolutely necessary political subdivision splits, and that some divisions are inevitable."). By necessity, a reapportionment plan is not required to solve every possible problem or objection in order to pass constitutional muster. Moreover, respecting the point that it may be possible to produce maps with fewer subdivision splits, that circumstance alone proves little, since respect for the integrity of political subdivisions is but one of multiple state constitutional and federal commands that must be accommodated.
Another consideration of some significance is that, even in the face of the objections and alternate plans that were proffered, the 2012 Final Plan, which lacks the stark, facially problematic features of the 2011 Final Plan, was devised and accepted by a majority of the LRC in the wake of
Finally, in measuring the apparent strengths of the 2012 Final Plan against the probative value of alternate plans with fewer subdivision splits, we do not discount that redistricting efforts may properly seek to preserve communities of interest which may not dovetail precisely with the static lines of political subdivisions. Dean Gormley, whose hands-on experience and writings in this area proved helpful to the Court in Holt I, made the following point concerning communities of interest in a law review article that we cited with approval in Holt I:
Holt I, 38 A.3d at 746 (quoting Gormley, Racial Mind-Games and Reapportionment, 4 U. PA. J. CONST. L. 735, 780-81 (2002)). Accord Holt I, 38 A.3d at 745 (noting that constitutional restrictions in Section 16 "recognize that communities indeed have shared interests for which they can more effectively advocate when they can act as a united body and when they have representatives who are responsive to those interests."). We believe that this caution, though articulated in the context of concerns with equal protection and race, is no less appropriate when considering other, specifically identified constitutional redistricting concerns.
Balancing all of these interests, we believe that the 2012 Final Plan is not contrary to law on grounds that it does not respect the integrity of political subdivisions.
The remaining challenges to the 2012 Final Plan — based on alleged violations of Section 16's mandate that districts be "of compact and contiguous territory" — fail for much the same reasons as do the challenges premised upon alleged unnecessary splits of political subdivisions. We first note that only the Holt appellants challenge the 2012 Final Plan as a whole on these additional grounds; other challengers focused on specific districts, e.g., the Costa appellants claim the 35th Senatorial District should have been more compact, and the Sabatina appellants object to the shapes of the 127th and 174th House Districts. The Holt appellants rely on the Polsby and Popper method for measuring objective compactness of districts (see
With regard to Section 16's requirement that legislative districts be comprised of "contiguous territory," we have stated that a contiguous district is "one in which a person can go from any point within the district to any other point (within the district) without leaving the district, or one in which no part of the district is wholly physically separate from any other part." Specter, 293 A.2d at 23. The LRC again defends the 2012 Final Plan based on geographic anomalies that make certain non-contiguous districts in the 2012 Final Plan unavoidable; the LRC notes that the same seven non-contiguous districts exist in both the 2011 and 2012 Final Plans. We did not strike the 2011 Final Plan on the basis that its districts were insufficiently contiguous. The LRC points out that, in these situations, it was faced with choosing between creating additional political subdivision splits and unifying areas divided by a "handful of nearly uninhabited geographic quirks." LRC Brief at 55-56. Furthermore, our independent review of the LRC's Senate and House maps discloses no overt instances of bizarrely shaped districts, bespeaking (as appellants allege) only an intent to gather together certain targeted blocs of voters. In this context, we do not believe the appellants have proven that the 2012 Final Plan is contrary to law because legislative districts are insufficiently contiguous.
The matter has been ably briefed, both by concerned citizens and the LRC. For the reasons we have articulated above, we reaffirm Holt I as against the various challenges made to the decision; and we further determine that, as against the specific challenges presented in these various appeals, the LRC, in crafting the 2012 Final Plan, sufficiently heeded this Court's admonition that it "could have easily achieved a substantially greater fidelity to all of the mandates in Article II, Section 16" than it did in its unconstitutional 2011 Final Plan. See Holt I, 38 A.3d at 718. Moreover, we hold that the appellants have not demonstrated that the 2012 Final Plan is contrary to law. We therefore conclude that the LRC has utilized the
Jurisdiction relinquished.
Former Justice ORIE MELVIN did not participate in the consideration or decision of these appeals.
Justice EAKIN and BAER, Justice TODD and Justice McCAFFERY join the opinion.
Justice SAYLOR files a concurring opinion.
Justice SAYLOR.
My assessment of the 2011 Legislative Reapportionment Plan, and my conclusion that it satisfied constitutional requirements, are a matter of record. See Holt v. 2011 Legislative Reapportionment Comm'n, 614 Pa. 364, 447-48, 38 A.3d 711, 762 (2012) ("Holt I") (Saylor, J., concurring and dissenting). Although expressing receptivity to the Court's movement to a "more circumspect position regarding the role of population equality," id., I was of the view that prospective guidance would have been appropriate. Ultimately, I noted that, in view of the substantial deference to be accorded to the LRC's 2011 plan, it satisfied constitutional requirements.
Initially, however, I wish to note that, as before, my view of the actions of the 2011 Legislative Reapportionment Commission (the "LRC") differs somewhat from that of the majority. As I suggested in Holt I, particularly in view of the many difficulties (including, perhaps, necessary compromises) inherent in crafting a reapportionment plan, I believe that criticism of the internal process by which the LRC performs its constitutional obligations should be undertaken with caution. Contrary to the majority's assertions, moreover, the LRC's present advocacy does not appear to overstate the constitutional commands under which it operates. Rather, it seems to me, for example, that the LRC appropriately points out that Article II, Section 17 requires that the Commission be composed mainly of legislative floor leaders, accomplish its work in a set timeframe, and act by majority vote; and reasonably explains why continuity of representation, while not constitutionally required, represents a "legitimate consideration" that the LRC may, in its discretion, take into account. See Brief for LRC, at 12-15, 40.
Redistricting is, by design, a legislative undertaking. See Holt I, 614 Pa. at 420, 38 A.3d at 745 (acknowledging that redistricting has an "inevitably legislative" component); see also Butcher v. Bloom, 415 Pa. 438, 461, 203 A.2d 556, 569 (1964) ("The composition of the Legislature, the knowledge which its members from every part of the state bring to its deliberations, its techniques for gathering information, and other factors inherent in the legislative process, make it the most appropriate body for the drawing of lines...."). As such, it often involves amorphous and immeasurable "background factors" — which have been aptly described as a "second
A logical consequence is that the Commission's final work product is, by necessity, reviewed largely for an abuse of discretion. I recognize that it is now binding precedent that a final plan approved by the LRC does not carry a presumption of constitutionality, and as such, it is not reviewed deferentially. See Holt I, 614 Pa. at 401-02, 38 A.3d at 734. Nevertheless, it is difficult to perceive how such a holding is not merely symbolic or semantic in nature, particularly given the limited tools that have been developed in the case law since the present redistricting methodology was adopted in the 1968 Constitution. Indeed, the very mention of "outer limits" which the LRC may or may not "test," Holt I, 614 Pa. at 445-46, 38 A.3d at 761, invokes the language of discretion, see id. at 441, 38 A.3d at 758 (referencing the LRC's "discretionary task within the limits set by the Constitution"); Majority Opinion, at 1231 (suggesting that there is "considerable discretionary authority reposed in the LRC" to perform its mission); id. at 1236 (recognizing that protecting district lines may be honored as a discretionary matter within constitutional limitations), a concept that incorporates a range of permissible choices that are reasonable and non-arbitrary, and that subsumes deferential review as an essential aspect. In short, the LRC's ability to exercise discretion implies a deferential standard of review. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143, 118 S.Ct. 512, 517, 139 L.Ed.2d 508 (1997) (referring to "deference" as "the hallmark of abuse-of-discretion review").
In summary, the Court has only a few definable standards in reviewing a reapportionment plan, such as population deviation benchmarks and a strict contiguity requirement enforced except in the rarest of situations. Beyond that, alternate plans forwarded by challengers assist the Court to employ its intuitive judgment as to whether the LRC has "gone too far," and hence, abused its discretion. Whether or not we say deference is at work, the acknowledgement of discretion and the allocation of the burden of proof accord with the character of the exercise that lies at the heart of redistricting — which, as noted, is legislative and political.
PA. CONST. art. II, § 17 (footnotes omitted).
42 U.S.C. § 1973. We note that the Cruz appellants' arguments based on alleged Voting Rights Act violations are identical to claims that were made in federal court with regard to the 2001 district map, which remained in effect after Holt I, but the district court denied relief. Pileggi v. Aichele, 843 F.Supp.2d at 597 ("Under these unique circumstances, we are compelled to conclude that the election should proceed under the only-existing plan, the 2001 Plan. The granting of a temporary restraining order at this juncture would make no sense. Clearly, it would not be in the public interest."). The Cruz appellants have not provided further record support nor have they developed their Voting Rights Act argument in the instant appeal challenging the 2012 Final Plan. The claim therefore fails.
The LRC's claim of factual misrepresentation is also persuasively rebutted by Holt:
Holt Reply Brief in Opposition at 2-3 (emphases original).
Our present commentary on the contrasting litigation posture adopted by the LRC in these appeals is not intended as a criticism of the LRC or its distinguished counsel. The positions taken on the prior appeals, while narrower than here, were focused and well articulated, even though the characterizations proved to be unsupported by our precedent. The point in distinction offered in text merely recognizes the helpfulness of the fuller and more pointed response, including a more specific engagement with the challenges proffered, that have been articulated, in the alternative, by the LRC in these appeals.
541 U.S. at 360-61, 124 S.Ct. 1769 (Breyer, J., dissenting) (emphasis in original). See also id. at 363-64, 124 S.Ct. 1769 ("The party that controls the process has no incentive to change it. And the political advantages of a gerrymander may become ever greater in the future. The availability of enhanced computer technology allows the parties to redraw boundaries in ways that target individual neighborhoods and homes, carving out safe but slim victory margins in the maximum number of districts, with little risk of cutting their margins too thin.").
