Carter, C., Pets. v. Chapman, L. ( 2022 )


Menu:
  •                                   [J-20-2022]
    IN THE SUPREME COURT OF PENNSYLVANIA
    MIDDLE DISTRICT
    BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
    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                :
    OPINION
    OPINION FILED: March 9, 2022
    CHIEF JUSTICE BAER                                      DECIDED: February 23, 2022
    I. Introduction
    Pennsylvania’s current congressional districting plan is irrefutably unconstitutional
    based upon the reapportionment of the House of Representatives following the 2020
    Decennial Census conducted pursuant to Article I, Section 2 of the United States
    Constitution. Due to this Commonwealth’s loss of population relative to the nation as a
    whole, Pennsylvania’s allotted number of congressional representatives declined from
    eighteen to seventeen. As a result, Pennsylvania now requires a new congressional
    districting plan drawn with only seventeen districts for the upcoming May 17, 2022,
    Primary Election.
    Because the General Assembly and the Governor failed to agree upon a
    congressional redistricting plan, this Court was tasked with that “unwelcome obligation.”
    League of Women Voters of Pennsylvania v. Commonwealth, 
    178 A.3d 737
    , 823 (Pa.
    2018) (“LWV II”). This is not uncharted territory, as a similar scenario unfolded following
    the inability of the political branches to enact a plan in the wake of the 1990 Decennial
    Census. In Mellow v. Mitchell, 
    607 A.2d 204
     (Pa. 1992), this Court assumed plenary
    jurisdiction of an action originating in the Commonwealth Court and designated a
    [J-20-2022] - 2
    Commonwealth Court judge as master to conduct hearings, make findings of fact, and
    render conclusions of law before the Court decided on an appropriate redistricting plan.
    Mellow, 607 A.2d at 206. The same procedure was adhered to in this case.
    Our Special Master expended tremendous effort by expeditiously conducting
    hearings, making extensive findings of fact, providing a comprehensive report to this
    Court analyzing the merits of the various congressional redistricting plans submitted
    before it, and ultimately recommending the adoption of the plan created by the
    Pennsylvania Legislature in House Bill 2146 (“H.B. 2146”), which Governor Tom Wolf
    vetoed on January 26, 2022. We acknowledge and thank her for her effort.
    After deliberating and affording due consideration to our Special Master’s findings
    and recommendation and reviewing de novo the relative merit of the submitted
    congressional plans, the Court respectfully declined to adopt the Special Master’s
    analysis and ultimate plan selection. Rather, on February 23, 2022, we entered a per
    curiam order, directing that the Pennsylvania primary and general elections for seats in
    the United States House of Representatives commencing in 2022 shall be conducted in
    accordance with the plan submitted to the Special Master by the Carter Petitioners, who
    we name herein below (“Carter Plan”).1 Our order indicated that an opinion would follow,
    and this opinion is filed in accordance therewith.
    In full cognizance that the redistricting of congressional districts falls squarely
    within the purview of the General Assembly, U.S. CONST., art. I, § 4, cl. 1, we have fulfilled
    our obligation to select a redistricting plan only because the Legislature was unable to do
    so.2 In making our selection, we were guided by our decision in LWV II, where we applied
    1 Justices Todd, Mundy, and Brobson dissented as to the selection of the Carter Plan as
    the congressional redistricting plan.
    2The Elections Clause of the United States Constitution provides that the “Times, Places
    and Manner of holding Elections for Senators and Representatives, shall be prescribed
    [J-20-2022] - 3
    the traditional core districting criteria requiring that congressional districts be compact,
    contiguous, as nearly equal in population as practicable, and which minimize divisions of
    political subdivisions, while taking into consideration the subordinate historical
    considerations, such as communities of interests, the preservation of prior district lines,
    and the protection of incumbents. LWV II, 178 A.3d at 816-17. Finally, we have ensured
    that the congressional districting plan that we adopted does not violate Pennsylvania’s
    Free and Equal Elections Clause by “dilut[ing] the potency of an individual’s ability to
    select the congressional representative of his or her choice,” id. at 816, and complies with
    the Voting Rights Act, 
    52 U.S.C. § 10301.3
    This Court acknowledges that there is no perfect redistricting plan. Each map
    involves trade-offs between the requisite traditional core redistricting criteria, as well as
    the subordinate historical redistricting considerations. The task of balancing these criteria
    and considerations is better suited to the Commonwealth’s political branches, rather than
    the judiciary. Nevertheless, given our unwelcomed circumstance, we have endeavored
    to adopt a plan that, as phrased in League of Women Voters of Pennsylvania v.
    Commonwealth, 
    181 A.3d 1083
    , 1087 (Pa. 2018) (“LWV III”), is “superior or comparable”
    to all of the plans submitted on the designated criteria.
    As evidenced by the views expressed by our esteemed colleagues and the Special
    Master, reasonable minds can disagree in good faith as to which submitted plan best
    in each State by the Legislature thereof; but the Congress may at any time by Law make
    or alter such Regulations, except as to the Places of chusing Senators.” U.S. CONST.,
    art. I, § 4, cl. 1. Congress passed 2 U.S.C. § 2a, pursuant to the Elections Clause, which
    provides that, following the decennial census and reapportionment, the Clerk of the
    House of Representatives shall “send to the executive of each State a certificate of the
    number of Representatives to which such State is entitled” and the state shall be
    redistricted “in the manner provided by the law thereof.”
    3 The Free and Equal Elections Clause provides that “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. I, § 5.
    [J-20-2022] - 4
    balances the requisite criteria and considerations. Nevertheless, for the reasons set forth
    below, we adopt the plan submitted to the Special Master by the Carter Petitioners as the
    2022 Congressional Redistricting Plan.
    II. Procedural History
    This matter commenced on December 17, 2021, when two separate petitions for
    review were filed in the Commonwealth Court’s original jurisdiction. At Commonwealth
    Court docket number 464 M.D. 2021, Carol Ann Carter et al. (collectively referred to as
    “Carter Petitioners”) presented a petition for review.4 The Carter Petitioners identified
    themselves as citizens of the United States who are registered to vote in Pennsylvania.
    They named as respondents to their petition Veronica Degraffenreid, in her capacity as
    then-Acting Secretary of the Commonwealth of Pennsylvania,5 and Jessica Mathis, in her
    capacity as Director for the Pennsylvania Bureau of Election Services and Notaries
    (collectively referred to as “Respondents”). At Commonwealth Court docket number 465
    M.D. 2021, Philip T. Gressman, et al. (collectively referred to as “Gressman Petitioners”)
    filed a petition for review.6   7   The Gressman Petitioners identified themselves as United
    States citizens who are registered to vote in Pennsylvania. They further described
    themselves as “leading professors of mathematics and science[.]” Gressman Petitioners’
    4Additional Carter Petitioners included: Monica Parrilla, Rebecca Poyourow, William
    Tung, Roseanne Milazzo, Burt Siegel, Susan Cassanelli, Lee Cassanelli, Lynn Wachman,
    Michael Guttman, Maya Fonkeu, Brady Hill, Mary Ellen Balchunis, Tom DeWall,
    Stephanie McNulty, and Janet Temin.
    5 Leigh Chapman later became the Acting Secretary of the Commonwealth of
    Pennsylvania and was substituted for Acting Secretary Degraffenreid.
    6 Additional Gressman Petitioners were 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.
    7 We will refer to the Carter Petitioners and the Gressman Petitioners collectively as
    “Petitioners.”
    [J-20-2022] - 5
    Petition for Review, 12/17/2021, at ¶10. The Gressman Petitioners also designated
    Respondents as the opposing parties.
    The petitions for review were substantially similar in their alleged facts, claims
    presented, and relief requested. Factually, Petitioners asserted that this Court in LWV III,
    utilized data from the 2010 Census when we adopted the 2018 congressional district plan
    (“2018 Plan”), which appropriately divided the Commonwealth into eighteen districts.
    Petitioners, however, explained that the 2020 Census reflected a population shift that
    resulted in the Commonwealth losing one of its congressional districts, rendering the 2018
    Plan unconstitutionally malapportioned.
    Stated broadly, Petitioners claimed that the 2018 Plan violated their state and
    federal rights to cast undiluted votes.       In terms of relief, Petitioners asked the
    Commonwealth Court to: (1) deem the 2018 Plan unconstitutional; (2) enjoin
    Respondents and related parties from implementing, enforcing, or giving effect to that
    plan; and (3) adopt a constitutionally acceptable congressional district plan in time for the
    impending 2022 election cycle.
    On December 20, 2021, the Commonwealth Court consolidated the petitions for
    review and, in a separate order, established a process, in compliance with this Court’s
    prior decision in Mellow, supra, by, inter alia, setting deadlines for: (1) the filing of
    applications to intervene; (2) submitting proposed seventeen-district congressional
    reapportionment plans consistent with constitutional principles and the 2020 Census; and
    (3) conducting hearings in the event that the court would be required to choose a new
    map due to political gridlock.
    The following day, December 21, 2021, Petitioners filed in this Court Applications
    for Extraordinary Relief. In those applications, Petitioners asked this Court, inter alia, to
    exercise its extraordinary jurisdiction pursuant to 42 Pa.C.S. § 726 and Pa.R.A.P. 3309
    [J-20-2022] - 6
    to address expeditiously the merits of the claims that they presented in their petitions for
    review.8 This Court eventually denied those applications without prejudice to reapply for
    similar relief, as future developments might dictate.
    While these applications were pending in this Court, the Commonwealth Court held
    a hearing on the ten applications to intervene that had been filed in that court. By order
    dated January 14, 2022, the court set new deadlines regarding the judicial process that
    would address the petitions for review, and it granted intervenor status to the following
    applicants:     (1) the Speaker and Majority Leader of the Pennsylvania House of
    Representatives; (2) the President Pro Tempore and Majority Leader of the Pennsylvania
    Senate; (3) Pennsylvania State Senators Maria Collett, Katie J. Muth, Sharif Street, and
    Anthony H. Williams; (4) Tom Wolf, Governor of the Commonwealth of Pennsylvania; (5)
    Senator Jay Costa and members of the Democratic Caucus of the Senate of
    Pennsylvania; (6) Representative Joanna E. McClinton, Leader of the Democratic Caucus
    of the Pennsylvania House of Representatives; and (7) Congressman Guy
    Reschenthaler, Swatara Township Commissioner Jeffrey Varner, Tom Marino, Ryan
    Costello, and Bud Shuster.
    The Commonwealth Court directed that these intervenors would participate in the
    litigation as parties. The court directed all parties to submit at least one but no more than
    8   Section 726 of the Pennsylvania Judicial Code provides as follows:
    Notwithstanding any other provision of law, the Supreme
    Court may, on its own motion or upon petition of any party, in
    any matter pending before any court or magisterial district
    judge of this Commonwealth involving an issue of immediate
    public importance, assume plenary jurisdiction of such matter
    at any stage thereof and enter a final order or otherwise cause
    right and justice to be done.
    42 Pa.C.S. § 726. Pennsylvania Rule of Appellate Procedure 3309 explains the process
    for applying for relief under 42 Pa.C.S. § 726.
    [J-20-2022] - 7
    two proposed congressional redistricting plans, along with a supporting brief and/or an
    expert report by January 24, 2022. The court also required each party to file a responsive
    brief and/or expert report by January 26, 2022. In addition, the court directed these
    parties to submit a joint stipulation of facts, and the court set January 27th and 28th of 2022
    as the dates of the evidentiary hearings on this matter. Concerning those hearings, the
    court explained that each of the parties would be permitted to present one witness and to
    cross-examine the other parties’ witnesses.
    In the same order, the Commonwealth Court granted amicus status to the following
    applicants: (1) Voters of the Commonwealth of Pennsylvania; (2) Citizen-Voters; (3) Draw
    the Lines-PA; and (4) Khalif Ali et al. The court limited the amicus participants’ litigation
    contribution to the submission of one proposed congressional redistricting plan and a
    supporting brief and/or expert report.
    Subsequently, the parties and amici submitted congressional redistricting maps,
    expert reports, and briefs in support thereof. The Commonwealth Court held hearings on
    January 27th and 28th of 2022, at which numerous experts testified.
    On January 29, 2022, the Carter Petitioners filed in this Court another Application
    for Extraordinary Relief, requesting that this Court immediately assume jurisdiction over
    the redistricting litigation. By order dated February 2, 2022, this Court granted the Carter
    Petitioners’ Application for Extraordinary Relief, obtaining original jurisdiction over the
    matter.
    In conformance with this Court’s decision in Mellow, supra, we: (1) designated as
    a Special Master the Honorable Patricia A. McCullough, the Commonwealth Court judge
    who was presiding over the matter when we assumed plenary jurisdiction; (2) explained
    that the proceedings that already had occurred in the Commonwealth Court shall be
    considered part of the Special Master’s record; (3) directed the Special Master to file in
    [J-20-2022] - 8
    this Court on or before February 7, 2022, a report containing proposed findings of fact
    and conclusions of law supporting her recommendation of a redistricting plan; and (4) set
    a schedule for the parties and amicus participants to file exceptions and briefs in this
    Court.
    On February 7, 2022, the Special Master submitted her comprehensive report.
    While we do not provide a detailed summary of that report, we highlight that the report
    deemed the 2018 Plan constitutionally deficient because, inter alia, it created boundaries
    for eighteen congressional seats based upon the 2010 Census but the 2020 Census
    resulted in Pennsylvania being limited to seventeen congressional seats. The report
    further observed that the General Assembly and Governor were unable to agree upon a
    congressional redistricting plan to replace the 2018 Plan, thus, thrusting upon the
    Pennsylvania judiciary the task of selecting such a plan.
    The Special Master ultimately received thirteen congressional redistricting plans
    to study. Although the Special Master used several metrics to choose the most desirable
    plan, she eliminated multiple plans from consideration due to the following alleged
    shortcomings: (1) the splitting of the City of Pittsburgh into separate districts; (2) the
    yielding of a partisan advantage contrary to Pennsylvania’s political geography; and (3)
    the failure to achieve a maximum population deviation of one person.
    Regarding the remaining plans, the Special Master ultimately chose H.B. 2146 to
    replace the 2018 Plan. As will be discussed in more detail infra, the Special Master
    appears to have given H.B. 2146 preferential treatment because “it is the General
    Assembly’s prerogative, rather its constitutional mandate, to redraw the state’s
    congressional districts under Article I, section 4 of the United States Constitution and its
    related provisions in the Pennsylvania Constitution and state statutes.” Report at 208,
    ¶62; id. at 214, ¶94 (“The Court believes that, in the context of this case, where it must
    [J-20-2022] - 9
    recommend one map of many, as a matter of necessity, the interests of the
    Commonwealth as a sovereign state and political entity in its own right, would best be
    served by factoring in and considering that H.B. 2146 is functionally tantamount to the
    voice and will of the People[.]”).
    While the Special Master provided her recommendation of a congressional district
    plan, we are mindful that this Court obtained original jurisdiction over this litigation when
    we granted the Carter Petitioners’ Application for Extraordinary Relief; accordingly, our
    scope of review of the matter is de novo. LWV II, 178 A.3d at 801 n.62. While Judge
    McCullough’s findings of fact are not binding on this Court, they are afforded due
    consideration, as she presided over the evidentiary hearing. Id.
    In accordance with this Court’s order of February 2, 2022, the following parties and
    amicus participants have filed exceptions in this Court:        (1) Carter Petitioners; (2)
    Gressman Petitioners; (3) Respondents; (4) Congressman Guy Reschenthaler, Swatara
    Township Commissioner Jeffrey Varner, Tom Marino, Ryan Costello, and Bud Shuster;
    (5) Senator Jay Costa and members of the Democratic Caucus of the Senate of
    Pennsylvania; (6) Tom Wolf, Governor of the Commonwealth of Pennsylvania; (7)
    Representative Joanna E. McClinton, Leader of the Democratic Caucus of the
    Pennsylvania House of Representatives; (8) Khalif Ali et al.; (9) Citizen-Voters; and (10)
    Draw the Lines-PA.
    In relevant part, the exceptions challenge the way that the Special Master
    eliminated plans and the criteria that she utilized in choosing H.B. 2146. For example,
    several of the parties and amici are of the view that it was error for the Special Master to
    reject plans because they split the City of Pittsburgh, attempted to accomplish partisan
    fairness, or failed to achieve a maximum population deviation of one person. Some also
    [J-20-2022] - 10
    insist, inter alia, that the Special Master erroneously favored H.B. 2146 simply because it
    was produced by the Legislature.
    The following parties have filed briefs in support of the Special Master’s Report:
    (1) Voters of the Commonwealth of Pennsylvania;9 (2) the Speaker and Majority Leader
    of the Pennsylvania House of Representatives; and (3) the President Pro Tempore and
    Majority Leader of the Pennsylvania Senate. Lastly, the following parties filed amicus
    briefs in the Court: (1) Philadelphia County Board of Elections; (2) Washington County
    Public Officials; (3) Concerned Citizens for Democracy; and (4) Williamsport/Lycoming
    Chamber of Commerce and Greater Susquehanna Valley Chamber of Commerce.
    On February 18, 2022, this Court heard argument on the parties’ exceptions to the
    Special Master’s Report. We would like to extend our gratitude to the parties and their
    counsel who participated in that hearing. Their submissions and advocacy have greatly
    aided this Court in completing the task of selecting an appropriate redistricting plan.
    III. Case Law
    In Mellow, supra, we explained that Pennsylvania lost two congressional districts
    following the 1990 census, and the General Assembly failed to enact a timely remedial
    reapportionment plan. State senators subsequently filed an action in the Commonwealth
    Court seeking: (1) a declaration that the existing congressional apportionment law was
    unconstitutional; (2) an injunction to enjoin the implementation of the congressional
    election until a valid plan could be adopted; and (3) the adoption of a valid plan in the
    event the Legislature was unable to do so. Mellow, 607 A.2d at 205. Upon the senators’
    request, this Court assumed plenary jurisdiction over the matter and designated a
    Commonwealth Court judge as special master to conduct hearings, to make findings of
    fact, and to render conclusions of law. Id. at 206.
    9The Voters of the Commonwealth of Pennsylvania additionally advocated in favor of the
    map they submitted.
    [J-20-2022] - 11
    In Mellow, this Court adopted the master’s factual findings, as well as his
    recommended decision regarding the selection of one of the six congressional
    redistricting plans submitted. Id. Initially, the Court examined the master’s reasons for
    recommending the plan, i.e., the plan had a low maximum population deviation, contained
    minimal splits of municipalities, achieved an enlarged number of congressional districts
    with a majority African American population, and came closest to implementing factors
    relating to communities of interest. Id. at 206. The Court proceeded to resolve numerous
    exceptions to the master’s report filed by the parties, ultimately concluding that the
    master’s conclusions of law were sound. Notably, the Court then addressed what it
    termed as “Additional Criteria,” which included an examination of the political fairness of
    the plan, finding that the plan “results in a politically fair balance in the Pennsylvania
    delegation between Democrats and Republicans,” considering that it divided the two-seat
    congressional loss equally between both parties. Id. at 210.
    Following Mellow, which was decided in 1992, this Court, once again, was faced
    with having to adopt a congressional redistricting map under the circumstances presented
    in our seminal 2018 decision in LWV II. Unlike the instant case, where the General
    Assembly and the Governor failed to enact a redistricting map after a change in
    Pennsylvania’s population resulted in the loss of a congressional district, voters in LWV II
    commenced an action in the Commonwealth Court challenging an existing congressional
    redistricting plan enacted in 2011 (“2011 Plan”). The petitioners alleged, inter alia, that
    the 2011 Plan violated the Free and Equal Elections Clause of Article I, Section 5 of the
    Pennsylvania Constitution by intentionally discriminating against the petitioners and other
    Democratic voters by using redistricting to maximize Republican congressional seats and
    entrench Republican power. LWV II, 178 A.3d at 766. They contended that the 2011
    Plan had the actual discriminatory effect of disadvantaging Democratic voters and
    [J-20-2022] - 12
    burdening severely their representational rights. Petitioners thereafter filed an application
    for extraordinary relief in this Court.
    We granted the application, assumed plenary jurisdiction, and remanded the
    matter to the Commonwealth Court for the creation of an evidentiary record. Upon review
    of the findings of fact and conclusions of law submitted by then-Judge, now-Justice,
    Brobson, this Court, on January 22, 2018, entered a per curiam order: (1) declaring that
    the 2011 Plan clearly, plainly, and palpably violated the Pennsylvania Constitution; (2)
    striking the 2011 Plan as unconstitutional; and (3) enjoining its use at the May 2018
    primary election. League of Women Voters of Pennsylvania, 
    175 A.3d 282
    , 289 (Pa.
    2018) (“LWV I”).     Our per curiam order further afforded the General Assembly the
    opportunity to submit a congressional districting plan that comported with our state
    charter, if approved by the Governor. Absent such submission, the Court declared that it
    would proceed expeditiously to adopt a plan based on the evidentiary record developed
    in the Commonwealth Court.10 Id. at 290. No such plan was ever adopted by the
    Legislature.
    In our subsequent opinion in support of our per curiam order, the Court explained
    that the “Free and Equal Elections Clause was specifically intended to equalize the power
    of voters in our Commonwealth’s election process, and it explicitly confers this
    guarantee[.]” LWV II, 178 A.3d at 812. In determining how to assess a claim alleging
    congressional vote dilution under the Free and Equal Elections Clause of the state
    charter, the Court turned to the neutral criteria that traditionally governed the formation of
    the Commonwealth’s state legislative districts, as set forth in Article 2, Section 16 of the
    Pennsylvania Constitution.      Id. at 815-16. These criteria require an examination of
    whether the congressional districts created under the redistricting plan: (1) are composed
    10This author filed a concurring and dissenting statement, and then-Chief Justice Saylor
    and Justice Mundy filed dissenting statements.
    [J-20-2022] - 13
    of compact territory; (2) are comprised of contiguous territory; (3) are as nearly equal in
    population as practicable; and (4) do not divide any county, city, incorporated town,
    borough, township, or ward, except where necessary to ensure equality of population
    (collectively, “traditional core criteria”). Id. at 816-17. We explained that these criteria
    emphasize greatly the creation of representational districts that “maintain the
    geographical and social cohesion of the communities in which people live and conduct
    the majority of their day-to-day affairs,” and “accord equal weight to the votes of residents
    in each of the various districts.” Id. at 814.
    Finding these traditional core criteria to be “deeply rooted in the organic law of our
    Commonwealth,” and the “foundational requirements which state legislative districts must
    meet under the Pennsylvania Constitution,” the Court adopted them as a measure to
    assess whether a congressional districting plan dilutes the potency of a voter’s ability to
    select his or her preferred congressional representative in violation of the Free and Equal
    Elections Clause. Id. at 816. We explained that these traditional core criteria provide a
    “floor” of protection against the dilution of one’s vote and that the subordination of these
    criteria     to   extraneous    considerations,    such     as   partisan   gerrymandering,    is
    unconstitutional. Id. at 817. Additionally, we observed that congressional districting
    maps must also comply with federal law, specifically, the Voting Rights Act, 
    52 U.S.C. § 10301
    . 
    Id.
     at 817 n.72.
    The Court in LWV II further recognized additional factors that have historically
    played a role in the creation of legislative districts, such as “the preservation of prior
    district lines, the protection of incumbents, and the maintenance of the political balance
    which existed after the prior reapportionment.” 
    Id. at 817
    . Additionally recognized as a
    subordinate historical factor was the preservation of communities of interest because
    “[w]hen an individual is grouped with other members of his or her community in a
    [J-20-2022] - 14
    congressional district for purposes of voting, the commonality of the interests shared with
    the other voters in the community increases the ability of the individual to elect a
    congressional representative for the district who reflects his or her personal preferences.”
    
    Id. at 816
    .
    We clarified that these historical factors are wholly subordinate to the traditional
    core criteria requiring compact and contiguous districts, minimization of the division of
    political subdivisions, and maintenance of population equality among congressional
    districts.    
    Id. at 817
    .    We will refer to these factors as “subordinate historical
    considerations.”
    Relevant here, we recognized that “there exists the possibility that advances in
    map drawing technology and analytical software can potentially allow mapmakers, in the
    future, to engineer congressional districting maps, which, although minimally comporting
    with these [traditional core] criteria, nevertheless operate to unfairly dilute the power of a
    particular group’s votes for a congressional representative.”             
    Id.
     (referencing trial
    testimony discussing the concept of an efficiency gap metric used to determine partisan
    fairness based upon the number of “wasted” votes for the minority political party under a
    particular redistricting plan). Because this Court was resolving LWV II based exclusively
    on the degree to which the traditional core criteria were subordinated to pursue partisan
    advantage, we did not discuss a means by which to differentiate among myriad
    redistricting plans that, on their face, satisfy the traditional core criteria. 
    Id.
    Applying this jurisprudence to the 2011 Plan, the Court in LWV II concluded that it
    clearly violated the traditional core criteria, thereby depriving the petitioners of their state
    constitutional right to free and equal elections. 
    Id. at 818
    . The Court found that the 2011
    Plan revealed “tortuously drawn districts that cause plainly unnecessary political-
    subdivision splits,” and “oddly shaped, sprawling districts which wander seemingly
    [J-20-2022] - 15
    arbitrarily across Pennsylvania, leaving 28 counties, 68 political subdivisions, and
    numerous wards, divided among as many as five congressional districts, in their wakes.”
    
    Id. at 819
    . We emphasized that the congressional districts “often rend municipalities from
    their surrounding metropolitan areas and quizzically divide small municipalities which
    could easily be incorporated into single districts without detriment to the traditional
    redistricting criteria.” 
    Id.
     Accordingly, we concluded that the 2011 Plan did not comply
    with traditional core redistricting criteria and, thus, violated the Free and Equal Elections
    Clause. 
    Id. at 820
    .
    As to the appropriate remedy in LWV II, the Court acknowledged that while the
    primary responsibility for apportioning congressional districts rests with the General
    Assembly, it becomes the judiciary’s task to determine the appropriate redistricting plan
    when the Legislature is unable or chooses not to act. 
    Id. at 821-22
    . Accordingly, based
    upon both state and federal case law, we found sufficient authority for this Court to
    formulate a valid redistricting plan.11 
    Id. at 824
    .
    The Court thereafter prepared a constitutionally sound plan, i.e., the 2018 Plan,
    which was implemented for the May 2018 primary election. LWV III, supra. The 2018
    Plan was based upon the record developed in the Commonwealth Court and relied
    significantly upon the submissions provided by the parties, intervenors, and amici.
    LWV III, 181 A.3d at 1087. In LWV III, this Court found that the 2018 Plan satisfied the
    traditional core criteria as it split only 13 counties, four of which are split into three districts
    and nine of which are split into two districts. Id. The Court opined that the 2018 Plan was
    “superior or comparable” to all plans submitted in compactness, by whichever calculation
    methodology was employed. Id. Finally, the Court observed that the 2018 Plan achieves
    the constitutional guarantee of one person, one vote. Id.
    11This author filed a concurring and dissenting opinion, and then-Chief Justice Saylor
    and Justice Mundy filed dissenting opinions.
    [J-20-2022] - 16
    IV. Special Master Recommendation and Exceptions to Special Master’s Report
    Based upon the processes and guidelines set forth in Mellow and the LWV
    decisions, we turn to our review of the Special Master’s Report and recommendation and
    the numerous exceptions and responses filed by the parties and amici. For the reasons
    set forth below, we respectfully declined to adopt the Special Master’s recommendation
    to select H.B. 2146. Below, we focus upon the following three aspects of the Special
    Master’s analysis: (1) the Special Master’s conclusion that certain plans improperly
    yielded a partisan advantage to the Democratic Party contrary to Pennsylvania’s political
    geography; (2) the Special Master’s finding that certain plans failed to achieve a maximum
    population deviation of one person; and (3) the Special Master’s preferential treatment of
    H.B. 2146. As discussed below, we respectfully disagree with the reasons provided for
    narrowing the plans on these bases. Thus, the exceptions filed by the parties and amici
    to the Special Master’s Report are sustained in part, consistent with the following analysis.
    1. Partisan Advantage
    Several of the exceptions challenge the Special Master’s discrediting of six of the
    thirteen maps for “yield[ing] a partisan advantage to the Democratic Party” based upon
    either their mean-median scores or their efficiency gap scores, which, as discussed infra,
    are generally accepted metrics for evaluating the partisan fairness of a redistricting plan.12
    Report at 197, ¶ 41-42. The Report viewed this asserted partisan advantage as contrary
    to the “natural and undisputed Republican tilt” in the Commonwealth resulting from the
    clustering of Democratic voters in the urban areas. Id. at ¶ 40 The Special Master
    deemed the drawing of district lines to negate this tilt to be “a subspecies of unfair
    12 Specifically, the Report gave “less weight” to the Gressman Plan, the House
    Democratic Caucus, the Carter Plan, the Governor’s Plan, the Senate Democratic
    Caucus 2 Plan, the House Democratic Caucus Plan, and the Draw the Lines Plan
    because these plans provide a “partisan advantage to the Democratic Party.” Report at
    197, ¶ 41-42.
    [J-20-2022] - 17
    gerrymandering.” Id. She explained, “[A]ny map that prioritizes proportional election
    outcomes, for example, by negating the natural geographic disadvantage, to achieve
    proportionality at the expense of traditional redistricting criteria, violates” the Free and
    Equal Elections Clause. Id. at 198, 44. Nevertheless, while discounting these six maps
    due to the absence of a sufficient “Republican tilt,” the Special Master credited H.B. 2146
    for the same attribute, observing that the Republican majority in the General Assembly
    “developed and proposed a plan, H.B. 2146, that favors Democrats, which ultimately
    underscores the partisan fairness of the plan.” Report at 211, ¶ 79; 216. ¶ 97.
    Respectfully, we reject this contradictory logic, which uses partisan advantage to
    discredit some but not all plans. Moreover, the record does not support the conclusion
    that all of the enumerated maps in fact “prioritized proportional election outcomes” at the
    expense of the traditional core criteria, given the various maps’ exceptional performances
    on these criteria. Instead, it appears that the mapmakers were cognizant of this Court’s
    expressed concern that maps could be engineered in the future to meet the requisite
    traditional core criteria while operating to dilute votes. LWV II, 178 A.3d at 817. Indeed,
    we 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.
    Thus, for purposes of our review, we return these six plans to the same status as the
    other submitted plans.13
    2. Population Deviation
    The Special Master further discounted the two plans that failed to reach a
    maximum population deviation of one person, despite finding that all the proposed plans
    13We additionally credit Dr. Jonathan Rodden’s observation that “it is not the case that
    the human geography in Pennsylvania somehow requires that we draw unfair districts.”
    Transcript of Jan. 27, 2022 (“Tr.”) at 192-93.
    [J-20-2022] - 18
    satisfied the constitutional requirement that congressional districts be created “as nearly
    equal in population as practicable.”14 Report, at 138, CL 1; see PA. CONST. art. II, § 16;
    U.S. CONST. art. I, § 2. In other words, while the districts in most of the plans deviated by
    only one person, the two discounted plans deviated from the ideal district population of
    764,865 by plus one person or minus one person.15
    While we acknowledge that the Special Master is justified in flagging these plans
    due to their slightly greater population deviation, we respectfully disagree that a
    population deviation of an additional person serves as an indelible mark against these
    plans. Rather, under the relevant case law discussed infra, a failure to achieve the lowest
    population deviation requires further investigation into the justification for the population
    deviation. See Karcher v. Daggett, 
    462 U.S. 725
    , 740 (1983). The Special Master,
    however, did not engage in any such analysis. Accordingly, we conclude that it was
    improper to discredit these two plans without considering the reasons for the minor
    population deviation. Indeed, as set forth in detail infra, we ultimately conclude that the
    Carter Petitioners sufficiently justified the deviation present in their plan of plus or minus
    one person.
    3. Preferential Treatment of H.B. 2146
    After rejecting the majority of the plans based, inter alia, upon their alleged
    “Democratic partisan advantage” or the two-person population deviation, the Special
    Master was left with four plans to consider, Voters of the Commonwealth of Pennsylvania,
    Reschenthaler 1, Reschenthaler 2, and H.B. 2146. According to the Special Master,
    Republican Legislative Intervenors requested that some degree of deference be given to
    14The two plans discounted under this rationale were the Carter Plan and the House
    Democratic Plan.
    15The ideal district population is determined by dividing the Commonwealth’s population
    as determined by the 2020 Census, which is 13,002,700, by the seventeen allotted
    districts, which results in a population of 764,864.7. Report at 3, n.6.
    [J-20-2022] - 19
    H.B. 2146 because it had gone through the legislative process and was passed by the
    Legislature. The Special Master initially indicated that she would not afford H.B. 2146
    any special deference and instead would assess the plan the same as the other parties
    and amici and their respective maps.
    Nevertheless, the Special Master ultimately recommended the adoption of H.B.
    2146, emphasizing that “the decisions and policy choices expressed by the legislative
    branch are presumptively reasonable and legitimate, absent a showing of an
    unconstitutional defect or deficiency.” Report. at 213, ¶ 90 (citing Upham v. Seamon, 
    456 U.S. 37
    , 41-42 (1982)). The Special Master reasoned that “H.B. 2146 represents [t]he
    policies and preference of the state, and constitutes a profound depiction of what the
    voters in the Commonwealth of Pennsylvania desire, through the representative model of
    our republic and democratic form of government, when compared to the Governor or any
    other of the parties or their amici.” Id. at 214, ¶ 93 (internal quotation marks and citations
    omitted).
    To the extent that the Special Master’s recommendation was premised upon
    bestowing H.B. 2146 preferential treatment simply because it had made it partway
    through the legislative process, we reject her endorsement of this plan on this basis alone.
    Upham, relied upon by the Special Master in affording H.B. 2146 special consideration,
    is readily distinguishable from the present matter. There, the United States Supreme
    Court was tasked with reviewing a district court’s decision to reject a congressional
    reapportionment plan in favor of its own drafted plan. Importantly, the at-issue plan had
    already been duly enacted and was awaiting preclearance from the United States
    Attorney General when a suit was filed in the federal district court, challenging the
    constitutionality of the reapportionment plan and its validity under the Voting Rights Act.
    Thus, Upham, unlike this case, involved a fully-enacted plan that was not vetoed by the
    [J-20-2022] - 20
    Governor.16 Moreover, by relying upon Upham, the Special Master ignored a separate
    line of cases where courts have, in similar circumstances, declined to afford deference to
    vetoed plans.17
    In our view, declining to afford preferential treatment to a plan passed by the
    Legislature but vetoed by the Governor is not only logical, see Cartsen, 543 F. Supp. at
    79 (observing that if it were to accept the argument that a vetoed redistricting plan should
    receive priority during deliberations, “a partisan state legislature could simply pass any
    bill it wanted, wait for a gubernatorial veto, file suit on the issue and have the Court defer
    to their proposal”), but also comports with this Commonwealth’s constitutional precepts.18
    16 A second case cited by the Special Master, Perry v. Perez, 
    565 U.S. 388
     (2012), is
    likewise distinguishable, as that case also involved a challenge to new electoral plans
    that had already been duly enacted. See Perry, 
    565 U.S. at 391-92
     (reviewing the
    implementation of interim maps that were allegedly inconsistent with the State of Texas’
    enacted plans).
    17 See, e.g., Johnson v. Wisconsin Elections Commn., 
    967 N.W.2d 469
    , 490 n.8 (Wis.
    2021) (“The legislature asks us to use the maps it passed during this redistricting cycle
    as a starting point, characterizing them as an expression of ‘the policies and preferences
    of the State[.]’ The legislature's argument fails because the recent legislation did not
    survive the political process.”) (internal citations omitted); Carstens v. Lamm, 
    543 F.Supp. 68
    , 79 (D. Colo. 1982) (affording no deference to vetoed redistricting plan and instead,
    regarding “the plans submitted by both the Legislature and the Governor as ‘proffered
    current policy’ rather than clear expressions of state policy”) (footnote omitted); and
    Hippert v. Ritchie, 
    813 N.W.2d 374
    , 379, n. 6 (Minn. 2012) (acknowledging that in Perry,
    
    supra,
     the United States Supreme Court held that a federal district court, when creating
    an interim congressional redistricting plan, should defer to the duly enacted redistricting
    plan, but finding that in this case, the legislature’s redistricting plan was not entitled to
    such deference because it “was never enacted into law”).
    18 As this Court explained in Scarnati v. Wolf, 
    173 A.3d 1110
    , 1120 (Pa. 2017), by
    “conferring upon the Governor the authority to nullify legislation that has passed both
    legislative houses, [Pa. Const. art. IV,] Section 15 entrusts him with the obligation both to
    examine the provisions of the legislation within the ten days allotted by Section 15 and to
    either approve it or return it, disapproved, for legislative reconsideration.”).
    Consequently, the Governor is “an integral part of the lawmaking power of the state.” 
    Id.
    (internal quotation marks omitted). See also 
    id.
     (observing that “[n]o bill may become law
    without first being submitted to the Governor for approval or disapproval”).
    [J-20-2022] - 21
    Finally, by disregarding the Governor’s veto and affording H.B. 2146 preference
    because it purportedly represented “the will of the people,” the Special Master improperly
    elevated the General Assembly’s role in passing legislation over that of the Executive
    Branch, which is an inappropriate departure from basic constitutional principles of checks
    and balances, see, e.g., Carstens, 
    543 F. Supp. at 79
     (finding that the legislature’s vetoed
    plan, while certainly entitled to careful consideration, could not “represent current state
    policy any more than the Governor’s proposal” because “[b]oth the Governor and the
    General Assembly are integral and indispensable parts of the legislative process”), and
    offensive to the separation-of-powers doctrine.
    V. Standard for Choosing New Redistricting Plan
    Having rejected the Special Master’s process of winnowing the maps, we review
    these maps de novo under this Court’s precedent in Mellow and LWV II. In selecting one
    of the various congressional districting plans submitted by the parties and amici, we find
    ourselves bound by the same commands that the Legislature must satisfy when
    performing such task. First and foremost, we begin, with the traditional core criteria of
    ensuring that the districts are compact, contiguous, are as nearly equal in population as
    practicable, and do not divide any county, city, incorporated town, borough, township, or
    ward, except where necessary.         LWV II, at 178 A.3d at 816- 17.           As noted, these
    traditional core criteria provide a “‘floor’ of protection for an individual against the dilution
    of his or her vote in the creation of [congressional] districts.” Id. at 817.
    Second, we may also examine the subordinate historical considerations, including,
    inter alia, communities of interests, the preservation of prior district lines, and the
    protection of incumbents. Id. As noted, we must keep in mind that these factors are
    wholly subordinate to the traditional core criteria. Id.
    [J-20-2022] - 22
    Third, we ensure that the congressional districting plan does not violate
    Pennsylvania’s Free and Equal Elections Clause by “diluting the potency of an individual’s
    ability to select the congressional representative of his or her choice.” LWV II, 178 A.3d
    at 816.     While the traditional core criteria protect against the creation of obviously
    gerrymandered districts, such as those present in the 2011 Plan, they do not necessarily
    prevent all forms of vote dilution. As noted supra, this Court observed in LWV II that
    “advances in map drawing technology and analytical software can potentially allow
    mapmakers, in the future, to engineer congressional districting maps, which, although
    minimally comporting with these [traditional core] criteria, nevertheless operate to unfairly
    dilute the power of a particular group’s vote for a congressional representative.” Id.
    Partisan fairness metrics provide tools for objective evaluation of proposed congressional
    districting plans to determine their political fairness and avoid vote dilution based on
    political affiliation.
    Fourth, and finally, in adopting a congressional redistricting plan, we guarantee
    that the dictates of the Voting Rights Act, 
    52 U.S.C. § 10301
    , have been respected.
    As mentioned throughout, many of the plans submitted by the parties and the amici
    curiae satisfy these rigorous standards set forth in LWV II. Moreover, as demonstrated
    in our respected colleagues’ responsive opinions, reasonable minds may disagree as to
    which of these plans best balances the designated criteria and considerations.
    Nevertheless, having been thrust into the position of choosing a redistricting plan due to
    the political stalemate between the Legislature and the Governor, we applied the
    aforementioned designated criteria and considerations and selected the Carter Plan as
    the 2022 Congressional Redistricting Plan. Our reasons for doing so follow.
    VI. Adoption of Carter Plan
    [J-20-2022] - 23
    We initially observe that the parties and their experts generally agree on the
    metrics to be used in judging a plan’s performance on the traditional core criteria, the
    subordinate historical considerations, and the evaluations of partisan fairness. However,
    through no fault of the experts, the results of these metrics vary based on differences in
    their application of the metrics and divergences in the data sets. For example, the
    seemingly simple task of counting how many counties are split by a plan varies between
    experts based on their assessment of a naturally noncontiguous piece of Chester
    County.19 Additionally, some of the standards used to evaluate partisan fairness vary
    based upon how many past elections are included in the relevant dataset. Given these
    variations, we rely upon the analyses performed by Dr. Daryl DeFord, which evaluate all
    of the submitted plans using the same methods and data sets.20 See, inter alia, Exh. 1
    of Post-Trial Submission of Gressman Petitioners. We appreciate Dr. DeFord’s efforts in
    this regard as it allows the Court to engage in an apples-to-apples comparison of the
    plans on each metric.
    A. Description of the Carter Plan
    The Carter Plan was created by Dr. Jonathan Rodden, 21 who submitted an expert
    report and testified as to his decision-making process at the hearing in this case. Dr.
    Rodden explained that he used the 2018 Plan “as a guide” with the goal of “preserving
    19 As described by one of the experts, a small portion of Chester County is rendered
    “technically non-contiguous” if the boundary between Chester County and Delaware
    County is used as a district boundary. In such case, that six-person portion of Chester
    County is “marooned in Delaware County due to a bend in the Brandywine Creek at the
    intersection with the [s]outhern state boundary.” Expert Report of Jonathan Rodden
    (“Rodden Report”) at 21. While some experts included this in the count of county splits,
    others did not.
    20   Dr. DeFord is an assistant professor of data analytics at Washington State University.
    21Dr. Rodden is a professor of political science at Stanford University and director of the
    Stanford Spatial Social Science Lab.
    [J-20-2022] - 24
    the cores and boundaries of districts where feasible given equal population requirements
    and meeting or surpassing [the 2018 Plan’s] adherence to traditional districting criteria[.]”
    Rodden Report at 1.
    He opined that the 2018 Plan was a “reasonable starting point” because it
    “performed very well according to traditional redistricting criteria,” observing that it “was a
    compact plan” that involved “relatively few county splits and other jurisdictional splits.”
    Rodden Report at 6; Tr. at 88. He additionally recognized that the 2018 Plan “was broadly
    recognized” as a fair plan by those who study redistricting, following its use in the 2018
    and 2020 elections. Id. at 89. He observed that it “produce[d] relatively competitive
    elections” with “outcomes that are roughly in line with overall partisan preferences of
    Pennsylvania voters.”22 Rodden Report at 6.
    Dr. Rodden provided a detailed district-by-district assessment of the adjustments
    needed to achieve population equality, given the different rates of population growth.
    Rodden Report at 8-9, 12-20.        He additionally explained the rationale behind each
    decision to alter district boundaries, with due consideration paid to the give and take
    between traditional core criteria which require maximizing compactness and minimizing
    county splits. Id.
    In adjusting the 2018 Plan to the population changes of the 2020 Census, Dr.
    Rodden observed that Pennsylvania’s urban areas, especially in Southeastern
    Pennsylvania, “have experienced population growth on par with the United States as a
    whole” in the years since the 2010 Census. Rodden Report at 1. As a result, only minimal
    adjustments in the 2018 Plan boundaries were needed for the urban districts in
    Southeastern and Southwestern Pennsylvania to achieve the population targets under
    22In those elections, the average Democratic vote share was 52.7 percent, and the
    Pennsylvania congressional delegation was split evenly between Republicans and
    Democrats, with several competitive districts. Rodden Report at 4.
    [J-20-2022] - 25
    the 2020 Census. However, the “precipitous decline in population” in the rural areas of
    Central Pennsylvania required more substantial changes in those districts to achieve the
    necessary equal population, resulting in the absorption of former-District 12 of the 2018
    Plan into the surrounding districts, Districts 9, 15, and 13. Id. at 1, 20.
    Dr. Rodden expressly stated that he “did not consider racial data [when] drawing
    districts or making adjustments for population changes in the map.” Rodden Report at
    23. Likewise, he explained that he “did not consider partisan performance” when drawing
    the map. Id. However, after completing the map, he “was asked to evaluate the districts’
    partisan performance,” which he deemed to be “consistent with and responsive to
    Pennsylvania voters’ partisan preferences.” Id. at 1. As incorporated into the discussion
    below, Dr. Rodden also addressed the plan’s performance on the requisite traditional core
    criteria as well as the subordinate historical considerations.
    B. Special Master’s Rejection of the Carter Plan
    The Special Master rejected the Carter Plan, reasoning that in using the 2018
    Plan, the Carter Plan erroneously elevated the subordinate historical considerations of
    preservation of prior district lines above the traditional core criteria, in violation of this
    Court’s decision in LWV II, which held that the historical considerations are “wholly
    subordinate” to the traditional core criteria. Report at 183, CL 2 (quoting LWV II, 178 A.3d
    at 817); 187, FF10. Specifically, she faulted the Carter Plan for “opting to draw less
    compact districts instead of disrupting” the district boundaries of the 2018 Plan. Id. at
    186, FF9. Additionally, while acknowledging that the so-called “least-change” approach
    may be appropriate when applied to a legislatively enacted plan, the Special Master
    concluded that “choosing a plan based upon its similarity to a previously court-drawn
    redistricting plan is not constitutionally sound.” Id. at CL 5. She theorized that use of the
    least-change approach for a court map could allow a court to adopt continuously “features
    [J-20-2022] - 26
    of its prior plan, effectively rendering impossible any future challenge to the plan.” Id. at
    188, FF 11.
    Respectfully, this Court does not view the Carter Plan’s utilization of the 2018 Plan
    as a starting point to be either a prerequisite or a disqualifying attribute. Instead, we deem
    it to be one of several reasonable starting points. Such method is particularly useful here,
    considering that the 2018 Plan was adopted only four years ago and in strict conformity
    with the traditional core criteria explicated in LWV II. LWV III, 181 A.3d at 1086-87. Thus,
    the 2018 Plan provided a reasonable starting point of contiguous and compact districts
    that minimized divisions of political subdivisions, even if it no longer provided districts of
    equal population.
    Our decision to adopt the Carter Plan, however, is not based upon its starting point
    but rather its end point. Stated another way, we do not select the Carter Plan because it
    utilized the least change approach but because the least change approach worked in this
    case to produce a map that satisfies the requisite traditional core criteria while balancing
    the subordinate historical considerations and resulted in a plan that is reflective of and
    responsive to the partisan preferences of the Commonwealth’s voters, as set forth below.
    C. Traditional Core Criteria
    1. Contiguity
    Starting with the simplest and least contentious of the traditional core criteria, the
    seventeen districts in the Carter Plan, like every map submitted, are all contiguous.
    2. Compactness
    Turning to compactness, we find that all of the submitted plans are on a higher
    plane of compactness than the unconstitutional 2011 Plan with its “oddly shaped,
    sprawling districts which wander seemingly arbitrarily across Pennsylvania.” LWV II, 178
    A.3d at 819. Moreover, utilizing the various accepted metrics, the submitted maps are all
    [J-20-2022] - 27
    within a relatively narrow range comparable to the 2018 Plan, which this Court deemed
    constitutionally sufficient.23
    While well within the range of the submitted plans, we acknowledge that the Carter
    Plan is slightly less compact than some of the other maps. We discount, however, the
    Special Master’s suggestion that any reduction in compactness resulted from adherence
    to the 2018 Plan lines. Instead, minor reductions resulted from a trade-off acknowledged
    by numerous experts between two of the traditional core criteria: compactness and
    minimization of political subdivision splits. It is easily comprehended that adherence to
    county and city lines will decrease compactness because many of the boundaries follow
    geographic features such as rivers, which meander across our Commonwealth.                A
    mapmaker must, therefore, balance more compact districts with respect for the integrity
    of political subdivisions.
    In our view, Dr. Rodden’s Report sufficiently justifies the slightly less-compact
    aspect of the Carter Plan by explaining various decision points where he sacrificed
    compactness in favor of unifying counties or other political subdivisions. Rodden Report
    at 8-9, 12-20, 22-23, Tr. at 105-06. Additionally, we recognize that the Carter Plan is less
    compact in part due to the decision to keep Pittsburgh within a single district. Rather than
    utilizing a relatively smooth dividing line, the Carter Plan traces Pittsburgh’s jagged city
    23 Several metrics are used to evaluate compactness, each testing a slightly different
    aspect of that concept. We need not delve into the details of the computations of these
    accepted metrics, which are not contested, but rather look broadly to the results across
    the metrics. Specifically, using the Mean Polsby-Popper metric in which larger scores
    indicate greater compactness, the submitted maps range from 0.27 to 0.38, with the
    Carter Plan scoring 0.31 and the 2018 Plan scoring 0.32. On the Mean Reock score,
    under which higher scores again indicate greater compactness, the submitted maps
    range from 0.38 to 0.44, with the Carter Plan at 0.41 and the 2018 Plan at 0.43. The
    Carter Plan again is within the midrange of the Mean Convex Hull metric where larger
    scores indicate more compact districts, with the maps ranging from 0.75 to 0.81, the
    Carter Plan at 0.78 and the 2018 Plan at 0.79. Finally, addressing the Cut Edges metric,
    for which a lower score demonstrates more compact districts, the Carter Plan at 5896
    falls within the range of maps from 5,061 to 6821, where the 2018 Plan is at 5,789.
    [J-20-2022] - 28
    line. Given the thorough explanation for the choices made and the realities of existing
    but irregular county and municipality boundaries, we deem the Carter Plan to be
    sufficiently compact in comparison to the other submitted plans.
    3. Equal Population
    The Carter Plan included four districts with a population of 764,865, four districts
    with one additional person at 764,866, and nine districts with one less person at 764,864.
    Rodden Report at 21. As stated supra, the Special Master found that each proposed plan
    satisfied the constitutional requirement that congressional districts be as nearly equal in
    population as practicable. Report at 138, CL 1. Nevertheless, she gave less weight to
    the Carter Plan because districts in the plan had a maximum deviation of two persons,
    whereas some plans achieved a maximum deviation of only one person. As noted above,
    we respectfully rejected the Special Master’s discounting based upon its maximum
    population deviation, without considering whether the slight difference between the one-
    and two-person population deviation was justified.24
    Although a challenge under the equal population requirement is not presently
    before this Court, the case law is nonetheless instructive in reviewing whether the Carter
    Plan sufficiently met the traditional core criterion of equal population. While the criterion
    of equal population is exacting and enforced strictly, the United States Supreme Court
    has conceded that “precise mathematical equality … may be impossible to achieve in an
    imperfect world,” and consequently, the United States Constitution’s equal population
    standard requires only that districts be apportioned to achieve population equality “as
    nearly as is practicable.” Karcher v. Daggett, 
    462 U.S. 725
    , 730 (1983).
    24While the Special Master merely gave the Carter Plan less weight, some parties and
    amici argued that the Carter Plan failed to meet the equal population requirement
    because nine plans achieved a deviation of one person.
    [J-20-2022] - 29
    Under the relevant caselaw, a challenge to population equality requires the parties
    challenging the proposed plan to show that the population deviation “could have been
    reduced or eliminated altogether by a good-faith effort to draw districts of equal
    population.” 
    Id. at 730
    . This burden may be satisfied by the presentation of a plan with
    a lower population deviation, particularly where the party being challenged presents an
    alternative plan that achieves a lower population deviation. See Vieth v. Pennsylvania,
    
    195 F. Supp. 2d 672
    , 675–76 (M.D. Pa. 2002) (where defendants themselves presented
    a plan with a lower population deviation).
    We will assume arguendo that this step is met as the Carter Petitioners appended
    to their exceptions filed in this Court a slightly revised plan containing only a one-person
    deviation. The reduced deviation was achieved at the expense of an additional split in a
    Vote Tabulation District.25 Notably, however, the ability to achieve a lower maximum
    population deviation, by itself, does not establish the unconstitutionality of a plan with a
    larger deviation. Karcher, 
    462 U.S. at 740
    . Rather, the burden merely shifts to the
    proponent of the plan to prove “with some specificity” that the deviations in its proposed
    plan were necessary to achieve a legitimate state objective. 
    Id. at 740-41
    .
    The specificity required for demonstrating that the deviation was necessary is
    flexible and requires a case-by-case consideration of the following factors: the size of the
    deviation, the importance of the legitimate state interest necessitating the deviation, the
    consistency with which the plan reflects those interests, and whether alternatives might
    substantially vindicate those interests yet achieve a smaller deviation.           
    Id. at 741
    .
    25 Dr. Rodden explained that a “vote tabulation district” is the term for the level at which
    ballots differ between local races. He attempted to minimize these splits because district
    divisions at this level create difficulties and potential errors for local election officials as
    they determine which ballot a voter should complete. Tr. at 95-96. He observed that
    these errors relating to vote tabulation districts can result in voters being provided
    incorrect ballots, which can have significant consequences in close elections. Tr. at 97.
    [J-20-2022] - 30
    Accordingly, “the greater the deviation, the more compelling the government's justification
    must be.” Vieth, 
    195 F. Supp. 2d at 677
    .
    While “there are no de minimis population variations,” Karcher, 
    462 U.S. at 734
    ,
    the size of the deviation between a one-person and two-person deviation is as small a
    population deviation as is possible and thus results in a low burden of justification. The
    Karcher court provided a non-exhaustive list of legislative policies that might justify a slight
    population variance, including respecting municipal boundaries and preserving prior
    districts. 
    Id. at 740
    . Since Karcher, federal courts have also recognized a legitimate state
    interest in avoiding splitting of election precincts and not unduly departing from “the useful
    familiarity of existing districts.” Mellow, 607 A.2d at 206 (Pa. 1992) (collecting cases).
    In the brief filed in support of their exceptions in this Court, the Carter Petitioners
    explained that their attempts to reach zero deviation required not only the manipulation
    of several census blocks, but also the additional split of a Vote Tabulation District at the
    intersection of Districts 3 and 5 in South Philadelphia, which the original plan was able to
    keep intact. Carter Exceptions Brief at Exhibit A, 2–3. We addressed a similar justification
    in Mellow, where the proposed plan fell below others regarding population deviation
    precisely because the cost of maximum mathematical equality “require[d] manipulation of
    the smallest census unit, the census block.” Mellow, 607 A.2d at 218. In Mellow, we
    found that the election administration problems arising from requiring voters in a single
    precinct to look to two different sets of congressional candidates “is not a minor one.” Id.
    In doing so, we accepted the justification and ultimately adopted a proposed plan with a
    larger, but still slight, population deviation than other plans submitted.26 Id.
    26In Mellow, the Court adopted a plan with a 63-person maximum population deviation,
    despite the submission of a plan with only a one-person deviation. In the adopted plan,
    the smallest district included 565,754 persons, while the largest district had 565,817
    persons. Mellow, 607 A.2d at 226 (Appendix A to Opinion of President Judge Craig).
    [J-20-2022] - 31
    In the present case, the Carter Petitioners have satisfied their burden by stating,
    with specificity, that the two-person deviation was required to prevent the additional split
    of a Vote Tabulation District. This is a recognized legitimate state interest, and there has
    been no evidence nor allegations of bad faith on the part of the Carter Petitioners. The
    Carter Plan represents a good-faith effort to draw districts of equal population, and the
    two-person deviation was the byproduct of legitimate efforts to limit the number of splits.
    Accordingly, the Carter Plan satisfies the equal population requirement and is
    comparable, given the very minimal deviation, to the other submitted plans.
    4. Splits of Political Subdivisions
    While the traditional core criterion of contiguity is very straight forward, it is less
    clear how to assess whether a plan has satisfied the requirement that it “not divide any
    county, city, incorporated town, borough, township, or ward, except where necessary to
    ensure equality of population.” LWV III, 181 A.3d at 1085. In practical terms, there are
    only a few political subdivisions which are necessary to split to comply with the maximum
    population of a district.
    Following the 2022 Census, the ideal population for Pennsylvania’s congressional
    districts is 764,865.       Thus, only Philadelphia, Allegheny, and Montgomery Counties
    exceed this population, and the only city with an excess population is Philadelphia.
    Beyond these required divisions, mapmakers must divide the Commonwealth by grouping
    together whole political subdivisions with parts of others to achieve the necessary equal
    population. Inevitably, there are tradeoffs inherent in this process. A plan that prioritizes
    minimizing the number of county splits may well incur more municipality and ward splits
    to achieve the critical equal population of the district as a whole. To complicate matters
    further, some boroughs span a county line, requiring a mapmaker to choose potentially
    between splitting the county or the borough. Additionally, reasonable minds can differ as
    [J-20-2022] - 32
    to whether it is preferable to split fewer total political subdivisions but to split some in
    multiple pieces. For example, Philadelphia’s population requires it to be split in at least
    three pieces, but some proposed plans split it into four pieces.
    Neither our constitution nor our caselaw provides guidance as to whether the unity
    of one type of political subdivision should be prioritized over that of another. Instead, we
    observe that these determinations are best left to the political branches, and thus, we do
    not rank the order of the importance of the splits. Instead, for the purpose of choosing a
    plan, we look wholistically across the plans for a minimization of the splits and for a
    justification for the splits to ensure that the decisions were based on valid redistricting
    criteria and not for vote dilution purposes.
    Turning back to the submitted plans, we emphasize that all of the plans are a far
    cry from the unconstitutional 2011 Plan which splintered the Commonwealth, including
    the division of twenty-eight counties. LWV II, 178 A.3d at 819. In contrast, the Carter
    Plan splits half as many counties.       Indeed, Dr. Rodden testified that he prioritized
    maintaining the counties as whole entities and, when counties are split, avoiding splitting
    them multiple times. While we do not opine as to which division is preferable, we merely
    observe that the Carter Plan is one of the best in terms of keeping counties whole and
    falls within all other ranges of the plans submitted.27 Accordingly, we conclude that the
    Carter Plan is superior or comparable to all the other submitted plans on this criterion.
    27 As discussed supra, experts disagree as to how to count the separation of a non-
    contiguous portion of Chester County from the rest of the county when a plan uses the
    border between Chester and Delaware Counties as a district boundary. Dr. DeFord’s
    comparison of the plans’ splits indicates that this split was included in the Carter Plan’s
    total of 14 divided counties, such that an argument could be made that the Carter Plan
    should actually be attributed with 13 splits, which would tie for the least split counties. In
    comparison, the other maps range from 13-17 counties, while the 2018 Plan divided 14.
    In terms of city splits, the Carter Plan splits Philadelphia into three pieces as is
    required by its population but does not fragment it into 4 pieces as do some maps. While
    [J-20-2022] - 33
    D. Subordinate Historical Considerations
    Having determined that the Carter Plan meets or exceeds the other submitted
    plans in terms of its adherence to the traditional core criteria, we next consider the
    subordinate historical considerations which this Court and other courts have recognized
    as relevant considerations in designing a congressional districting plan.
    1. Communities of Interest
    As discussed above, respect for communities of interest increases an individual’s
    ability to elect a congressional representative who reflects his or her personal preferences
    based upon “the commonality of the interests shared with the other voters in the
    community.” Id. at 816. We observe that the Special Master found that Dr. Rodden “did
    not explicitly examine or appear to have considered the specific considerations that need
    to be taken into account when establishing that splits maintain the surrounding
    communities of interest.” Report at 156, FF12.
    Respectfully, we do not read the record to support that finding, given that Dr.
    Rodden elucidated several choices that he faced relating to communities of interest. For
    example, in forming District 7, he drew the boundaries to “unify Carbon County with the
    rest of the Lehigh Valley” and to keep together the Allentown-Bethlehem-Easton area,
    which the United States Census Department recognizes as “a metropolitan statistical
    area.” Rodden Report at 14, 17. Similarly, the Carter Plan centers District 10 around
    Harrisburg, keeping the greater Capital Region intact rather than dividing the area into
    the Carter Plan retains Pittsburgh in a single district, it nevertheless splits Williamsport,
    which is in the range of the other maps which either split one or two cities. While the
    submitted maps split between 19 and 25 municipalities, the Carter Plan divides 23, and
    the 2018 Plan separates 29. In terms of wards, the Carter Plan divides 21, which is in
    the midrange of the submitted maps that divide from 14 to 41; the 2018 Plan split 29. In
    total, the Carter Plan divides 58 political subdivisions, whereas all the maps range from
    49 to 79 total splits. The 2018 Plan had 72 total splits.
    [J-20-2022] - 34
    multiple district as do some of the plans. The Plan addresses complaints raised regarding
    the 2018 Plan, which separated State College from its surrounding area, by placing the
    entirety of Centre County in District 15. In addition, unlike several of the plans, the Carter
    Plan does not split the City of Pittsburgh, which many, including the Special Master, have
    argued results in the division of a community of interest.28
    Given the choices made to protect communities of interest, we conclude that the
    Carter Plan sufficiently considered this historical redistricting consideration.
    2. Preservation of Prior Districts
    As has been repeatedly observed by this Court and the United States Supreme
    Court, the preservation of prior districts is a legitimate redistricting objective, but one that
    is subordinate to the traditional redistricting criteria. See Karcher v. Daggett, 
    462 U.S. 725
    , 740 (1983). As discussed supra, the Carter Plan used the 2018 Plan as a starting
    point with the intent of preserving district cores and boundaries as much as possible,
    given the population changes. The Carter Petitioners argue that the preservation of
    districts is beneficial in part because it “create[s] continuity for the overwhelming majority
    of Pennsylvania residents.” Carter Plan Brief at 6. The data presented at the hearing
    demonstrates that the Carter Plan “laps the field” by ensuring that 86.6 percent of the
    population falls in the same district as under the 2018 Plan, while the next highest plan
    included only 82.4 percent. Tr. at 407-408 (Dr. Moon Duchin); Rodden Response Report
    at 22.
    3. Incumbents
    28 While we do not view the splitting of Pittsburgh as a disqualifying feature as did the
    Special Master, we recognize that it is relevant to a plan’s consideration of communities
    of interest. Moreover, given the history of the recent congressional districting plans, we
    deem it preferable to retain it within a single district.
    [J-20-2022] - 35
    A plan’s treatment of incumbents is a relevant consideration because it can reveal
    partisan bias where a map protects one party’s incumbents but pairs the other party’s
    incumbents against each other, absent other justification.
    In this case, the Special Master observed that the Carter Plan pairs two incumbent
    Republican representatives, opining that it does so “without any explicit or apparent
    justification.” Report at 204. Our review of the record does not support this conclusion.
    To the contrary, Dr. Rodden stated that he intentionally considered incumbent addresses
    when drawing the Plan to avoid “inadvertently double-bunking sitting congressional
    representatives in the same district.” Rodden Report at 23. Moreover, he explained that
    the two incumbents paired in District 15 of the Carter Plan resulted from the absorption
    of the former-District 12 into District 15 and surrounding districts, which was necessitated
    by the significant population loss in Central Pennsylvania since the 2010 Census. We
    find this pairing to be justified by the loss of population in this area and not suggestive of
    partisan bias, and we further conclude that the Carter Plan pays due consideration to
    incumbents.
    E. Partisan Fairness
    We reiterate this Court’s concern that advances in mapmaking have the potential
    to create a plan that will “dilute the power of a particular group’s vote” despite meeting the
    traditional core criteria. LWV II, 178 A.3d at 817. Accordingly, we deem it appropriate to
    evaluate proposed plans through the use of partisan fairness metrics to ensure that all
    voters have “an equal opportunity to translate their votes into representation.” Id. at 814.
    In recent years, numerous metrics have been developed to allow for objective
    evaluation of proposed districting plans to determine their partisan fairness. For example,
    some of the metrics attempt to ascertain a map’s responsiveness to voters, evaluating
    whether a party with a majority of votes is likely to win a majority of seats, or whether it is
    [J-20-2022] - 36
    likely to produce “anti-majoritarian” results, without focus on exact proportionality of
    representation. Others attempt to measure whether and to what extent a map favors one
    party. In utilizing these tools, we do not prioritize one metric over another, but rather look
    wholistically to a plan’s performance across the assessments.
    Turning to the Carter Plan specifically, we initially observe that Dr. Rodden
    expressly stated that he “did not consider partisan performance” when drawing the map
    but instead considered the relevant metrics after it was completed. Rodden Report at 23.
    In so doing, he provided detailed assessments of several of the districts. In sum, he views
    the Carter Plan as producing “8 districts where Democrats are expected to win, one of
    which (District 8) is potentially competitive; 8 districts where Republicans are quite likely
    to win, two of which are at least potentially competitive (1 and 10); and one district (District
    7) that is a toss-up with a very slight Democratic lean.” Id. at 25.29 Moreover, Dr. Rodden
    viewed the Carter Plan as “similar to that of the [2018 Plan], reflective of Pennsylvania’s
    statewide partisan preferences, and consistent with changes in population as they relate
    to partisanship.” Id. He additionally opined that based on the competitiveness of several
    of the districts, the Carter Plan would be responsive to changes in Pennsylvania voters’
    partisan preferences. Id.
    Dr. Rodden’s assessment is supported by the plan’s performance on the various
    metrics. In contrast to some of the submitted plans, the Carter Plan consistently scores
    better than average on the measures and equals or surpasses the standards set by the
    29 Some of the other parties and amici have oversimplified Dr. Rodden’s assessment as
    describing a split of ten Democratic seats and seven Republican seats; we reject that
    view based on Dr. Rodden’s description of the plan, which is further supported by the
    Carter Plan’s performance on the metric’s discussed below.
    [J-20-2022] - 37
    2018 Plan.30 Thus, we conclude the Carter Plan is superior or comparable to the other
    maps in regard to partisan fairness.
    F. Voting Rights Act
    While formal Voting Rights Act assessments were not performed in relation to the
    submitted plans, the Carter Plan, like all the submitted plans but one, retains the two
    majority-minority districts present in the 2018 Plan according to Dr. DeFord’s
    assessment.31 Indeed, unlike some of the plans, the Carter Plan’s majority-minority
    districts hew closely to the same Philadelphia area districts included in the 2018 Plan,
    which to our knowledge has never been challenged as violative of the VRA. As explained
    by Dr. Rodden, the boundaries of the Philadelphia area district remained largely
    unchanged because the population of this area grew at a similar rate to the United States
    as a whole. Rodden Report at 12. Additionally, Dr. Rodden expressly indicated that he
    “did not consider racial data [when] drawing districts or making adjustments for population
    changes in the map.” Rodden Report at 23. Moreover, no party or amici have raised any
    concerns regarding the Carter Plan’s compliance with the VRA.
    30 We set forth a few of the partisan fairness metrics. The Carter Plan was one of the
    best performers on the Majority Responsiveness Metric, where a responsive map is
    confirmed by a low number of anti-majoritarian elections, which are balanced between
    the political parties. The Carter Map had only 3 anti-majoritarian elections, with one
    favoring Democrats and two favoring Republicans. In contrast, H.B. 2146 had one of the
    highest anti-majoritarian results, with all five favoring Republicans. The Carter Plan had
    the least biased score (-0.4%) on the average efficiency gap metric, on which negative
    numbers favor Republicans and positive numbers favor Democrats. The submitted plans
    ranged from -7.8% to +3.3%, including H.B. 2146 which had one of the highest efficiency
    gaps favoring Republicans at 6.3%. The 2018 Plan had an average efficiency gap of -
    2.6%. In regard to the mean-median metric, upon which numbers closer to zero
    demonstrate a more balanced plan, the Carter Plan scored -1.6%, which demonstrated a
    slight Republican tilt, where other plans ranged from -2.9% to -0.3%, with H.B. 2146
    having the most significant skew in favor or Republicans at -2.9%. The 2018 Plan had
    an average mean-median score of -1.9%.
    31All other plans submitted also included two majority-minority districts, other than the
    Gressman Plan which was drawn in part to add an additional majority-minority district.
    [J-20-2022] - 38
    VII. Conclusion
    We reiterate that this Court has been forced into an unusual but not unprecedented
    role of selecting a congressional redistricting plan for the impending May 17, 2022,
    Primary Election. There is no perfect plan, nor can there be, as many of the criteria work
    at cross-purposes to each other and require mapmakers to balance opposing criteria.
    Our task is to discern which plan, in our view, best abides by the traditional core criteria
    with attention paid to the subordinate historical considerations and awareness of partisan
    fairness. As noted, several of the maps submitted would be reasonable choices to be
    made by a legislature. After careful consideration and for the reasons set forth above,
    we adopt the Carter Plan for the Pennsylvania primary and general elections for seats in
    the United States House of Representatives commencing in 2022. We grant, in part, the
    exceptions to the extent they are consistent with this opinion and dismiss as moot the
    exceptions in all other respects.
    Justices Donohue, Dougherty, and Wecht join the opinion.
    Justices Donohue, Dougherty, and Wecht file concurring opinions.
    Justices Todd, Mundy, and Brobson file dissenting opinions.
    [J-20-2022] - 39
    

Document Info

Docket Number: 7 MM 2022

Judges: Chief Justice Max Baer

Filed Date: 3/9/2022

Precedential Status: Precedential

Modified Date: 3/9/2022