Pennsylvania Redistricting Cases: the 1990s

In re 1991 Pennsylvania Legislative Reapportionment Commission530 Pa. 335, 609 A.2d 132 (Pa. 1992), cert. denied sub nom. Walker v. Pennsylvania Legislative Reapportionment Commission, 504 U.S. 921 ( 1992), and Pecora v. Pennsylvania Legislative Reapportionment Commission, 505 U.S. 1207 (1992), and Loeper v. Pennsylvania Legislative Reapportionment Commission, 506 U.S. 819 (1992)

Plaintiffs challenged the legislative apportionment plan adopted by the Legislative Reapportionment Commission on the grounds that it violated the state constitutional requirement for compactness and contiguity and equality of population and the state constitutional prohibition against dividing political subdivisions unless absolutely necessary, that it violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, that it was a partisan political gerrymander, that it violated the Voting Rights Act, and that it had various other infirmities.

The Supreme Court of Pennsylvania upheld the plan against all challenges.   It found that dividing some political subdivisions was necessary to achieve equality of population and that the Commission had acted properly in making equality of population the overriding objective.  It rejected the claim that the plan was a political gerrymander because the plaintiffs, two candidates seeking to run against incumbents, submitted no evidence that they were part of an identifiable group suffering a history of disenfranchisement or lack of political power.  The Court rejected the claim that the plan violated the Voting Rights Act because the Black-majority districts it created had Black voting age populations of less than 65 percent.  The Court found that Black voting age populations of 56 to 58 percent were sufficient to give Black voters an opportunity to elect representatives of their choice in four of the seven Senate districts in Philadelphia, which was an increase over the three Black-majority districts under the former plan.

Harrison v. Pennsylvania Legislative Reapportionment Commission, No. 92-0603, 1992 WL
95909 (E.D. Pa. Apr. 21, 1992)

Following the final order of the Supreme Court of Pennsylvania upholding the legislative plan, plaintiffs attacked it in federal court as a violation of § 2 of the Voting Rights Act because none of the four Black-majority districts in Philadelphia had a total Black population of at least 65 percent.  The single-judge court rejected the challenge, refusing to adopt 65 percent as a hard and fast requirement and finding that the percentage of African Americans in each district was sufficient to ensure that they could both nominate and elect candidates of their choice.  The Court found that there was a substantial percentage of crossover voting by white voters for African American candidates, that the adopted plan had the unanimous support of all minority organizations, and that no minority organization was supporting plaintiffs' challenge.

Donatelli v. Casey826 F. Supp. 131 (E.D. Pa. 1993), aff'd sub nom. Donatelli v. Mitchell, 2 F.3d 508 (3rd Cir. 1993)

As part of its new legislative plan, the Legislative Reapportionment Commission had collapsed the old Senate District 44 in Allegheny and Westmoreland counties in western Pennsylvania into the old District 43 and had created a new District 44 in eastern Pennsylvania from parts of the counties of Berks, Chester, Lehigh, and Montgomery.  Pennsylvania senators serve staggered terms, and while the senators from odd-numbered districts were scheduled to be elected at the 1992 general election, senators from even-numbered districts were not scheduled to be elected until 1994.  Senator Pecora, who had previously been elected from the old District 44 but moved his residence east to reside in the new District 44, continued to represent the 44th district, even after it had been moved 250 miles across the state to a region where none of the voters in the new district had had an opportunity to vote for or against him.  The Senate considered the question of whether a vacancy had been created in District 44 and resolved that it had not.  Plaintiff voters in the new 44th district brought an action under 42 U.S.C. § 1983 alleging a violation of the Equal Protection Clause and demanding that an election be held in District 44 "as soon as possible."

A single-judge federal district court evaluated the equal protection challenge using the rational basis test and found that the substantial population shift within the State justified the creation of a new district in the east and that the disenfranchisement of the voters in District 44 was temporary—until the 1994 election.  The Court of Appeals affirmed.

Mellow v. Mitchell530 Pa. 44, 607 A.2d 204 (Pa. 1992), cert. denied sub nom. Loeper v. Mitchell, 506 U.S. 828 (1992)

The 1991 reapportionment of seats in Congress caused the number of Pennsylvania's congressional seats to decrease by two, from 23 to 21.  The Pennsylvania Legislature failed to enact a 21-seat redistricting plan.  Plaintiffs asked the Commonwealth Court to declare the 23-seat plan invalid and to adopt a plan if the Legislature failed to enact a constitutional plan by a deadline set by the Court.  The Supreme Court of Pennsylvania took plenary jurisdiction of the matter and appointed a Commonwealth Court judge as Master to hold hearings and draw a plan.  This the Master did, selecting a plan submitted by one of the parties that had a higher population deviation than two other plans but also split fewer counties, localities, and precincts than they did, increased the number of African-American-majority districts from one to two, and best preserved communities of interest.

The Supreme Court of Pennsylvania upheld the plan against an equal-population challenge, holding that the "total maximum deviation" of .0111 percent was "fully justified by the policy of preserving the boundaries of municipalities and precincts."  The Court also upheld the plan against a challenge based on § 2 of the Voting Rights Act, since it was the only plan that increased the number of African-American-majority districts.  The Court found that total African American populations of  52.4 percent and 62.242 percent were sufficient to allow African American voters to elect candidates of their choice, since African American participation in Democratic primary elections in Philadelphia was actually higher than that of whites and there was significant white crossover voting in favor of Democratic African American candidates in Philadelphia.

Valenti v. Mitchell790 F. Supp. 534 (E.D. Pa. 1992) (state court's candidate filing deadline
enjoined); 790 F. Sup. 551 (E.D. Pa. 1992) (further injunction denied); 790 F. Supp. 555 (injunction denied), aff'd, 962 F.2d 288 (3rd Cir. 1992)

In its order of March 10, 1992, adopting a congressional redistricting plan, the Supreme Court of Pennsylvania had established a revised schedule for candidates to collect signatures and file petitions to be placed on the ballot for the April 28, 1992 primary election.  Since the congressional plan was the last piece of the redistricting puzzle to be put into place, the revised schedule covered, not only candidates for Congress, but also candidates for the Legislature, for President, and for delegate to the party conventions.  March 10 was made the first day to collect signatures, and March 19 was the deadline for filing the petitions.  Several candidates petitioned the federal district court to enjoin officials of the Commonwealth of Pennsylvania from refusing to accept petitions filed after the deadline, on the ground that the deadline was unreasonably short and thus denied them their First Amendment right of freedom of association and denied them their right under the Fourteenth Amendment to equal protection of the laws.

The federal district court, in a series of orders, held that the Rooker-Feldman doctrine prevented it from reviewing the orders of a state court as to parties who had been given a "realistic opportunity to fully and fairly litigate" their claims in state court, at least to the extent that the order of the state court was an "adjudicative act," i.e., the application of existing law to specific facts and parties.  It denied relief to petitioners who had been parties to the state court action or who had petitioned the state court for relief from its scheduling order.  It granted injunctions and a delay of the filing deadline until April 6 as to candidates who had not been parties to the state court action and who had made diligent efforts to gather signatures by the deadline, based on the Court's conclusion that the schedule adopted by the state court denied the petitioners their First Amendment rights.  The Court held that review of the revised election schedule was not precluded by the Rooker-Feldman doctrine, since the order adopting the schedule was a "nonadjudicative act," i.e., it promulgated a general rule applicable to as-yet-unidentified parties. The Court found no Equal Protection Clause violations.

The Court of Appeals affirmed.  It declined to decide whether the revised election schedule was an adjudicative or a nonadjudicative act and instead based its decision on the fact that the petitioners to whom injunctions were granted had not been parties to the state court proceeding and thus would not barred by the Rooker-Feldman doctrine even if the order adopting the schedule were construed to be an adjudicative act.

Nerch v. Mitchell, No. 3:CV-92-0095, (M.D. Pa. Aug. 13, 1992) (per curiam)

Plaintiffs filed three suits in federal district court that paralleled the suit in state court seeking to have the 1982 congressional plan invalidated and, in the absence of legislative action, a new plan drawn by the court.  The three-judge federal court stayed its own proceedings pending the outcome of the state court proceedings.

After the Supreme Court of Pennsylvania adopted its congressional plan, the Nerch, Barness, and Ryan plaintiffs challenged it on the grounds that its overall range of 57 persons violated the Equal Protection Clause of the Fourteenth Amendment and that the reduction of the African American population in District 2 (Philadelphia) and District 14 (Pittsburgh) violated § 2 of the Voting Rights Act and the Fifteenth Amendment to the U.S. Constitution.  Some of the plaintiffs had participated in the state court action and some had not.  None of the plaintiffs in the state court action were African Americans entitled to vote in either of the districts challenged under § 2.

The Court dismissed the complaints of the parties who had participated in the state court action on the basis of the Rooker-Feldman doctrine.  It found that none of the parties to the state court action had had standing to raise the § 2 claims, since none were African Americans entitled to vote in either of the challenged districts, and that it was therefore proper for the federal court to consider those claims when brought by African American voters in those districts.

The Court dismissed the equal-population challenge.  It found that the adoption by the state court of a policy to avoid splitting political subdivisions was "the functional equivalent of a similar legislative or constitutional declaration," and that each deviation from the ideal population was necessary to avoid splitting a political subdivision or precinct.

The Court likewise dismissed the § 2 challenge.  It found the drop in African American population of District 14 (Pittsburgh) from 23.86 percent to 17.811 percent was accompanied by no evidence of discriminatory intent.  And it found the plaintiffs had failed to prove it would have a discriminatory effect, especially since there was no evidence that the African American population was sufficiently large and geographically compact to constitute a majority of in district.  The drop in African American population of District 2 (Philadelphia) from 81 percent to 62 percent, without more, was not proof of discriminatory effect.

In the absence of proof of intentional discrimination, the Court dismissed the Fifteenth Amendment challenge.

Barness v. Mitchell, No. __________ (E.D. Pa.) consol. with Nerch v. Mitchell

Ryan v. Mitchell, No. 1:CV-92-0166 (M.D. Pa.) consol. with Nerch v. Mitchell


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Bob Zech 
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