[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

EDBRIL,  DARIEL 

AMANDA E. HOLT, ELAINE TOMLIN, LOUIS 
NUDI,  DIANE 
I. 
JAMIESON,  LORA  LAVIN,  JAMES  YOEST, 
JEFFREY  MEYER,  CHRISTOPHER  H. 
FROMME,  TIMOTHY  F.  BURNETT,  CHRIS 
HERTZOG,  GLEN  ECKHART,  and  MARY 
FRANCES BALLARD, 

No. 7 MM 2012

Appeal from the Legislative 
Reapportionment Plan of the 2011 
Legislative Reapportionment 
Commission, dated December 12, 2011

ARGUED:  January 23, 2012

Appellants

v.

2011  LEGISLATIVE  REAPPORTIONMENT 
COMMISSION, 

Appellee

JUDITH 

SENATOR 
SENATOR 
JAY  COSTA, 
LAWRENCE  M.  FARNESE,  JR.,  SENATOR 
CHRISTINE  M.  TARTAGLIONE,  SENATOR 
SHIRLEY M. KITCHEN, SENATOR LEANNA 
M.  WASHINGTON,  SENATOR  MICHAEL  J. 
STACK,  SENATOR  VINCENT  J.  HUGHES, 
SENATOR  ANTHONY  H.  WILLIAMS, 
SENATOR 
SCHWANK, 
SENATOR  JOHN  T.  YUDICHAK,  SENATOR 
DAYLIN  LEACH,  SENATOR  LISA  M. 
E. 
BOSCOLA, 
DINNIMAN,  SENATOR  JOHN  P.  BLAKE, 
SENATOR 
KASUNIC, 
SENATOR  JOHN  N.  WOZNIAK,  SENATOR 
JIM  FERLO,  SENATOR  WAYNE  D. 
FONTANA, 
R. 
BREWSTER,  and  SENATOR  TIMOTHY  J. 
SOLOBAY, 

SENATOR 

SENATOR 

RICHARD 

ANDREW 

JAMES 

A. 

L. 

Appellants

No. 1 WM 2012

Appeal from the Legislative 
Reapportionment Plan of the 2011 
Legislative Reapportionment 
Commission, dated December 12, 2011

ARGUED:  January 23, 2012

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v.

v.

v.

2011  LEGISLATIVE  REAPPORTIONMENT 
COMMISSION, 

Appellee

MAYOR  CAROLYN  COMITTA,  COUNCIL 
PRESIDENT  HOLLY  BROWN,  WILLIAM  J. 
SCOTT,  JR.,  HERBERT  A.  SCHWABE,  II, 
JANE  HEALD  CLOSE,  FLOYD  ROBERT 
BIELSKI,  DAVID  LALEIKE,  E.  BRIAN 
ABBOTT,  NATHANIEL  SMITH,  and  W. 
DONALD BRACELAND, 

No. 2 MM 2012

Appeal from the Legislative 
Reapportionment Plan of the 2011 
Legislative Reapportionment 
Commission, dated December 12, 2011

Appellants

ARGUED:  January 23, 2012

Appellee

Appellants

Appellee

2011  LEGISLATIVE  REAPPORTIONMENT 
COMMISSION, 

MAYOR  LEO  SCODA  and  COUNCIL
PERSON JENNIFER MAYO, 

No. 3 MM 2012

Appeal from the Legislative 
Reapportionment Plan of the 2011 
Legislative Reapportionment 
Commission, dated December 12, 2011

2011  LEGISLATIVE  REAPPORTIONMENT 
COMMISSION, 

ARGUED:  January 23, 2012

THOMAS  SCHIFFER,  ALISON  BAUSMAN, 
RACHEL 
JOAN  TARKA, 
LAWRENCE  W.  ABEL,  MARGARET  G. 

J.  AMDUR, 

No. 4 MM 2012

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v.

v.

v.

Appellee

Appellants

Appellee

Appellant

Appellee

MORSCHECK,  LAWRENCE  J.  CHRZAN, 
JULIA SCHULTZ and SHIRLEY RESNICK, 

Appellants

Appeal from the Legislative 
Reapportionment Plan of the 2011 
Legislative Reapportionment 
Commission, dated December 12, 2011

ARGUED:  January 23, 2012

2011  LEGISLATIVE  REAPPORTIONMENT 
COMMISSION, 

SEKELA  COLES,  CYNTHIA  JACKSON  and 
LEE TALIAFERRO, 

No. 5 MM 2012

Appeal from the Legislative 
Reapportionment Plan of the 2011 
Legislative Reapportionment 
Commission, dated December 12, 2011

2011  LEGISLATIVE  REAPPORTIONMENT 
COMMISSION, 

SUBMITTED:  January 23, 2012

PATTY KIM, 

No. 6 MM 2012

Appeal from the Legislative 
Reapportionment Plan of the 2011 
Legislative Reapportionment 
Commission, dated December 12, 2011

2011  LEGISLATIVE  REAPPORTIONMENT 
COMMISSION, 

ARGUED:  January 23, 2012

EDWARD  J.  BRADLEY,  JR.,  PATRICK 
MCKENNA,  JR.,  DOROTHY  GALLAGHER, 
RICHARD  H.  LOWE,  and  JOHN  F.  "JACK" 
BYRNE, 

No. 8 MM 2012

Appeal from the Legislative 
Reapportionment Plan of the 2011 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 3

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Appellants

Legislative Reapportionment 
Commission, dated December 12, 2011

ARGUED:  January 23, 2012

2011  LEGISLATIVE  REAPPORTIONMENT 
COMMISSION, 

DENNIS J. BAYLOR, 

No. 9 MM 2012

Appeal from the Legislative 
Reapportionment Plan of the 2011 
Legislative Reapportionment 
Commission, dated December 12, 2011

2011  LEGISLATIVE  REAPPORTIONMENT 
COMMISSION, 

ARGUED:  January 23, 2012

ANDREW DOMINICK ALOSI, 

No. 10 MM 2012

Appeal from the Legislative 
Reapportionment Plan of the 2011 
Legislative Reapportionment 
Commission, dated December 12, 2011

2011  LEGISLATIVE  REAPPORTIONMENT 
COMMISSION, 

SUBMITTED:  January 23, 2012

CARLOS A. ZAYAS, 

No. 17 MM 2012

v.

v.

v.

v.

Appellee

Appellant

Appellee

Appellant

Appellee

Appellant

Appeal from the Legislative 
Reapportionment Plan of the 2011 
Legislative Reapportionment 
Commission, dated December 12, 2011

2011  LEGISLATIVE  REAPPORTIONMENT 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 4

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COMMISSION, 

SUBMITTED:  January 24, 2012

L. 
WILLIAM  C.  KORTZ,  MICHELLE 
VEZZANI,  MICHAEL  E.  CHEREPKO, 
JOYCE 
GREGORY 
LISA 
POPOVICH, 
BASHIOUM, and RICHARD CHRISTOPHER, 

EROSENKO, 
JOHN 

BEVEC, 

No. 4 WM 2012

Appeal from the Legislative 
Reapportionment Plan of the 2011 
Legislative Reapportionment 
Commission, dated December 12, 2011

Appellee

Appellants

v.

ARGUED:  January 23, 2012

2011  LEGISLATIVE  REAPPORTIONMENT 
COMMISSION, 

Appellee

OPINION

MR. CHIEF JUSTICE CASTILLE

DECIDED: January 25, 2012
OPINION FILED: February 3, 2012

Legislative redistricting “involves the basic rights of the citizens of Pennsylvania 

in  the election of  their  state  lawmakers.”1    In  twelve  separate matters,  Commonwealth

citizens, acting  singly  or in  groups,  filed  appeals  from  the  Final Plan for  legislative 

redistricting  of  the  Commonwealth,  which  was devised  by appellee,  the  2011 

Pennsylvania Legislative Reapportionment Commission (the “LRC”), in response to the 

U.S. decennial census.  In an attempt to conduct meaningful appellate review with the 

prospect of minimal disruption of the 2012 primary election process, this Court ordered 

accelerated briefing and oral argument.  Expedition was required, as in all redistricting 

                                           
1

Butcher v. Bloom, 203 A.2d 556, 559 (Pa. 1964).

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 5

appeals,  in  part  due  to the  compressed  time  frame  in  which  to  accomplish  the task 

before  the  next  election  -- particularly  in  an  election  year  involving  a  presidential 

primary.  However, the Court was aware at the outset that its efforts at expedition were 

incapable  of  avoiding  interference  with  the  primary  election  season  because,  for 

reasons not addressed by the LRC, the LRC failed to adopt a Final Plan in a timeframe 

that offered the remote prospect of appellate review before the primary season began.  

The LRC’s inexplicable delay ensured that primary candidates who relied upon the 2011 

Final  Plan  did so  at  their  peril.    As  we  discuss  in  detail  infra,  the  Pennsylvania 

Constitution makes clear that a reapportionment plan can never have force of law until 

all  appeals  are decided,  and  even then, only  if  all  challenges  are dismissed.    See PA.

CONST. art II, § 17(e).2

In  any  event,  fourteen  days  after  the  appeals  were  filed,  seven  days  after  the 

matters were briefed, and two days after the appeals were argued, this Court issued its 

mandate  in  a  per  curiam order filed  January  25,  2012.    That  order  declared  that  the 

Final  Plan  was  contrary  to  law  under  Article  II,  Section  17(d)  of  the  Pennsylvania 

Constitution,  and  consistently  with  the  directive  in  that  constitutional  provision,  we 

                                           
2

Eminent counsel for the LRC acknowledged this fact at oral argument: 

CHIEF JUSTICE CASTILLE:  Let me ask you this, what if we 
send the plan back?  What happens?

[LRC COUNSEL]:  I guess the current seats are still in effect 
if  the  plan  goes  back.    The  Commission  would  have  to  do 
what  the  Court  instructs  us  to  do.    It  is  uncharted  territory, 
Chief Justice, I can tell you that.

Transcript of Oral Argument, 1/23/2012, at 165. 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 6

remanded  the  matter  to  the  LRC to  reapportion  the  Commonwealth  in  a  manner 

consistent with an Opinion to follow.  This is that Opinion.

The substantive task of the LRC in decennial redistricting is governed by Article 

II, Section 16 of the Pennsylvania Constitution, which provides:

The Commonwealth shall be divided into fifty senatorial and 
two  hundred  three  representative  districts,  which  shall  be 
composed  of  compact  and  contiguous  territory  as  nearly 
equal  in  population  as  practicable.  Each  senatorial  district 
shall elect one Senator, and each representative district one 
Representative. Unless absolutely necessary no county, city, 
incorporated  town,  borough,  township  or  ward  shall  be 
divided  in  forming  either  a  senatorial  or  representative 
district.

PA. CONST. art. II, § 16. The Constitution also specifically provides that, once the LRC 

has adopted a Final Plan, “any aggrieved person” may appeal directly to this Court.  PA.

CONST. art. II, § 17(d).  The Constitution further commands that, if that aggrieved citizen 

“establishes  that  the  final  plan  is  contrary  to  law,”  this  Court  “shall  issue  an  order 

remanding the plan to the commission and directing the commission to reapportion the 

Commonwealth in a manner not inconsistent with such order.”  Id.

In  our  most 

recent

redistricting  opinion,  Albert  v.  2001  Legislative 

Reapportionment  Commission,  790  A.2d  989,  991  (Pa.  2002),  we  rejected  a  series  of 

localized challenges to a final plan, which were based on lack of compactness, alleged 

unnecessary splits of particular political subdivisions, and other issues.  Central to our 

decision  in  that  case  was  our  recognition  that  the  challengers  there  had  “focused 

primarily  on  the  impact  of  the  plan  with  respect  to  their  particular  political  subdivision, 

rather than analyzing the plan as a whole, as is required under a proper constitutional 

analysis.”    Id. at  995.    We  repeated  the  admonition  in  our  legal  analysis,  noting  that 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 7

“[t]he Commission persuasively argues that none of the appellants ha[s] met the heavy 

burden of establishing that the final plan, as a whole, is contrary to law.” Id. at 998.3  

As we develop more fully below,  we find that the 2011 Final Plan is contrary to 

law  because  appellants  -- in  particular,  the  appellants  in  Holt v.  2011  Legislative 

Reapportionment  Commission,  7  MM  2012,  and  to  a  lesser  extent,  the  appellants  in 

Costa v.  2011  Legislative  Reapportionment  Commission,  1  WM  2012  -- have  heeded 

the admonition in Albert, and they have demonstrated that the Final Plan, considered as 

a  whole, contains  numerous  political  subdivision  splits  that  are  not  absolutely 

necessary,  and  the  Plan  thus  violates the  constitutional  command  to  respect  the 

integrity  of  political  subdivisions.    Furthermore,  in  their  challenge,  the  appellants  have 

shown that the LRC could have easily achieved a substantially greater fidelity to all of 

the mandates in Article II, Section 16 -- compactness, contiguity, and integrity of political 

subdivisions -- yet the LRC did not do so in the Final Plan.

Although  we  are  satisfied  that  the  appellants  challenging  the  Final  Plan  as  a 

whole have made their case under existing decisional law and constitutional imperative, 

our  consideration  of  this  appeal,  and  our  review  of  prior  law,  has  convinced  us  that, 

going forward – and the initial opportunity to go forward is upon this remand – a better 

and more accurate calibration of the interplay of mandatory constitutional requirements 

would  provide  salutary  guidance  in future  redistricting  efforts.    Accord Order,  1/25/12

(per curiam) (Saylor, J., dissenting, joined by Eakin and Orie Melvin, JJ.).4  Part VII of 

this Opinion provides that guidance.

                                           
3

Albert and our other reapportionment decisions are addressed at length infra.

4

Mr. Justice Saylor’s dissent states: “Based on the petitions, briefs, and argument, 
I am not persuaded that the 2011 Legislative Reapportionment Plan is contrary to law 
as reflected in the existing precedent.  Although I am receptive to the concern that past 
decisions of the Court may suggest an unnecessarily stringent approach to equalization 
(…continued)

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 8

The delay of  the  LRC  in  producing  a  Final  Plan  has  created  a  situation  where, 

notwithstanding the alacrity with which this Court has acted, this Court’s discharge of its 

constitutional  duty  to  review  citizen  appeals  has  resulted  in  disruption  of  the  election 

primary  season.    But,  in  these  circumstances,  ones not  of  this  Court’s  creation,  the 

rights  of  the  citizenry  and  fidelity  to  our  constitutional  duty  made  the  disruption 

unavoidable. 

I.

Background for the Adoption of the 2011 Final Plan

Every  ten  years,  following  the  federal  decennial  census,  our  Constitution 

mandates reapportionment, or redistricting, of the Commonwealth.  See PA. CONST. art. 

II, § 17(a).5  The federal decennial census is conducted pursuant to Article I, Section 2 

mandates  of  the  U.S.  Constitution  to  count every  resident  of the United  States for  the 

purpose of apportioning representatives to the U.S. Congress among the States.  See

U.S. CONST. art.  I,  §  2,  cl.  3;  amend.  XIV,  §  2;  XVI.    The  Commonwealth  uses  U.S. 

Census data for the purpose of apportioning and demarcating Pennsylvania seats in the 

U.S.  House  of  Representatives,  the  state House  of  Representatives,  and  the  state

Senate.    The  process  of  reapportioning the  Pennsylvania  General  Assembly  is 

specifically outlined in Article II, Section 17 of the Pennsylvania Constitution.

                                           
(continued…)
of  population  as  between  voting districts,  I  believe  this  could  be  addressed  via 
prospective guidance from the Court.”  

5

Reapportionment  is  perhaps  a  less  apt  term  for  the  task  than  redistricting,  for 
although the occasion for the process is the change in population distribution revealed 
by  the  census,  the  process  requires  consideration  of  other  factors  in  establishing  new 
House and Senate districts.  Although we use both terms, the Pennsylvania Constitution 
uses the term “reapportionment.”  See PA. CONST. art. II, § 17.

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 9

As required by Section 17, a reapportionment body was constituted in 2011, the 

year following the federal decennial census.  See PA. CONST. art. II, § 17(a).  That body, 

the  LRC,  consists  of  five  members,  four  of  whom  are  specifically  identified  by  the 

Constitution based upon their partisan leadership roles in the General Assembly: for this 

reapportionment, the  members  are  the  Senate  Majority  Leader  (Dominic  Pileggi  (R)), 

the  Senate  Minority  Leader  (Jay  Costa  (D)),  the  House  Majority  Leader  (Mike  Turzai 

(R)),  and  the  House  Minority  Leader  (Frank  Dermody (D)).    See PA. CONST.  art.  II,  § 

17(b).    On  February  18, 2011, the  President  pro  tempore  of  the  Pennsylvania  Senate 

and  the  Speaker  of  the  Pennsylvania  House  of  Representatives certified  these four 

automatic members  to  serve  on  the  2011  LRC.  Section  17(b) provides  that  the  four 

legislative  members  of  the  LRC  shall  select  the  fifth  member,  who  will  serve  as 

chairman, within forty-five days of their certification.  If the legislative leaders fail in this 

task, the Supreme Court is required to appoint the chairman within thirty days.  On the 

forty-fifth  day after  their  certification,  on  April  4,  2011,  the  legislative  members

announced their failure  to  agree  on  the chairman  of  the  LRC,  leaving  the  task  of 

appointment to this Court.  Fifteen days later, on April 19, 2011, this Court appointed as 

LRC chairman the Honorable Stephen J. McEwen, Jr., President Judge Emeritus of the 

Superior  Court  of  Pennsylvania.    The  Court’s  prompt  action  afforded  the  LRC  two 

additional  weeks  to  perform  its  task.  The  LRC  appointed  its  technical  staff  and  legal 

advisors at an administrative meeting in May 2011.

The U.S. Census Bureau had released 2010 census data to the Commonwealth 

on  March  9,  2011. 

  See Pennsylvania  Legislative  Redistricting  website,

http://www.redistricting.state.pa.us/index.cfm.    This  data  was  released  well  before  the 

deadline provided by federal law.  See 13 U.S.C. § 141 (“basic tabulations of population 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 10

of each other State, shall, in any event, be completed, reported, and transmitted to each 

respective State within one year after the decennial census date,” i.e., April 1, 2011).  

On  August  17,  2011,  after  a  lengthy  delay,  the  LRC  accepted  the  U.S.  census 

data as presented by  the  Legislative  Data  Processing  Center (“LDPC”) and  contractor 

Citygate  GIS  as  “usable,” and  resolved  that  the  availability  of  the  data  triggered  the 

ninety-day  period  for  filing  a  preliminary  redistricting  plan.    See PA. CONST.  art.  II,  § 

17(c) (“No later than ninety days after either the commission has been duly certified or 

the  population  data  for  the  Commonwealth  as  determined  by  the  Federal  decennial 

census are available, whichever is later in time, the commission shall file a preliminary 

reapportionment  plan  with  such  elections  officer.”).    There  is  no  explanation  for  the 

LDPC’s delay in generating “usable” data, a circumstance we will address below.6

                                           
6

In a document provided to the LRC entitled “Legal Issues Implicated by the 2011 
Decennial  Legislative  Reapportionment  of  the  Commonwealth  of  Pennsylvania  -- An 
Overview,”  LRC’s  counsel  suggested  that  the  data  was  available  in  usable  form  “only 
after  the  raw  data  with  the  breakdown  by  precinct  and  ward  has  been  processed  and 
edited  by  the  LDPC  [Legislative  Data  Processing  Center]  and  the  final  form  of  data  is 
delivered to the Commission.”  See Del Sole Cavanaugh Stroyd LLC Memorandum at 5, 
attached  as  Exhibit  A  to  the  Appendix  to  the  Petition  for  Review  filed  by  the  Costa
Appellants at 1 WM 2012.

For  the  proposition  that  the  LRC  did  not  have  “usable”  data  until  August  2011, 
despite the earlier availability of census data, the LRC relied on an account of the 1981 
and  1991  Reapportionments  authored  by  Dean  Ken  Gormley,  who  was  the  Executive 
Director  of  the  1991  Legislative  Reapportionment  Commission,  and  is  at  present  the 
Dean of the Duquesne University School of Law.

[T]he  Commission  asked  whether  data  was  deemed  to  b[e] 
“available” when  it  received the  “raw” form  from  the  federal 
government  or  when  it  was  translated  into  a  form  that  was
actually  usable.  The  Chief  Justice  issued  an  unpublished 
Order  [on  March  26,  1981],  which  stated  that  the  census
data  became  available  “in  usable  form  (breakdown  of  data 
In  1991, some  members  of  the 
by  precinct  and  ward).”
Commission  considered  again  seeking  clarification  on  the 

(…continued)

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The LRC held public hearings in Allentown and Pittsburgh, on September 7 and 

14,  2011,  and announced a  preliminary  redistricting plan  on  October  31,  2011,  at  a 

public administrative meeting in Harrisburg.  The LRC approved the preliminary plan by 

a  vote  of  3 to  2,  with  the  minority  leaders  in  the  House  and  Senate  dissenting.  On 

November  16,  the  LRC  approved  technical  corrections  to  the  preliminary  plan for  the 

House of Representatives.  The LRC entertained citizens’ comments and objections to 

the preliminary redistricting plan at public hearings in Harrisburg, on November 18 and 

23, 2011, see PA. CONST. art. II, § 17(c), but made no further changes and offered no 

formal  response  to  citizen  concerns.    On  December  12,  2011,  the LRC  approved  its

Final Plan by a vote of 4 to 1, with Senate Minority Leader Jay Costa dissenting.  

Absent appeals within the thirty day period afforded by the Constitution, the Final 

Plan  would  have  had  force  of  law.    See PA. CONST.  art.  II,  §  17(e).    However,  twelve 

separate  appeals  from  the  2011  Final  Plan were filed  by  citizens claiming  to  be 

aggrieved, as is their constitutional right.  See PA. CONST. art. II, § 17(d) (“Any aggrieved 

                                           
(continued…)

definition  of “usable.”  Ultimately,  the  Commission  decided 
that  it,  not  the  Supreme  Court,  was  the best  judge  of  when 
the  data  provided  to  it  was  in  a  form  that  was  sufficiently 
“usable” for  its purposes.  As  such,  the  Commission  sought 
no  further  clarification  from  the  Court  and  deemed the  data 
to be “usable” on June 27, 1991 -- when the data had been 
revised  and  delivered 
the 
Legislative Data Processing Center (“LDPC”).

the Commission 

from 

to 

Del Sole Cavanaugh Stroyd LLC Memorandum at 4-5 (citations omitted); see also Ken 
Gormley,  The  Pennsylvania  Legislative  Reapportionment  of  1991,  at  22-24
(Commonwealth of Pennsylvania Bureau of Publications 1994).

No party to these appeals objects to the notion that the data must be in “usable” 

form before the LRC can formulate a preliminary plan.

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 12

person may file an appeal from the final plan directly to the Supreme Court within thirty 

days after the filing thereof.”).  In each appeal, the appellants filed petitions for review, 

against several  of  which  the  LRC  filed  preliminary  objections.7    The  LRC  also  filed  a 

prompt  consolidated  answer,  responding  to  the  first  eleven  petitions for  review.8    This 

Court  then  directed  briefing  on  an  accelerated  schedule;  all  parties  timely  complied.  

The  Court  reserved  a  special  session  to  hear  oral  argument  on  January  23,  2012,  in 

Harrisburg, five days after briefing, and we heard argument in nine of the appeals that 

day. Many  of  the  appeals  raise  overlapping  claims,  and  indeed,  in  some  instances, 

appellants ultimately relied upon the briefs of other aggrieved citizens.9

Two  days  later,  on  January  25,  2012,  this Court  issued  a  per  curiam order, 

declaring that  the  Final  Plan was  contrary  to  law,  and  remanding  to  the  LRC  with a 

directive  to  reapportion  the  Commonwealth  in  a  manner  consistent  with  this  Court’s 

Opinion, which would follow.  See Order, 1/25/12 (per curiam) (citing PA. CONST. art. II, 

§ 17(d)).  Our per curiam order also directed that the 2001 Legislative Reapportionment 

Plan, which this Court previously ordered to “be used in all forthcoming elections to the 

General  Assembly  until  the  next  constitutionally  mandated  reapportionment  shall  be 

approved,” would remain in effect until a revised final 2011 Legislative Reapportionment 

                                           
7

appeals and the LRC’s filings infra.

We  address  the  propriety  of  preliminary  objections  in  legislative  redistricting 

8

9

The twelfth petition, Zayas v. 2011 Legislative Reapportionment Commission, 17 
MM  2012  /  J-31-2012,  proceeded  separately,  due  to  an  administrative  delay  in 
ascertaining  the  timeliness  of  the  appeal.    Briefing  in  that  matter  was  completed  after 
oral argument, and it was submitted on the briefs.  

Three  of  the  appeals  were  submitted for  consideration  on  the  briefs:  Zayas; 
Coles  v.  2011  Legislative  Reapportionment  Commission,  5  MM  2012  /  J-5-2012;  and 
Alosi v. 2011 Legislative Reapportionment Commission, 10 MM 2012 / J-10-2012.

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 13

Plan  having the force of  law  is  approved. See Order,  1/25/12  (per  curiam)  (citing PA.

CONST. art. II, § 17(e) and Albert, 790 A.2d at 991). That aspect of our mandate arose 

by operation of law; where a Final Plan is challenged on appeal, and this Court finds the 

plan  contrary  to  law  and  remands,  the  proffered  plan  does  not  have  force  of  law,  and 

the  prior  plan  obviously  remains  in  effect.10 Mr.  Justice  Saylor  filed  a  dissenting 

statement, in which Mr. Justice Eakin and Madame Justice Orie Melvin joined.  

II.

Preliminary Issues

A.

The LRC’s Delay in Adopting a Final Plan

As we have noted, the Final Plan was adopted at such a late date as to ensure 

that,  even  with  adoption  of  the  most  accelerated  of  processes,  this  Court  would  lack 

adequate  time  to  consider the  matter, with  due  reflection, and  issue  a  mandate  and 

                                           
10

Of  course,  the  Court  was  cognizant  that  the  LRC’s  timeline  in  adopting  a  Final 
Plan  had  ensured  that  the  appeals  would  carry  into  the  period  when  nomination 
petitions could begin to be circulated, and that any mandate other than outright denial or 
dismissal  of  the  appeals  could  cause  disruption  of  that  process.    Therefore,  the  per 
curiam order also was careful to adjust the primary election schedule and, consistently 
with  the  order  we  entered  on  February  14,  1992,  the  last  time  a  presidential  primary 
occurred in a reapportionment year, we directed that petition signatures collected before 
our mandate issued would be deemed valid as to timeliness.  See Order, 1/25/12 (per 
curiam).  Our adjustment of the primary election calendar does not alter the discretion 
vested in the Commonwealth Court, which will be tasked in its original jurisdiction with 
hearing  any  objections  to  nominating  petitions.    The  Election  Code  provides a  very 
restrictive  time  schedule,  specifically  including  a  ten day  cut-off  for  hearings  and  a 
fifteen day deadline for decisions.  25 P.S. § 2937.  However, this Court recognized that 
appeals of this nature entail the “exercise of purely judicial functions.” In re Nomination 
Petition  of  Moore,  291  A.2d  531,  534 (Pa.  1972).    Thus,  as  it  respects  the  judicial 
function,  the  Election  Code’s  deadlines are understood  in  this  context  as  “directory,” 
although  the  deadlines  and  requirements  of  the  Code  will  remain  mandatory  as  to 
petitioners.  See also Mellow  v.  Mitchell,  607  A.2d  204,  224  (Pa.  1992)  (same);  In  re 
Shapp, 383 A.2d 201, 204 (Pa. 1978) (same).

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 14

reasoned  decision  before  the  primary  election  process  was  underway.    The  delay  is 

unexplained; and it stands in stark contrast to the timing of the adoption of prior plans, 

plans  that  were  no  doubt  created  with  less  advanced  computer  technology.    The 

Constitution  provides  that  “[n]o  later  than  ninety  days  after  either  the  commission  has 

been duly certified or the population data for the Commonwealth as determined by the 

Federal decennial census are available, whichever is later in time, the commission shall 

file a preliminary reapportionment plan. . . .”  PA. CONST. art. II, § 17(c).  The year 2012 

is a presidential election year, with the result that the Pennsylvania primary is held three 

weeks earlier than in other years, and that all primary filing and litigation deadlines are 

advanced  by  three  weeks  as  well.11    Indeed,  the  first  day  to  circulate  nomination 

petitions for  the  primary  was  January  24,  2012.    Despite  this  known fact, the LRC did 

not  adopt  its  Final  Plan  until  December  12,  2011,  a  mere  forty-three  days  before  that 

important  date.    Under  the  Pennsylvania  Constitution,  persons  aggrieved  by  the  Final 

Plan had thirty days to file an appeal to this Court, or until January 11, 2012, which is 

the very day the bulk of the twelve appeals were filed.  PA. CONST. art. II, § 17(d).  Even 

                                           
11

Section 603 of the Election Code provides, in relevant part:

General Primary; Candidates to Be Nominated and Party 
Officers  to  Be  Elected.    (a)  There  shall  be  a  General 
primary preceding each general election which shall be held 
on  the  third  Tuesday  of  May  in  all  even-numbered  years, 
except  in  the  year  of  the  nomination  of  a  President  of  the 
United  States,  in  which  year  the  General  primary  shall  be 
held on the fourth Tuesday of April. Candidates for all offices 
to  be  filled  at  the  ensuing  general  election  shall  be 
nominated  at  the  General  primary.  The  vote  for  candidates 
for  the  office  of  President  of  the  United  States,  as  provided 
for by this act, shall be cast at the General primary.

25 P.S. § 2753(a).

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 15

with  accelerated  briefing and  argument,  the  appeals  could  not  be  decided  with  a 

reasoned opinion before January 24, 2012.  And, obviously, the lateness of the adoption 

of  the  Final  Plan  virtually  ensured  that  no  remand  could  be  accomplished  without 

disrupting the primary process.

As  noted  above,  the  LRC states that  the  2010  census  data  was  not  “available” 

before August 17, 2011, the date the LDPC provided it with the census data in “usable 

form,” and that “this event triggered the 90-day time-period for formulating a preliminary 

reapportionment plan.”  LRC’s Brief at 10; accord Costa Brief at 3. Notably, with far less 

sophisticated technology in 1991, and with two fewer rounds of redistricting experience, 

the LDPC was able to produce the census data in usable form by June 27th of that year

-- fifty-one  days  sooner.    Gormley,  Legislative  Reapportionment, at 24.12    This  diligent 

effort allowed  the  1991  LRC  greater  time  for  commentary  and  adjustment,  and 

permitted  adoption  of  the  1991  Final  Plan,  which  also  affected  a  presidential  primary 

election  season,  as  early  as  November  15,  1991, twenty-seven  days  sooner  than  the 

2011  Final  Plan was  filed.  See In  re  1991  Pa. Legislative  Reapportionment  Comm’n, 

609 A.2d 132, 135 (Pa. 1992) (“In re 1991 Plan”); see also In re Reapportionment Plan, 

442 A.2d 661 (Pa. 1981) (“In re 1981 Plan”) (LRC filed its 1981 Final Plan on October 

13,  1981).    Likewise,

the  2001  LRC,  which  did  not  face  the  compression  of  a 

presidential  primary  season,  produced  its  Final  Plan  on  November  19,  2001,  twenty-

three days earlier than the Plan adopted by the 2011 LRC.  See Albert, 790 A.2d at 992.

The LRC provides no further information about the LDPC’s procedures, and what 

precisely  the  LDPC  must  do  to  the  so-called  “raw”  census  data  in  order  to  render  it 

                                           
12

Dean Gormley’s account of the 1991 reapportionment describes at some length 
the  diligent  efforts  of  the  LRC  and  the  LDPC  to  ensure  that  the  census  data  was  in 
usable form as soon as possible.  See Gormley, Legislative Reapportionment, at 22-24.

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 16

“usable” by the LRC for redistricting purposes.  Given advances in computer technology 

since 1991, and the cumulative experience of those tasked with amassing and providing 

the data to the LRC, the delay here, in a presidential primary year, is as troubling as it is 

inexplicable.   We  remind  the  LRC  that  the  Constitution  specifically  authorizes  appeals 

from final plans, and the LRC this year, and whatever entity bears the burden in future 

years, should  thus  approach  its  bipartisan  constitutional  task  with  an  eye  toward 

affording sufficient time for meaningful appellate review, if appeals are filed. 

B.

The LRC’s Preliminary Objections

The  LRC  filed  preliminary  objections in  most of  these appeals,  seeking  outright 

dismissal  for  what  it  terms pleading  defects.    After  the  initial  petitions  for  review  were 

filed, but before briefing, the LRC filed preliminary objections in Costa, Comitta, Scoda, 

Coles,  Kim,  Bradley,  and  Kortz,  asserting  that  those  petitions  should  be  dismissed  for 

failure to include a verification.  The LRC also filed preliminary objections in Baylor and 

Alosi, two of the pro se appeals, asserting that those appellants violated rules regarding 

the  form  of  pleading.    LRC’s  Preliminary  Objections  (citing  Pa.R.A.P.  1513(c)).    The 

LRC did not file preliminary objections in either Schiffer, Zayas, or Holt, which this Court 

has designated as the lead appeal.  The LRC argues that redistricting challenges arise

in  this Court’s original  jurisdiction  and,  therefore,  as  in  all  other  original  jurisdiction 

matters,  all  rules  regarding  pleading  and  verification  apply  here. LRC’s  Preliminary 

Objections (citing Pa.R.A.P.  1517  (Pennsylvania  Rules  of  Civil Procedure  apply  to 

petitions  for review  filed  in  appellate  court’s  original  jurisdiction);  Pa.R.A.P.  1513(e)(5) 

(petition for review filed in appellate court’s original jurisdiction must be verified)).

The  Costa appellants  responded  with  a  motion  to  strike  the  LRC’s  preliminary 

objections,  arguing  that  redistricting  appeals lie  in  this  Court’s  appellate  rather  than 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 17

original  jurisdiction  and that as  such,  no  verification  is  required.    See Costa Motion  to 

Strike at 4 (citing Pa.R.A.P. 1513(d)).  Appellants in Coles, Kim, and Bradley joined the 

Costa motion to strike.  The appellant in Baylor sought to “cure” the alleged defects with 

additional filings.13

Our mandate having already issued, without dissent on the grounds specified in

the  preliminary  objections, 

the  preliminary  objections  obviously must 

fail.14  

Nonetheless, it is important to address the nature of these appeals, and the consequent 

propriety  of  preliminary  objections, because  of  the  supplementary  layer  of  complexity 

and delay that  would  result  from  permitting  preliminary  objections  in  cases  already 

subject to an accelerated appeals process.  

The  question  of  whether  preliminary  objections  to  petitions  for  review  are 

cognizable in redistricting appeals turns on whether these appeals are properly viewed 

as  sounding in  this  Court’s original  or  its  appellate  jurisdiction.    Our  Constitution 

describes the process to challenge the Final Plan: “[a]ny aggrieved person may file an 

appeal from the final plan directly to the Supreme Court . . . .”  PA. CONST. art. II, § 17(d)

                                           
13

Baylor  also 

Appellant  Baylor  sought  to  file  an  amended  petition  for  review,  with  additional 
substantive  material. 
for  post-submission 
communication,  in  which  he  claimed that  the  late  filing  of  the  LRC’s  preliminary 
objections foreclosed any opportunity to respond in a timely fashion.  In response, the 
LRC challenged Baylor’s request to amend as an improper attempt to add waived new 
claims to his petition for review.  Given our disposition, infra, these ancillary petitions are 
denied.

filed  an  application 

14

Notably, at oral argument, the LRC did not press its preliminary objections, going 
instead  to  the  merits  of  the  appeals.    In  any  event,  the  Holt appeal,  upon  which  we 
primarily  base  our  disposition,  was  not  challenged  by  preliminary  objections.  
Nevertheless,  since  these matters  involve  the  preeminent  right  to  the franchise and  to 
selection  of  the  representatives  who  give  voice  to  the  citizens’  concerns,  mere 
technicalities in pleadings shall not impede our deliberative process.

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 18

(emphasis  supplied);  accord 42  Pa.C.S. §  725(1).    In  concert  with  that  constitutional 

authority,  our  Rules  expressly  provide  that, unless  otherwise  ordered,  “appeals”  under 

Article  II,  Section  17(d)  shall  proceed  under  Chapter  15 of  the  Rules  of  Appellate 

Procedure, which  generally  governs judicial  review  of  governmental  determinations, 

such as agency appeals to the Commonwealth Court. Pa.R.A.P. 3321; see Pa.R.A.P. 

1501(a).  Rule 1516(a) specifies that petitions for review in redistricting appeals proceed 

within  this  Court’s  appellate  jurisdiction.    See Pa.R.A.P.  1516(a).    Additionally,  as  the 

Costa appellants  note,  this  Court  has  generally  utilized  terminology  applicable  to 

appeals  in  reviewing  reapportionment  challenges.    See Costa Motion  to  Strike  at  3 

(citing, inter alia, Albert, 790 A.2d at 992 and In re 1991 Plan, 609 A.2d at 135).

Generally,  in  matters  filed  within  a  court’s  appellate  jurisdiction,  no  pleadings 

(including  answers  and  preliminary  objections)  may  be  filed as  of  right in  response  to 

petitions for review.  The Rules of Appellate Procedure simply do not contain a provision 

similar  to  that  in  the  Rules  of  Civil  Procedure  permitting  the  filing  of  preliminary 

objections.    Compare Pa.R.A.P.  1501 et  seq. with Pa.R.C.P.  No.  1028.    Rule  1516 

specifically provides that, as to redistricting matters, “[n]o answer or other pleading to an 

appellate  jurisdiction  petition  for  review  is  authorized,  unless  the  petition  for  review  is 

filed pursuant to . . . Rule 3321.” Pa.R.A.P. 1516(a).  Rule 3321 is a narrow exception 

to Rule 1516, by which this Court may permit filing of an “answer or other pleading” by 

order.  In the appeals before us, our scheduling order noted that we would entertain a 

substantive  answer  and brief  from  the  LRC,  but  we  did  not  authorize the  filing  of

preliminary objections.  See Order, 1/11/12 (per curiam).

This  practice  is  appropriate,  as  it promotes  the  salutary  purposes embodied  in 

the Rules of Appellate Procedure.  These Rules are meant to be “liberally construed to 

secure  the  just,  speedy  and  inexpensive  determination”  of  appeals,  Pa.R.A.P.  105(a).  

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 19

Re-characterizing  these  constitutional  appeals  as  challenges  sounding  in  our  original 

jurisdiction  would  not  advance  orderly  review  of  these time-sensitive,  and  often 

complex, matters.  We view the petition for review process in these appeals as putting 

the  Court  on  notice  of  the  scope  of  the  issues  to  come  before  it,  inevitably  in  an 

accelerated time frame, and in advance of the briefs.  The process permits the Court to 

organize the appeals for purposes of oral argument, and to begin to conduct research 

on  the  issues.    It  would  do  nothing  to  advance  “the  just,  speedy  and  inexpensive 

determination” of this unique class of appeals to treat the cases as if they were original 

jurisdiction  matters,  and  thus  to  open  the  doors  to  technical  pleading  challenges  and 

counter-challenges,  and  add a  layer  of  complexity  to  a  time-sensitive matter,  without 

illuminating  the  substantive  issues  upon  which  the  Court  must  pass.    Accordingly,  the 

Costa appellants’ Motion to Strike is granted and the LRC’s preliminary objections are 

stricken.

III.

The Appellants and Their Various Claims

A.

The Citizen Appellants

Our Constitution permits any aggrieved person to file an appeal from the LRC’s 

plan directly to this Court.  See PA. CONST. art. II, § 17(d).  The appeals from the 2011

Final Plan  were  brought  by  various registered  voters,  citizens  of  the  Commonwealth 

(together, “appellants”).  

In  the  lead  appeal  docketed  at  7  MM  2012  (“Holt”),  the  appellants  describe 

themselves  as  individual  voters,  registered  Democrats  and  Republicans,  hailing  from 

Allegheny,  Chester,  Delaware,  Lehigh,  and  Philadelphia  Counties.    Appellants  in  the 

appeal docketed at 1 WM 2012 (“Costa”) are all twenty Senators elected as Democrats, 

members  of  the  minority  party  in  the  Pennsylvania  General  Assembly,  and  registered 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 20

voters.  Senator Brewster, representing the 45th Senatorial District in the Monongahela 

Valley, filed a separate “letter brief” in support of the Costa appeal.

The appeals in both 2 MM and 3 MM 2012 focus on Chester County.  Appellants 

in  2  MM  2012 (“Comitta”),  are  elected  officials  and  resident  voters  in  West  Chester 

Borough, Chester County.  Appellants in 3 MM 2012 (“Scoda”) are resident voters and 

the  mayor  and  a  member  of  the  Borough  Council,  in  the  Borough  of  Phoenixville, 

Chester County.  

The separate appeals at 4 MM 2012, 5 MM 2012, and 8 MM 2012 all focus on 

Delaware  County.    Appellants  in  4  MM  2012  (“Schiffer”)  are  individual  voters  from 

Haverford  Township,  Delaware  County.    At  5  MM  2012  (“Coles”),  appellants  are 

individual voters from Upper Darby and Darby Townships in Delaware County. At 8 MM 

2012  (“Bradley”),  appellants  are  individual  voters  from  the  Delaware  County  Boroughs 

of Collingdale, Darby, Swarthmore, Upper Darby, and Yeadon.  Appellant at 6 MM 2012 

(“Kim”),  is  a  councilwoman  and  voter  in  the  City  of  Harrisburg,  Dauphin  County. 

Appellants  in  4  WM  2012  (“Kortz”)  are voters  from Allegheny,  Washington  and 

Lawrence Counties.  

Three appellants have filed pro se appeals.  At 9 MM 2012 (“Baylor”), appellant is

a  voter  and  Township  Auditor  in  Tilden  Township,  Berks  County.    At  10  MM  2012 

(“Alosi”),  appellant 

is a  resident of 

the  Shippensburg  area, 

in  South-Central 

Pennsylvania.  Finally, in the appeal docketed at 17 MM 2012 (“Zayas”), appellant is a 

voter in the City of Reading, Berks County.

In  all  of  these  appeals,  the  LRC  is  appellee.    The  LRC  does  not  dispute  the 

standing of any of the appellants. 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 21

B.

The Issues Raised by Appellants

Two of the appeals before us, Holt and Costa, explicitly raise and develop global 

challenges  premised  primarily  upon  the  constitutional  ban  on  dividing  counties, 

municipalities, and wards “unless absolutely necessary.”  See PA. CONST. art. II, § 16.  

The Holt and Costa appellants requested that the Court remand the Plan to the LRC for 

a second attempt at redistricting in accordance with law.  Because the Holt claims, and 

to a lesser extent, the Costa claims, form the primary basis for our conclusion that the 

Final  Plan  was  contrary  to  law,  these  claims  will  be  developed  further,  infra.  

Challengers  in  three  other  appeals,  Coles,  Kim,  and  Kortz,  adopt  the  global  challenge 

as developed in the appellants’ brief in Costa.15  

The  appellants  in  Bradley also  adopted  the  Costa brief,  but  supplemented  the 

argument by highlighting a narrower and localized challenge to the House redistricting 

plan’s division of several Delaware County boroughs: Collingdale, Darby, Swarthmore, 

Upper  Darby,  and  Yeadon.    The  Bradley appellants  allege that  the  boroughs  at  issue 

have  substantial  minority  populations,  which  share  unique, common  political  interests, 

but whose political influence is diluted by the unnecessary divisions.  In their view, the 

populations  of  these  boroughs  are  sufficiently  small  for  each  to  be  kept  intact  in  a 

redistricting plan.  Indeed, Darby, Collingdale, Yeadon and Swarthmore were kept intact 

in all redistricting plans before 2011.  These appellants request remand of the Plan, and 

express a special interest in maintaining the integrity of the municipalities they address.

Finally,  we  have  six  appeals  challenging  only  specific  and  local  divisions  of 

municipalities, in which the appellants, like the Bradley appellants in the development of 

their  specific  claim,  request  what  would  resemble  a  form  of  mandamus relief.  
                                           
15

We  note  that,  after  filing  separate  petitions  for  review,  these  appellants  did  not 
file  separate  briefs  but  joined  in  and  adopted  the  Costa brief;  thus,  no  separate 
discussion of their appeals is necessary.  

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 22

Specifically, the appellants ask for remand of the Final Plan to the LRC with an explicit 

directive  to  accommodate  their  local  concerns.    Thus,  in  Comitta,  appellants  object  to 

the division of West Chester Borough, the Chester County seat, into two House districts: 

under  the  Final  Plan,  four  wards  would  remain  in  the  156th  House  District,  and  three 

wards  would  be  removed  from  the  156th  District  and  placed  into  the  160th  House 

District.    The  Comitta appellants  request that  this  Court  order  the  LRC  on  remand  to 

maintain  the  integrity  of  West  Chester  Borough  and  restore  it  to  the  156th  House 

District. 

Similarly, in Scoda, appellants object to the division of Phoenixville Borough into 

two House districts: under the Final Plan, four wards would remain in the 157th House 

District,  and  three  would  be  removed  from  the  157th  District  to  the  155th  District.  

Appellants in Scoda request remand to the LRC, with a directive to maintain the integrity 

of  Phoenixville  Borough  and  restore  it  to  the  157th  House  District.    The  Comitta and 

Scoda appellants  also  both  claim  that  the  divisions  of  West  Chester  and  Phoenixville 

Boroughs  were  motivated  by  partisan  politics  and  by  the  desire  to  dilute  the  voting 

power of minorities, in violation of the Voting Rights Act of 1965.16

In Schiffer, appellants state that two Haverford Township wards, Wards 1 and 9, 

were separated from the rest of the township in the 166th House District and placed into 

the  163rd  House  District  under  the  2011  Final  Plan.    The  Schiffer appellants  ask  the 

Court to instruct the LRC on remand to assign all of Haverford Township to one district, 

the 166th House District.  

In the Baylor matter, the pro se appellant asserts that in the four decades since 

he  has  been  eligible  to  vote,  his  hometown  of  Tilden  Township,  in  Berks  County,  has 

never been represented by a Berks County resident in either the Pennsylvania House or 

                                           
16

42 U.S.C. § 1973 et seq.

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 23

the  Senate.    According  to  appellant,  Tilden  Township  has  also  been  moved  from  one 

House district to another in every reapportionment cycle, which has led to distinctively 

low  levels  of  political  participation  by  residents.    Appellant  also  argues  that  Berks 

County as a whole is excessively, and unnecessarily, divided into nine House districts.  

Appellant  requests  remand  to  the  LRC  for  development  of  a  non-partisan  plan  that 

complies  with  relevant  law;  appellant  suggests  redrawing  the  electoral  map  based  on 

school district boundaries.

The pro se appellant in Alosi challenges the division of the greater Shippensburg 

area,  which  appellant  states  is  a  unified  community  of  approximately  25,000  people.  

The Shippensburg area was formerly contained within the same 89th House District, but 

under  the  2011  Final  Plan,  it  has  been  divided  and  placed  into  three  separate  House 

Districts: the 86th District, the 89th District, and the 193rd District.  Appellant notes that 

the  Final  Plan  divides  two  counties,  Adams  and  Cumberland,  and  two  municipalities, 

Shippensburg  Borough  and  Southampton  Township,  and  has  the  effect  of  diluting  the 

political power of the Shippensburg area.  Appellant requests that the Plan be revised to 

maintain  the  89th  House  District  intact  or,  at  a  minimum,  to  remove  the  division  of 

Shippensburg Borough.  

Finally,  the  pro  se appellant  in  Zayas complains  that  the  Plan  unnecessarily 

fragments the City of Reading, in Berks County, into two House Districts, the 126th and 

the 127th, with the intention and effect of reducing the political effectiveness of a rapidly 

increasing and politically cohesive Hispanic population in Reading.  Appellant requests 

remand for  the  LRC  to  conduct  reapportionment  in  accordance  with  constitutional  and 

federal Voting Rights Act requirements. 

In addition to these substantive challenges, the appeals and the responsive brief 

of the LRC present disputes concerning the Court’s scope and standard of review and

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 24

the burden of proof, as well as requests to explain the status of the law or to reconsider 

precedent in this area.  Appellants address governing precedent from two perspectives.  

First,  some  appellants  appear  to  accept  the  LRC’s  view  of  a  peculiarly  narrow  scope 

and standard of judicial review (a central aspect of the LRC’s position, as we will explain 

below, is that alternative plans are irrelevant), and ask that we reject that precedent as 

so  understood.    Along  the  same  lines,  other  appellants  take  a  more  sophisticated 

approach,  which  reflects  a  closer  and  more  accurate  reading  of  our  redistricting 

precedent,  to  argue,  for  example,  that  there  is  no  absolute  ban  on  consideration  of 

alternative  redistricting  plans in  reviewing  whether  the  LRC’s  Final  Plan is  contrary  to 

the  law.    Second,  the  Comitta,  Scoda,  Schiffer,  Baylor,  Alosi,  and  Zayas appellants 

request  that  we  reconsider  the  requirement,  established  in  our  decisional  law,  that  a 

successful challenger must address the Final Plan as a whole, and revisit the precedent 

to  permit  rejection  of  a  final  plan  based  upon  a  challenge  focused  only  on  that  plan’s 

effect on a particular political subdivision.  See Albert, 790 A.2d at 995.

For  organizational and  decisional  purposes,  we  will  address  the  scope  and 

standard of review, as well as the burden of proof, first; we will then consider the global 

challenges, and finally the individual challenges. 

IV.

The Proper Review Paradigm

A.

Scope and Standard of Review

Redistricting appeals are unlike the great majority of matters upon which we pass 

in  that  there  is  no  conventional  determination  to  review,  and  an  atypical  party 

responding to the appeal.  The LRC, which devised the Final Plan in the first instance, 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 25

also has the task of defending its constitutionality against the specific appeals brought 

by citizens.17  

The  LRC  insists  on  an  unusually  deferential  judicial  stance implicating  both  the 

scope  and  standard  of  review, which  it  claims  rests  on  settled  precedent.    As  noted, 

some  appellants  accept  the  LRC’s  interpretation  of  precedent  and  request  that  we 

                                           
17

This was not always so.  In the first reapportionment appeals following adoption 
of the current Pennsylvania constitutional construct, the 1971 Final Plan was defended 
by  the  Attorney  General.    Commonwealth  ex  rel.  Specter  v.  Levin,  293  A.2d  15  (Pa. 
1972).  The appeals from the 1981, 1991, and 2001 plans all were defended by the LRC 
itself.    Notably,  as  recently  as  the  1991  reapportionment  appeals,  it  was  not  clear 
precisely  what  role  the  LRC  should  play  in  response.    As  Dean  Gormley,  Executive 
Director of the 1991 LRC describes the argument in 1992:

In  addressing  the  mountain  of  petitions  and  hastily-drafted 
briefs,  the  Commission’s  counsel  adopted  the  approach  of 
seeking  to  assist  the  Court  in  a  somewhat  detached  and 
neutral  fashion,  just  as  the  Solicitor  General  of  the  United 
States is often called upon to wear a dual hat as litigant and 
advisor to the U.S. Supreme Court.  Rather than embrace an 
aggressive, 
approach 
bent-on-prevailing-on-every-issue 
which  would  have  been  the  norm  for  modern  litigation,  the 
Chairman and Chief Counsel chose to provide the Court with 
as  much  information  as  possible  so  that  the  Court  could 
make  rational  decisions.  .  .  .    Not  only  was  this  approach 
meant to foster the trust of the Court, but it also reflected the 
belief  of  the  Chairman  himself  that  the  Commission  was
acting  not  as  a  litigant  in  the  typical  sense,  but  as  a 
representative of all citizens of the Commonwealth.  Thus, if 
the Reapportionment Plan was legally defective in any way, 
the  Chairman  believed,  the  Court  should  have  a  chance  to 
determine  this  for  itself  so  that  any  defect  could  be 
corrected.

Gormley,  Legislative  Reapportionment,  at  55.    Of  course,  we  recognize  that  the  LRC 
has considerable discretion to determine its role in litigation.  For better or for worse, the 
current  LRC  and  counsel  have  taken  a  more  adversarial  litigation  approach  than  their 
predecessors in 1991. 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 26

overrule it.  Other appellants, however, argue that the applicable precedent in fact does 

not contemplate or require the degree of deference argued by the LRC.   

Initially, we note that, although they are often confused or conflated by litigants, 

the scope of and the standard of review are distinct concepts and are not appropriately 

substituted for one another.  Succinctly stated, “scope of review” refers to “the confines 

within  which  an  appellate  court must  conduct  its  examination,” i.e.,  the  “what”  that the 

appellate court is permitted to examine.  Morrison v. Commonwealth, 646 A.2d 565, 570 

(Pa.  1994).  “Standard  of  review”  addresses the  manner  by  which that  examination  is 

conducted, the “degree of scrutiny” to be applied by the appellate court.  Id.

1.

Scope of Review

Identifying the proper scope of review is of unusual importance in these appeals

because the LRC’s core rebuttal to the global arguments forwarded in Holt and Costa is 

that this  Court’s  scope  of  review  prevents  it from  even  considering the  alternate  plans 

that  those  appellants  provided  to  the  LRC,  and  have  used  to  make  their  cases  here.  

The LRC’s argument that our scope of review is confined to the four corners of the Final 

Plan  rests  upon  two  pillars.    First,  the  LRC  argues  a  supposed  deference  due  to  it 

because reapportionment is a legislative task, and consideration of alternate plans, for 

any  purpose,  “would  not  only  usurp  the  Commission’s  constitutional  authority  to 

undertake  the  reapportionment  but,  more  seriously,  make  it  impossible  for  the 

Commission to ever know for certain that its plan will pass constitutional muster.”  LRC 

Brief at  30.    Second,  the  LRC  argues  that  this  Court’s  precedent  has  established  that 

review is limited to the four corners of the Final Plan, and further, that alternative plans 

posed  by  objector  citizens are irrelevant  for  any  purpose  -- even  for  the  purpose  of 

showing that a Final Plan is contrary to law.

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The LRC’s argument on the second point proceeds as follows. The LRC asserts 

that  in  this  Court’s first  two  reapportionment  decisions following  the  1968  Constitution,

“a majority of the Court specifically rejected the contention that alternative plans should 

be reviewed -- even if only as a measuring device rather than a substitute.”  Id. at 29.  

The  single  citation  accompanying  this  proposition  stated  as  black  letter  law  is  the 

dissenting opinion of Mr. Justice (later Chief Justice) Nix in In re 1981 Plan, 442 A.2d

at  669  (Nix,  J.,  dissenting).    The  LRC  then  adds  that  none  of  our  succeeding  cases 

have questioned or reexamined this scope of review, and we should not now “reject the 

forty  years  of  precedent  upon  which  the  Commission  relied  in  formulating  the  Final 

Plan.”  LRC Brief at 29.

The LRC repeats its claim that we specifically rejected the notion that alternative 

plans may be considered for any purpose, with slightly more elaboration, by discussing 

our 1982 decision.  The LRC notes that the majority opinion in that 4-3 decision stated 

that: “to prevail in their challenge to the final reapportionment plan, appellants have the 

burden of establishing not, as some of the appellants have argued, that there exists an 

alternative plan which is ‘preferable’ or ‘better,’ but rather that the final plan filed by the 

Pennsylvania  Reapportionment  Commission  fails  to  meet  constitutional  requirements.”  

In re 1981 Plan, 442 A.2d at 665.  On its own, this statement says nothing that would 

prohibit the Court, as a scope of review matter, from looking to alternate plans in order 

to  assess  the  constitutionality  of  the Final  Plan.    The  LRC  apparently  derives  that 

limitation from the fact that Justice Nix’s dissenting opinion offered that, while he agreed 

that  “we  do  not  dismiss  a  plan  because  ‘fortuitously’  another  may  have  constructed  a 

better one, the fact that a better one may be easily designed which accommodates all of 

the  constitutional  concerns  may  strongly  suggest  the  constitutional  invalidity  of  the 

selected  plan.”    Id. at  669  (Nix,  J.,  dissenting).    After  quoting  Justice  Nix, the  LRC 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 28

declares that “[t]hat view was rejected by a majority of the [In re 1981 Plan] Court.”  LRC 

Brief,  at  29-30.    The  LRC  does  not  cite  where  the  majority  opinion  in  In  re  1981  Plan

engaged Justice’s Nix point, and specifically rejected it.

The  Holt appellants  dispute  the  LRC’s  interpretation  of  the  applicable  scope  of 

review, arguing that the position that our review is limited to the four corners of the Final 

Plan  is  “tantamount  to  a  declaration  of  non-reviewability.”  Holt Brief at  14.    Appellants 

forward the modest proposition that this Court -- like the LRC in its formulation of a Final 

Plan -- may consider alternative plans addressing redistricting as a whole as mere proof 

or evidence that a substantial number of the Final Plan’s political subdivision splits were 

not  “absolutely  necessary,”  as  the  Constitution  requires,  and  thus the  plan as  a  whole 

could be deemed to be contrary to law on that basis.  

The Holt appellants make clear that they do not ask the Court to direct adoption

of any of the alternative plans presented to the LRC, including their own.  Their point is 

more nuanced:  they embrace Justice Nix’s view in dissent, quoted above, that the fact 

that better plans “may be easily designed which accommodate[] all of the constitutional 

concerns  may  strongly  suggest  the  constitutional  invalidity  of  the  selected  plan.”    Holt

Brief  at  20.    Appellants  note  that  this  Court has  never  been  presented  with  an  appeal 

that challenged a prior reapportionment plan in its entirety on grounds of constitutionally 

excessive  subdivision  splits  and,  therefore,  we  have  never  held  that  their  approach  --

offering an alternative plan as evidence or proof that the Final Plan is unconstitutional --

violates  the  established  scope  of  review  or  is  otherwise  not  viable.18    The  Costa

                                           
18

Unlike the Holt appellants, other appellants either accept the LRC’s interpretation 
or offer a more rudimentary reading of prior redistricting caselaw on the scope of review, 
colored  primarily  by  the  unfavorable  results  obtained  by  previous  challengers.    Thus, 
some appellants interpret our prior caselaw to prohibit any challenges either offering an 
alternate plan or centering on the absolute necessity of a local political subdivision split.  
See,  e.g.,  Schiffer Brief  at  9.    Other  appellants  understand  the  law  as  suggesting  that 
(…continued)

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 29

appellants  agree  with  the  Holt approach,  and  offer  for  comparison  an  alternate

redistricting  plan  that  Senator  Costa  proposed  to  the  LRC,  and  which  the  LRC

rejected.19  See Costa Brief at 32-33.20  

As  stated,  the  reapportionment process  is  outlined  in  our  Constitution,  and  that 

charter specifically confers upon “any aggrieved person” the right to appeal “directly to 

the  Supreme  Court.”    PA. CONST.  art.  II,  §  17(d).  Section  17(d) goes  on  to  specify  a 

standard  of  review  and  the  appropriate  remedy:  “[i]f  the  appellant  [in  a  redistricting 

matter] establishes that the final plan is contrary to law, the Supreme Court shall issue 

                                           
(continued…)
this Court will affirm any plan that compares favorably to past redistricting plans in terms 
of  population  equality.    See,  e.g.,  Comitta Brief  at  18.    These  appellants  advocate  in 
favor of a broader scope of review, permitting consideration of specific local challenges 
to prove that the LRC’s Final Plan is contrary to law; they request that we overrule any 
precedent to the contrary.  With respect to the relevance of alternate, global plans, our 
discussion  in  text,  infra,  provides  the  answer.    Respecting  the  invitation  to  revisit  our 
prior,  and  most  recent  precedent,  requiring  that  successful  challenges  encompass  the 
plan  as  a  whole,  see Albert,  790  A.2d  at  995  (in  conducting  constitutional  review,  this 
Court  “must  examine  the  final  plan  as  a  whole”),  we  are  disinclined  to  revisit  that 
precedent, particularly given that: (1) we are aware that changes to any one aspect of a 
plan  can  cause  a  ripple  effect;  (2)  the  2011  LRC  could  fairly  rely  on  the  unequivocal 
“final  plan  as  a  whole”  language  in  Albert;  and  (3)  the  parameters  this  Opinion  is 
establishing, followed with fidelity, should operate to significantly reduce the number  of 
political subdivisions split by a new plan.

Unlike the Holt appellants, infra, the Costa appellants suggest that, upon remand, 
the  LRC  should  revise  the  Final  Plan  by  using  Senator  Costa’s  alternate  plan  as  a 
starting point.  Costa Brief at 34.  Our mandate does not require such action.

The  Costa alternate  plan  creates  fewer  subdivision  splits  than  the  LRC’s  Final 
Plan,  but  more  splits  than  the  Holt alternate  plan.    Questioned  about  this  fact  at  oral 
argument, counsel for the Costa appellants explained that the purpose behind the Costa
plan was not to suggest the best of all plans, but to show that the core of the Final Plan 
could  be  achieved  with  far  less  violence  to  the  integrity  of  political  subdivisions.  
Transcript of Oral Argument, 1/23/12, at 65-66.  This point tracks the nuanced approach 
of the Holt appellants.

19

20

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an  order  remanding  the  plan  to  the  commission  and  directing  the  commission  to 

reapportion the Commonwealth in a manner not inconsistent with such order.”  Id. On 

its face, the Constitution does not dictate any form of deference to the LRC, it does not 

establish  any  special  presumption  that  the LRC’s  work  product  is  constitutional,  and  it

also places no qualifiers on this Court’s scope of review.  Absent some other constraint

-- and  we  will  address  the  LRC’s  decisional  law  argument  below  -- this  Court  would 

logically apply the scope of review generally applicable in similar matters.

In  this  case,  the  Holt and  Costa alternate  plans  were  presented  to  the  LRC,  in 

part  as  proof  that  the  LRC’s  plan  was  unconstitutional  in  that  it  created  divisions  of 

political subdivisions that were not “absolutely necessary.”

In the ordinary case, there 

would be no reason in law or logic why the Court would not be permitted to look at such 

material in discharging its constitutional duty to pass upon an appeal.

Indeed,  legal  challenges  in  general,  and  appellate  challenges  in  particular, 

commonly  involve  an  offering  of  alternatives.    It  is  not  effective  advocacy  to  simply 

declare that a trial judge’s ruling was erroneous; the good advocate addresses what the 

judge  should  have  done  instead.    Take,  for  example,  a  trial  level  challenge  to  a  jury 

instruction.  An objection comprised of “Judge, you are wrong,” gets a litigant nowhere; 

the  essence  of  the  advocate’s  function  is  to  go  farther and  explain  how  the  charge 

should  read  -- i.e.,  what  was the  better  alternative. The  point  is  obvious  and  hardly 

requires elaboration.

The LRC nevertheless repeatedly states as fact that the majority opinion in In re 

1981 Plan “specifically” rejected the proposition, forwarded in Justice Nix’s dissent, that 

alternate plans can be relevant proof that a Final Plan is unconstitutional.  This is not so, 

which no doubt explains the LRC’s failure to cite a point where, in the majority opinion, 

the “specific rejection” occurred.  Indeed, the majority opinion by Mr. Justice (later Chief 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 31

Justice) Roberts never once mentions Justice Nix or his dissent, much less the dissent’s 

point that easily produced alternative plans may prove the constitutional invalidity of the 

selected plan.  The majority never once said that alternative plans are irrelevant, cannot 

be considered, and are beyond the proper scope of review.  

Rather, the Court in In re 1981 Plan actually said the following.  At the outset of 

the  opinion,  we adverted  to  the  decisional  law  of  the  U.S.  Supreme  Court  concerning 

the Equal Protection Clause of the Fourteenth Amendment.  In discussing that federal 

decisional  law,  we  noted  that  the  Supreme  Court  had  rejected  an  equal  protection 

challenge  that  was  bottomed  on  a  claim  that  a  reapportionment  plan  should  be 

invalidated  “merely  because  the  alternative  plan  proposed  by  the  litigant  is  a  ‘better’ 

one.”    442  A.2d  at 664  (discussing  Gaffney  v.  Cummings,  412  U.S.  735  (1973)).   We 

then quoted Gaffney, as follows:   

And  what  is  to  happen  to  the  Master’s  plan  if  a  resourceful 
mind hits upon a plan better than the Master’s by a fraction 
of  a  percentage  point?  Involvement like  this  must  end  at 
some  point,  but  that  point  constantly  recedes  if  those  who 
litigate  need  only  produce  a  plan  that  is  marginally  ‘better’ 
when  measured  against  a  rigid  and  unyielding  population-
equality standard.

The point is, that such involvements should never begin. We 
have repeatedly recognized that state reapportionment is the 
task  of  local  legislatures  or  of  those  organs  of  state 
government selected to perform it.

Id. at  664-65  (quoting  Gaffney,  412  U.S.  at 750-51).    Notably,  in  Gaffney,  the  U.S. 

Supreme Court was setting out its command for the role that federal courts should take 

in reviewing federal law challenges to state redistricting plans.  The Gaffney Court was 

not,  and  could  not,  speak  to  the  review  conducted  by state  courts  facing  hybrid 

challenges  sounding  under  both 

federal  equal  protection  and  additional  state 

constitutional mandates.  

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Immediately  after  our  quotation  from  Gaffney,  respecting  equal  protection,  we 

stated  that:  “Thus,  to  prevail  in  their  challenge  to  the  final  reapportionment  plan, 

appellants have the burden of establishing not, as some of the appellants have argued, 

that  there  exists  an  alternative  plan  which  is  ‘preferable’ or  ‘better,’ but  rather  that  the 

final  plan  filed  by the  Pennsylvania  [Legislative] Reapportionment  Commission  fails  to 

meet constitutional requirements.”  In re 1981 Plan, 442 A.2d at 665.  Although we did 

not explain ourselves further, it appears that we found that the core principle of Gaffney

respecting equal protection claims was persuasive in guiding our own, broader review of 

redistricting  plans.    We did  not,  however,  announce  that  the  Gaffney principle  altered

our scope of review, i.e., we did not state that the parties were forbidden to argue, and 

the  Court  was  forbidden  to  consider, alternate  plans  in  assessing  the  constitutional 

validity of the Final Plan.  All we stated was that the mere existence of a plan described 

as being “preferable” or “better” did not alone suffice to prove the unconstitutionality of 

the approved plan.  This observation implicates a standard of review, not the scope of 

review.  Cf. Perry v. Perez, 565 U.S. __, 2012 WL 162610, **3-5 (Jan. 20, 2012) (cases 

hold  only  that  district  court  may  not  adopt  unprecleared  plan  as  its  own;  they  do  not 

prohibit use or discount value of such plan to aid drawing of interim map).  Under this 

principle, the Court rejected challenges that proposed marginal increases in population 

equality of districts, as well as piecemeal challenges to splits of subdivisions; it did not 

reject a claim, such as the global one forwarded by the Holt and Costa appellants here, 

that  alternate  plans  have  been  generated  which  prove  that  the  adopted  plan  is 

constitutionally infirm. 

The LRC’s theory that we adopted a scope of review prohibiting consideration of 

alternatives seems to proceed upon the assumption that points raised in a dissent are

necessarily and affirmatively “rejected” by the Court majority – even if the majority never 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 33

discussed or rebutted the point.  This is a strange theory indeed.  First of all, a Court’s 

silence  on  a  point  is  of  far  less  import  than  dicta,  and  it  is  settled  that  dicta has  no 

binding  effect.    See,  e.g.,  Albright  v.  Abington  Mem.  Hosp.,  696  A.2d  1159,  1167  n.8 

(Pa. 1997).

Second, a Court majority is not required to respond to every issue addressed by 

a  dissenting  opinion.    Indeed,  any  judge  of  sufficient  tenure  has  experienced  the 

phenomenon  of  the  ignored concurrence or  dissent.    A  Court  majority’s  silence  on  a 

point raised by a dissent cannot be read as a “specific” rejection of a particular position

taken  by  a  dissent,  and  it  certainly  cannot  be  so  read  where  the  dissent’s  point  is  not 

independently addressed in the majority opinion.  The better and logical interpretation of 

the majority’s silence in In re 1981 Plan, when that case is read against its facts and the 

specific  legal  challenges  the  majority  discussed,  is  that  the  majority  did  not  deem  the 

dissent’s  point  to  be  at  issue,  since  the  claim forwarded  there  was  not  that alternative 

plans showed that the final plan was contrary to law, but that some appellants alleged 

that they had “preferable” or “better” plans.

In short, neither the Court’s opinion nor Justice Nix’s dissent in In re 1981 Plan

remotely supports the LRC’s contention that this Court has, in prior opinions, limited its 

scope of review to the four corners of the Final Plan.  Moreover, the notion is particularly 

unsustainable because the LRC itself does not abide by it.  Rather, the LRC repeatedly 

looks outside the four corners of its Final Plan to defend against the instant challenges; 

indeed,  a  core  position  of  the  LRC,  which  we  discuss  below,  is  that  this  Final  Plan  is 

lawful  because  it  stands  up  well  when  measured  against  prior  plans  which  survived 

discrete  constitutional  challenges.    In  arguing  that  other,  alternate  plans  are  relevant 

proof  of  the  infirmity  of  the  2011  Final  Plan,  the appellants  do  no  less than  the  LRC 

does.

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This Court is not required to “reverse [sic] four decades of precedent” as the LRC 

claims,  LRC  Brief at  30,  to  hold that  alternate  plans  may  help  to  prove  constitutional 

infirmity, because the LRC reads into our cases a restriction on the scope of review that 

does  not  exist and  is  contrary  to  settled  notions  of  litigation  and  judicial  review.    It 

necessarily  follows  that the  LRC  cannot  claim  justifiable  reliance  upon  a  truncated 

scope of review which arises from a misreading of prior decisional law.  We are also not 

persuaded  by  the  LRC’s  claim  that  its  existence  and  task  requires  that  we  deem 

alternative  plans  to  be  irrelevant  and  beyond  our  scope  of  review.    The  Constitution

confers upon aggrieved citizens a right of appeal, measured by substantive standards 

specified  in  the  charter.    Such  appeals  must  be  meaningful,  not  illusory.    The 

importance and difficulty of the LRC’s task -- a common burden in government -- does 

not  insulate  its  undertaking  from  the  normal  avenues  of  legal  challenge,  including 

arguments premised upon alternatives.  

Nor  does  our  holding  diminish  our  recognition  that  the  Constitution  placed  the 

task of devising a redistricting plan within the bailiwick of the partisan leadership of the 

legislative  branch, 

in 

recognition  of 

the  General  Assembly’s 

“expertise 

in 

reapportionment matters.”  In re 1981 Plan, 442 A.2d at 665.  But, equally true is that 

the same provision of the Constitution placed the task of resolving appeals alleging that 

the  LRC’s  Plan  is  “contrary  to  law”  within  the  bailiwick  of  the  judicial  branch,  in 

recognition of this Court’s expertise in these such matters.  The retention of legislative 

expertise  is  accomplished  by  the  fact  that  the  Constitution  prescribes  remand  to  the 

LRC  if  a  Final  Plan  is  found  to  be  contrary  to  law.      We,  therefore, reject  the  LRC’s 

foundational and pervasive argument that we have already adopted, or should adopt, a 

scope of review that limits our consideration to the four corners of the Final Plan.  Our 

scope  of  review  in  these  appeals  is  plenary,  subject  to  the  restriction, recognized  in 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 35

Albert, that a successful challenge must encompass the Final Plan as a whole, and the 

recognition  in  our  prior  cases  that  we  will  not consider  claims  that  were  not  raised 

before the LRC.  In re 1981 Plan, 442 A.2d at 666 n.7.  This entails consideration of all 

relevant evidence, and legal authority, that a Final Plan is contrary to law. 

2.

Standard of Review

On appeal from a Final Plan, the plan may be found to be unconstitutional only if 

the appellant establishes that it is “contrary to law.”  PA. CONST. art. II, § 17(d) (“If the 

appellant establishes that the final plan is contrary to law, the Supreme Court shall issue 

an  order  remanding  the  plan  to  the  commission.  .  .  .”).    The  primary  “law” at  issue 

consists of the constitutional imperatives set forth in Section 16.  PA. CONST. art. II, § 16

(number  of  districts;  compact  and  contiguous  territory;  districts  as  nearly  equal  in  size 

as  practicable;  no  divisions  of  county,  city,  incorporated  town,  borough,  township  or 

ward,  unless  absolutely  necessary).    The  appeals  sub  judice present  precisely  such 

challenges. The  proper  construction  of  constitutional  language  (or  statutory  language 

for that matter) is a question peculiarly suited to the judicial function.  The task involves 

purely  legal  questions,  framed  by  settled  rules  of  interpretation.    Such  issues  of  law 

typically are subject to de novo or plenary review, and indeed the parties agree that our 

review is non-deferential.  Generally, in conducting de novo review, this Court corrects

legal  errors  without  deference  to  the  judgment  of  the  tribunal,  agency,  or  other  entity 

whose  determination 

is  challenged,  as 

to 

the  constitutionality  of 

its  actions.  

Pennsylvania Tpk. Comm’n  v.  Commonwealth,  899  A.2d  1085,  1094  (Pa. 2006) 

(constitutional  challenge  poses  question  of  law; therefore,  review is  plenary  and  non-

deferential);  Pap’s  A.M.  v.  City  of  Erie,  812  A.2d  591,  611  (Pa. 2002)  (this  Court’s 

decision is  final  word  on  meaning  of  Pennsylvania  Constitution);  see also Hertz 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 36

Drivurself  Stations  v.  Siggins,  58  A.2d  464,  469  (Pa.  1948)  (“But,  equally  well  settled, 

federally, since Marbury v. Madison, 1 Cranch 137, 175-180, 2 L.Ed. 60 (1803), and for 

Pennsylvania  even  a  few  years  earlier,  is  the  rule  that  a  law  repugnant  to  the 

constitution is void and that it is not only the right but the duty of a court so to declare 

when  the  violation  unequivocally  appears.  See Respublica  v.  Duquet,  2  Yeates  493, 

501 (1799); cf. also Eakin v. Raub, 12 Serg. & Rawle 330, 339 (1825).”).

Notwithstanding its recognition that our standard of review ultimately is de novo, 

the LRC suggests, throughout its brief, that our review in fact is constrained both by the 

legislative nature of the LRC’s task and our prior precedent.  Respecting the first point, 

the  LRC  essentially  asks  that  we  review  the  constitutionality  of  the Final  Plan  in 

accordance with the standards applicable to acts of the General Assembly.  A statute, of 

course,

is  generally  entitled  to  a  strong  presumption  of  constitutionality.    The 

presumption “reflects on the part of the judiciary the respect due to the legislature as a 

co-equal branch of government.” Sch. Dists. of Deer Lakes & Allegheny Valley v. Kane, 

345 A.2d 658 (Pa. 1975).

However, as the Holt appellants note, the LRC is composed of four leaders of the 

General  Assembly,  and  is  not  the  General  Assembly itself.    The  Holt appellants  thus 

argue that the Final Plan is not entitled to the same presumption of constitutionality that 

is accorded to bills adopted by a majority of duly elected representatives to the General 

Assembly and signed by the Governor into law.  Appellants urge the Court to avoid an 

“unduly passive role” in reviewing the LRC’s Plan.  Holt Brief at 26-27 (quoting Albert, 

790 A.2d at 1000 (Saylor, J., concurring, joined by Castille and Eakin, JJ.)).  

We agree with the Holt appellants that a Final Plan approved by the LRC is not 

entitled to a presumption of constitutionality.  First of all, nothing in Article II, Section 17

requires  such  deference.    The  LRC’s  task  certainly  affects  the  Legislature,  and  the 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 37

essence of the task may be legislative in nature.21  But, the Chairman of the LRC is not 

required to be a member of the General Assembly; in point of fact, the Chairman of the 

2011  LRC  is  not  a  legislator;  and  none  of  the  current  Chairman’s  predecessors  were 

then-current members of the General Assembly.  In addition, the Final Plan, the LRC’s 

challenged product, is not an act of the General Assembly, i.e., it was not a bill subject 

to  legislative  disclosure  and  debate,  a  general  vote,  adoption  and  presentation  to  the 

Governor for approval, or passage by a super-majority if vetoed.  There is no basis for 

indulging  a  presumption  of  constitutionality  in  these  circumstances.  The  most  that  can

be  said  is  that  the  Final  Plan  enjoys  the  same  status  as any  action or  decision  where 

                                           
21

Notably, prior to the Constitution of 1968, the task of redistricting Pennsylvania’s 
legislative  districts  indeed  fell  to  the  General  Assembly  as  a  whole.    See Gormley, 
Legislative  Reapportionment,  at  4-7.    In  practice,  however,  that  body  often  failed  to 
discharge its responsibility; indeed, it had failed to conduct a successful redistricting in 
over  four  decades.    Some  of  this  inertia  may  be  attributed  to  partisan  deadlock,  but 
there  is  also  an  extent  to  which  it  simply  reflected  the  reality  that  redistricting  could 
mean  some  members  would  lose  their  seats.    Id. at  7-9,  11.    This  legislative  failure, 
combined with then-recent decisions of the U.S. Supreme Court newly interpreting the 
Equal  Protection  Clause  as  requiring  states  to  address  apportionment  concerns  along 
lines of population equality, and the recognition that courts were empowered to rule on 
the  1968  Pennsylvania  Constitutional 
led 
such  reapportionment  arrangements, 
Convention to adopt a new scheme.  The result was the creation of the LRC, comprised 
of  the  four  leaders  of  the  Pennsylvania  House  and  Senate  and  a  “neutral  chairman.”  
The decision to constitute that hybrid body, rather than enlisting the General Assembly 
itself,  was  a  deliberate  one.    “[T]he  [Reapportionment  Committee  of  the  Convention] 
avoided the creation of a purely political body.  The proposed commission represented 
a  compromise between  allowing  the  legislature  as  a  body  to  reapportion  itself  …,  and 
taking  the  process  entirely  out  of  the  hands  of  that  body  …  which  possessed  the 
greatest  expertise  for  this  task.    If  this  new  hybrid  commission failed  to  enact  a  lawful 
reapportionment  plan within  the  prescribed  time  limits,  the  ultimate  ‘tie–breaker’  would 
be the Pennsylvania Supreme Court, just as it had been in 1964-1966.”  Id. at 10-11.

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 38

the challenging party bears the burden; and here, the burden is upon appellants to show 

that the plan is contrary to law.22

Respecting the second point, the LRC states that it has viewed this Court’s prior 

decisions  passing  upon  redistricting  challenges  as  setting  guideposts  for  acceptable 

levels  of  population  deviation  and  political  subdivision  splits.    The  LRC  argues  that  its 

Final  Plan  should  be  measured  against  prior  plans  “approved”  by  this  Court.    In  the 

LRC’s  view,  a  Plan  that  measures  favorably  with  (i.e.,  one  that  does  not  drastically 

depart  from)  past  redistricting  plans  necessarily  must  be  approved.    The  LRC argues 

that allowing  a  redistricting  plan  to  be  proved “contrary  to  law” by  comparing  it  to 

proffered alternative plans invites an interminable search for the “better” or “best” plan, 

that  would 

“create  a 

jurisprudence  of  doubt  and 

render 

future 

[legislative 

reapportionment commissions] unable to rely on precedent [to] draft a reapportionment 

plan with any confidence in its constitutionality.”  LRC Brief at 32-33.  The LRC decries 

such  an  approach  as  leaving  redistricting  to  a  computer  rather  than  to  “the  duly-

appointed members of the [LRC].”  Id. at 31 n.16. 

The  Holt appellants respond  that  the  Final  Plan  is  reviewed  by  the  Court  to 

ensure  that  it  is  not  contrary  to  law  -- a  burden  upon  challengers  that,  in  appellants’ 

view, is not heavy.  According to appellants, if a Final Plan “ignores a legal mandate . . . 

without explanation and justification in the law,” the Plan is contrary to law.  Holt Brief at 

11.    The  Holt appellants  distinguish  our  prior  redistricting  cases  and  argue  that  “[t]his 

                                           
22

Our holding that the Final Plan is not entitled to a presumption of constitutionality 
does  nothing  to  diminish  the  LRC’s  overall  discretionary  authority  to  redistrict  the 
Commonwealth.  As we make clear infra, our decision in this case does not command 
the LRC  to  devise  particular  benchmarks  in  terms  of  the  number  of  subdivision  splits, 
the  extent  of  deviation  in  population  equality,  or  the  parameters  of  compact  and 
contiguous districts.  This paradigm recognizes the difficulty in the LRC’s task and still 
reposes considerable discretion in its judgment.

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 39

Court’s approval of prior reapportionment plans has no bearing on the present [appeal].”  

Id. at 25.  

Thus,  the  LRC  concludes  that our  de  novo review  is  to  be  constrained  by  the 

specifics of prior reapportionment plans “approved” by the Court.  In essence, the LRC 

understands our prior decisions as pre-approving the levels of population deviation and 

the  number  of  split  political  subdivisions  that  were  “approved”  in  prior  redistricting 

appeals.    In  contrast,  appellants  understand  the  governing  “law”  to  mean  applicable 

constitutional and statutory provisions and on-point decisional law, such as Albert.  We 

agree with appellants.  

The Constitution neither authorizes nor requires this Court to engage in its own 

de novo review of redistricting plans in order to assure that all constitutional commands 

have  been  satisfied.    Thus,  our  prior  “approvals”  of  plans  do  not  establish  that  those 

plans  survived  not  only  the  challenges  actually  made,  but  all  possible  challenges.  

Instead,  in  the  prior  redistricting  appeals,  this  Court  merely  passed  upon  the  specific 

challenges that were made.  We decided the issues presented to us.

It  is  significant  that

the  Constitution  does  not  always  require  this  Court’s 

imprimatur before  a  redistricting  plan  can  become  final:  if  “the  last  day  for  filing  an 

appeal has passed with no appeal taken,” the Final Plan automatically attains “the force 

of  law.”    PA. CONST.  art.  II,  §  17(e).    This  Court  has  a  role  if,  and  only  if,  a  citizen  or 

citizens file an appeal from the Final Plan. See PA. CONST. art. II, § 17(d)-(e).  Unlike 

some  other  states,23 Pennsylvania’s  redistricting  process  does  not  command  sua 

sponte judicial  review  by  the  Court  of  a  redistricting  plan,  although  it  certainly  could 

have done so.  
                                           
23

See,  e.g.,  COLO. CONST.  art.  V,  § 48(1)(e)  (after  reapportionment  commission 

finalizes its plan it shall submit it to Colorado Supreme Court for review). 

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In  short,  the  current  Final  Plan  is  not  insulated  from  attack  by  decisions  of  this 

Court finding prior redistricting plans constitutional, unless a materially indistinguishable

challenge was  raised and  rejected  in  those  decisions.24    See,  e.g.,  Commonwealth v. 

Garzone,  __ A.3d  __, 2012  WL  149334 at  *10  (Pa.  2012) (court’s  language  must  be 

read against legal question at issue and operative facts).  Our review of our precedent 

reveals that no decision of this Court has purported to establish, or “grandfather in,” any 

particular  maximum level  of  population  deviation; nor  has  any  decision  held  that  a 

certain  number  of  political  subdivision  splits  is  constitutional,  irrespective  of  the 

constitutional challenge being forwarded in challenging those splits. 

Indeed,  the Court  has  shied  away  from  such  broad  pronouncements,  which 

would  be  in  the  nature  of  obiter  dicta.    Thus,  in  In  re  1981  Plan,  in  addressing  the 

substantial equality of population challenge before the Court, the Court noted that it was 

not  the  judiciary’s  responsibility  to  decide  “the  precise  mathematical  formula  to  be 

applied in dividing the population of the state among legislative districts” and rejected as 

invalid  the  premise  that  any  “predetermined  percentage  deviation  [existed]  with  which 

any reapportionment plan [had to] comply.” 442 A.2d at 667.  The Court also expressed 

the  concern  that  setting  a  predetermined  population  equality  standard  “might  well 

interfere with the [redistricting c]ommission’s ability to achieve the goals of compactness 

and preservation of subdivision lines.”  Id. at 667-68.  

                                           
24

This is a bedrock rule of jurisprudence involving precedent and stare decisis, and 
it is not a difficult rule to apply.  For example, in Albert, we held that a reapportionment 
challenge could not succeed unless it addressed the Final Plan as a whole.  Absent a 
reconsideration  and  rejection  of  that  holding,  localized  challenges  simply  cannot 
succeed;  and,  indeed,  we  are  enforcing  the  restriction  and  declining  to  reconsider 
Albert.  See n.18, supra.  

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In  its  redistricting  jurisprudence,  this  Court  has  not  purported  to  set any 

immovable  “guideposts”  for  a  redistricting  commission  to meet  that  would  guarantee  a 

finding  of  constitutionality,  as  against  challenges  premised  upon  population  equality, 

subdivision  splits,  compactness,  or  contiguity.    The  LRC’s  reliance  on  prior  cases  as 

creating an  expectation  that  its  Final  Plan  would  be  found  constitutional,  is  untenable.  

The “guideposts” to which a redistricting commission is bound are the U.S. Constitution, 

the  Pennsylvania  Constitution,  and  this  Court’s relevant,  specific holdings.   We  do  not 

doubt that the LRC made a good faith effort to fit the population deviation and political

subdivision  splits  in  the  current  Final  Plan  within  the  factual  parameters  of the prior 

plans;  but  nothing  in  our  decisions  in  the  prior  cases,  and  nothing  in  bedrock 

jurisprudence, created an expectation that such an effort was “pre-approved.”  Instead, 

the polestar for the LRC remained, as always, the command of the people, conveyed in 

express terms in Article II, Section 16 of the Pennsylvania Constitution. 

B.

Burden of Proof 

The  parties’  dispute  regarding  the  burden  of  proof  is  relatively  diffuse  but 

nonetheless  important.    The  LRC’s  position  is  that  appellants  have  the  burden  to 

demonstrate  that  the  plan  is  contrary  to  law.    LRC Brief  at  15  (citing  In  re  1991  Plan, 

609 A.2d at 136).  The LRC notes that, unlike other state charters, our Constitution does 

not authorize  this  Court  to  automatically  review  a  redistricting  plan,  irrespective  of  any 

objections  or  challenges,  or  to  adopt  rules  for  the  production  and  presentation  of 

evidence  in  support of  the  plan.    See LRC Brief at  33-34 n.18  (comparing  PA. CONST. 

art. II, § 17(d) with COLO. CONST. art. V, § 47(2)).  Accordingly, in  the LRC’s view, the 

burden is not on the redistricting commission, as in those other jurisdictions, where the 

commission’s actions are more closely and automatically scrutinized.  Id.  

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Several appellants argue that the LRC either is or should be required to explain 

or justify aspects of the Final Plan.  Thus, the Holt appellants argue that the Final Plan 

violates  the  Constitution  “by  failing  to  offer  any  ‘specific  explanation  for  why  the 

constitutional prerequisites of compactness and respect for political subdivisions cannot 

be  accommodated  simultaneous  [sic]  with  the  maintenance  of  substantial  equality  of 

population  and  enforcement  of  voting  interests  of  protected  groups  in  the  manner 

prescribed by federal law.’”  Holt Brief at 24 (quoting Albert, 790 A.2d at 1000 (Saylor, 

J., concurring)).  Appellants in Costa suggest that the LRC should be required to “offer 

some  demonstration  of  ‘necessity’”  once  an  alternative  plan  is  offered  that  identifies 

unnecessary  subdivision  splits.    According  to  the  Costa appellants,  the  LRC  should 

have justified each division or eliminated such division from the Final Plan, rather than 

relying  on  generic assertions  that  respect  for  subdivision  boundaries  could  not  be 

accommodated.  Costa Brief at 32.  In a similar vein, but with a more direct approach, 

the  Schiffer appellants  ask  the Court  to  consider  alternate  plans  as  prima  facie proof 

that  a  particular  political  subdivision  split  was  not  absolutely  necessary;  the  burden 

would  then  shift  to  the  LRC  “to  show  cause  why  [the  Final  P]lan  was  absolutely 

necessary.”  Schiffer Brief at 10.  

On  this  point,  we  agree  with  the  LRC.    The  plain  language  of  the  Constitution 

requiring appellants to establish that the Final Plan is contrary to law does not leave the 

door open for a shift of the burden of production or persuasion to the LRC.  Moreover, 

the assignment of the burden of proof to the appellants is consistent with the rest of the 

Section  17  process,  including  the  provision  that  the  Final  Plan  shall  have  the  force  of 

law if no appeal is taken.  PA. CONST. art. II, § 17(e).  

The  LRC  may,  of  course,  respond  to  the  challengers’  allegations  in  the  briefing 

process,  offering  explanations  for  its  various  decisions,  as  it  has  done  in  some 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 43

instances here.  In addition, the LRC may want to consider a process in its development 

of a Final Plan where it provides explanations, or responds to objections; whether to do 

so,  however,  would  appear  to  be  a  matter  reposed  in  its  discretion.    But,  shifting  the 

burden of proof is unnecessary.  The burden is squarely on appellants, in accordance 

with  the  constitutional  mandate;  and  the  LRC  has  a  full  opportunity,  in  the  briefing 

process, to provide explanations.

V.

The Governing Law

In  the  Pennsylvania  redistricting  scheme,  the  LRC  has  a  constitutional  duty  to 

formulate a Final Plan that complies with law.  Considerable discretion is reposed in the 

LRC to accomplish this task, which requires a balancing of multiple mandates regarding 

decennial districting, derived from federal and state law, most of which are of organic, 

constitutional  magnitude.    The  central  difficulty  of  the  LRC’s  task  arises  not  only 

because  of  the  political  and  local  interests  that  are  affected  by  any  change  in  the 

existing  scheme,  but  also  because  accommodating  one  command  can  make 

accomplishing another command more difficult. 

The  operative  mandates  under  Article  II,  Section  16  are  to  devise  a  legislative 

map  of  fifty  senatorial  and  203  representative  districts,  compact  and  contiguous, as 

nearly  equal  in  population  “as  practicable,”  and  which  do  not  fragment  political 

subdivisions  unless  “absolutely  necessary.”    Although  all  of  these  commands  are  of 

Pennsylvania  constitutional  magnitude,  one  of  the  factors,  that  districts  be  “as  nearly 

equal in population as practicable,” also exists as an independent command of federal 

constitutional law, including decisional law which changes and evolves.  Commonwealth

ex  rel.  Specter  v.  Levin,  293  A.2d  15,  18  (Pa.  1972) (“Specter”) (citing  U.S. CONST. 

amend. XIV, § 1 (“No State shall . . . deny to any person within its jurisdiction the equal 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 44

protection  of  the  laws.”)).25    Below,  we  address  the  developments  in  federal  and  state 

decisional  law  that  govern,  and  complicate,  our  analysis  of  the  citizen  appeals  before 

the Court.  

A.

The Federal Overlay of Redistricting

Although  state  legislative  redistricting  is  primarily  a  question  of  state  law,  the 

federal  equal  protection  overlay  is  of  substantial  effect,  and  it  indeed  has  significantly 

affected our decisional law under Article II, Section 16.  Familiarity with the background 

and interplay is important to understanding the issues before us.

In Colegrove v. Green, 328 U.S. 549 (1946), three Illinois voters challenged the 

extant  Congressional  district  apportionment  in  that  state  as  invalid  under  federal 

apportionment  statutory  law  and  the  Equal  Protection  Clause  of  the  Fourteenth 

Amendment  of  the  U.S. Constitution.    The  appellants  argued  that  the  apportionment 

scheme  no  longer  provided  sufficient  representation  for  urban  areas  where  population 

had expanded significantly during the course of the twentieth century, while rural areas 

that had lost population retained representative power that increasingly outstripped their 

declining populations.  The High Court declined to engage itself, finding “this issue to be 

of a peculiarly political nature and therefore not meet for judicial determination. . . .  It is 

                                           
25

Other mandates, not relevant to our disposition here, but important to the LRC’s 
task, are the Fifteenth Amendment and the Voting Rights Act of 1965.  See U.S. CONST. 
amend. XV, § 1 (“The right of citizens of the United States to vote shall not be denied or 
abridged  by  the  United  States  or  by  any  State  on  account  of  race,  color,  or  previous 
condition  of  servitude.”);  42  U.S.C.  §  1973  (“No  voting  qualification  or  prerequisite  to 
voting or standard, practice, or procedure shall be imposed or applied by any State or 
political subdivision in a manner which results in a denial or abridgement of the right of 
any citizen of the United States to vote on account of race or color, or in contravention 
of  the  guarantees  set  forth  in  section  1973b(f)(2)  of  this  title [relating  to  members  of 
language minority group] . . . .”).

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 45

hostile to a democratic system to involve the judiciary in the politics of the people.”  Id.

at 552-54.  

Concurring  in  the  Colegrove result,  Justice  Rutledge  wrote:  “There  is  not,  and 

could not be except abstractly, a right of absolute equality in voting.  At best there could 

be  only  a  rough  approximation.”    Id. at  566  (Rutledge,  J.,  concurring).    In  dissent, 

Justice  Black,  joined  by  Justices  Douglas  and  Murphy,  pointed  out  that  the  Illinois 

districting  scheme  at  issue  had  been  established  in  1901  and  included  Congressional 

districts  ranging  in  population  from  roughly  100,000  to  900,000;  but  the  legislative 

authorities in the state benefitted from the scheme and therefore ensured perpetuation 

of  inequitable  apportionment.    The  dissent  viewed  the  facts  presented  as  “a  wholly 

indefensible discrimination” forbidden by the Equal Protection Clause, which the dissent 

would have found to be the basis of a cognizable cause of action.  Id. at 566-74 (Black, 

J., dissenting).

In  1960,  the  High  Court  decided  Gomillion  v.  Lightfoot,  364  U.S.  339  (1960),  a 

case primarily involving the right to vote secured by the Fifteenth Amendment. Writing 

for  a  unanimous  Court,  Justice  Frankfurter  rejected  the  position  of  city  and  county 

authorities  that  claims  of  blatant  racially  discriminatory  redistricting  in  Tuskegee, 

Alabama, fell within the discretionary power of local government.  Although recognizing 

that  political  power  was  at  issue,  the  Court  held  that  when  “the  inescapable  human 

effect of this essay in geometry and geography is to despoil [citizens] of their theretofore 

enjoyed voting rights,” the matter entered the constitutional sphere and could be subject 

to judicial disposition.  Id. at 347-48.  Later, in 1962, Colegrove was largely negated in 

the landmark decision in Baker v. Carr, 369 U.S. 186 (1962), where the Court held that 

allegations that a state apportionment action deprived voters of equal protection of the 

laws in violation of the Fourteenth Amendment were justiciable and therefore within the 

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sphere of  judicial engagement.   What followed  was  as  new  and dynamic  in  the  voting 

rights  sphere  as  was  the  Warren  Court’s  contemporaneous  revolution  of  criminal 

procedure throughout the land.26  This new jurisprudence interpreted and gave concrete 

meaning to the Equal Protection Clause, and effectively changed the elective systems 

of virtually all of the states, as well as the U.S. House of Representatives.  See Butcher 

v. Bloom, 216 A.2d 457, 460-63 (Pa. 1966) (Butcher II) (Bell, C.J., concurring).   

Shortly  after  Baker  v.  Carr,  the  Court  developed  the  concepts  of  “one  person, 

one  vote”  and  the  “equal  population  principle.”    The  language  first  arose  in  Gray  v. 

Sanders, 372 U.S. 368 (1963), where the Court disapproved Georgia’s use of a “county 

unit system” to count votes in primary elections for certain statewide offices.  The Court 

found that Georgia’s weighting of each county’s votes equally, regardless of population 

differential, violated equal protection, memorably noting that: “The conception of political 

equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the 

Fifteenth,  Seventeenth,  and  Nineteenth  Amendments,  can  mean  only  one  thing  – one 

person,  one  vote.”    Id. at  381.    In Wesberry  v.  Sanders,  376  U.S. 1  (1964),  the  Court 

considered  the  constitutionality  of  Georgia’s  apportionment  scheme  for  federal 

Congressional  districts,  which  resulted  in  one  district  of  less  than  300,000  in  total 

population, and another district with more than 800,000 in total population.  The Court 

concluded  that  Georgia’s scheme  unconstitutionally  discriminated  against  voters  in 

more  densely  populated  districts,  noting  that:  “While  it  may  not  be  possible  to  draw 

congressional  districts  with  mathematical  precision,  that  is  no  excuse  for  ignoring  our 

Constitution's  plain  objective  of  making  equal  representation  for  equal  numbers  of 

                                           
26

See,  e.g.,  Benton  v.  Maryland,  395  U.S.  784  (1969);  Miranda  v.  Arizona,  384 
U.S.  436  (1966);  Gideon  v. Wainwright,  372  U.S. 335  (1963);  Mapp  v.  Ohio,  367  U.S. 
643 (1961).

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 47

people  the  fundamental  goal  for  the  House  of  Representatives.  That  is  the  high 

standard of justice and common sense which the Founders set for us.”  Id. at 18.

Gray was not an apportionment case, however, and Wesberry addressed federal 

Congressional districting issues.  The two concepts of “one person, one vote” and the 

“equal  population  principle”  became  woven 

together 

in 

the  state 

legislature 

apportionment context in the Court’s landmark decision in Reynolds v. Sims, 377 U.S. 

533  (1964).    In  Reynolds,  the  Court  addressed  an  equal  protection  challenge  to 

proposed  plans  for  reapportionment  of  both  houses  of  the  Alabama  Legislature.    The 

facts  in  Reynolds revealed  that  due  to  decades  of  non-reapportionment,  for  example, 

rural  counties  having  as  low  as  13,462  in  total  population  retained  two  seats  in  the 

Alabama House, but Mobile County, which includes the City of Mobile and had a total 

population exceeding 300,000, was allotted only three  seats.  The federal district court 

concluded  that  the  scheme  in  Alabama  led  to  disparities  in  which  votes  in  less-

populated  rural  senatorial  districts  were  effectively  “worth”  fifteen  to  twenty  times  as 

much as votes cast in more densely populated and rapidly urbanizing districts.  In an 8-

1  opinion  by  Chief  Justice  Warren,  the  Court  held:    “Population  is,  of  necessity,  the 

starting  point  for  consideration  and  the  controlling  criterion  for  judgment  in  legislative 

apportionment controversies. . . .  The Equal Protection Clause demands no less than 

substantially equal state legislative representation for all citizens . . . .”  Id. at 567-68.

Having  so  concluded,  the  Court  held  that,  to  ensure  the  right  of  voters  to  have 

their votes “weighted equally,” each house of a state legislature must be apportioned on 

what the Court termed “a population basis”: “[T]he Equal Protection Clause requires that 

a State make an honest and good faith effort to construct districts, in both houses of its 

legislature,  as  nearly  of  equal  population  as  is  practicable.”  377  U.S.  at  577.    While 

recognizing that absolute or exact equality of population would be impossible, the Court 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 48

expressed  that  apportionment  schemes  must  still  be  based  “substantially”  on  the 

principle of population equality, which was not to be “diluted in any significant way” by a 

given plan.  Id. at 578.

But, the Reynolds Court recognized that the task was not so simple.  Thus, the 

Court  continued  that,  within  limits,  a State’s desire  to  maintain  the  integrity  of  various 

political  subdivisions and to provide  for  compact  districts  of  contiguous  territory  is  a 

legitimate  and  constitutionally  valid  countervailing  interest.    The  Court  noted  that, 

“[i]ndiscriminate  districting,  without  any  regard  for  political  subdivision  or  natural  or 

historical  boundary  lines,  may  be  little  more  than  an  open  invitation  to  partisan 

gerrymandering.”  Id. at 578-79.  To allow for achievement of legitimate goals such as 

subdivision  integrity  in  apportioning  state  legislative  districts,  the  Court  held  that  some 

deviations  from  the  equal  population  principle  may  be  permissible  under  federal  law.  

Nevertheless,  “the  overriding  objective  [in  redistricting]  must  be  substantial  equality  of 

population among the various districts, so that the vote of any citizen is approximately 

equal in weight to that of any other citizen in the State.” Id. at 579.  The Court continued 

that,  if

the  “result” of  a  “clearly  rational  state  policy  of  according  some  legislative 

representation  to  political  subdivisions”  is  to  submerge  population  as  the  controlling 

consideration,  “then  the  right  of  all  of  the  State’s  citizens  to  cast  an  effective  and 

adequately  weighted  vote  would  be  unconstitutionally  impaired.”    Id. at  581;  see also

Lucas v. Forty-Fourth Gen. Assembly of Colorado, 377 U.S. 713 (1964) (striking down 

state  legislative  scheme  for  failing to  provide  adequate  justification  for  substantial 

disparities  from  population-based  representation  in  allocation  of  Senate  seats  to 

disfavored populous areas).

Again,  however, 

the 

jurisprudence,  which  evolved 

through  case-specific 

challenges, was dynamic.  Not long after Reynolds, the Court began to express a less 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 49

restrictive  approach  to  the  population  equality  principle  when  certain  countervailing 

circumstances  were  presented.    Thus,  in  Abate  v.  Mundt,  403  U.S.  182  (1971),  the 

Court  considered  a  plan  to  reapportion  Rockland  County  in  New  York  State.    When 

compared  with  ideal  population equality  for each of  the five  districts  within  the  county, 

the total deviation amounted to 11.9%.  Writing for the Court, Justice Marshall reiterated 

that population equality remained crucial, but opined that “the particular circumstances 

and needs of a local community as a whole may sometimes justify departures from strict 

equality.”    Id. at  185.    Later,  in  Mahan  v.  Howell,  410  U.S.  315  (1973),  the  Court 

reviewed and upheld a plan created by the Virginia state assembly to reapportion both 

of  its  legislative  houses  in  which  political  subdivisions  were  largely  left  intact,  but  the 

total  deviation  from  ideal  population  equality  was  16.4%  in  the  Virginia  House  of 

Delegates.    The  Court  recognized  that  “broader  latitude”  may  be  permissible  in  state 

apportionment  matters,  when  considerations  such  as 

the 

integrity  of  political 

subdivisions  are  at  issue:  “The  State  can  scarcely  be  condemned  for  simultaneously 

attempting  to  move  toward  smaller  districts  and  to  maintain  the  integrity  of  its  political 

subdivision lines.”  Id. at 322, 327.  Notably, in a footnote, the Mahan opinion described 

maintenance  of  subdivision  integrity  and  providing  for  population  equality  as  a  “dual 

goal” that the Virginia plan managed to satisfy on both counts.  Id. at 328 n.9, 329.

Finally, in Gaffney, supra, the Court considered a reapportionment plan based on 

1970 census data and prepared by an eight-member bipartisan commission and then a 

three-member board, both of which  were appointed by the leadership of Connecticut’s 

General Assembly.  The Connecticut state Constitution provided that within the bounds 

of  federal  constitutional  standards,  division  of  towns  (Connecticut’s  basic  unit  of  local 

government)  with  regard  to  state  house  districts  was not  permitted  except  in  narrow 

express  circumstances.    The  Court  critiqued  apportionment  approaches  that  would 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 50

slavishly labor under an “unrealistic overemphasis on raw population figures” such that 

relevant  and  legitimate  factors  and  interests  that  states  must  account  for  are 

submerged. 412 U.S. at 749.  The Court stressed that the work of state apportionment 

authorities  tasked  with  state  legislative  redistricting  need  not  be  rejected  solely  on  the 

basis of deviations from population equality: “We doubt that the Fourteenth Amendment 

requires  repeated  displacement  of  otherwise  appropriate  state  decisionmaking  in  the 

name  of  essentially  minor  deviations  from  perfect  census-population  equality  that  no 

one, with confidence, can say will deprive any person of fair and effective representation 

in his state legislature.”  Id.  

Subsequent  cases  handed  down  on  this  issue  by  the  High  Court  have  not 

established  any  rigid  standards  as  to  what  level  of  deviation  from  absolute  population 

equality violates the Equal Protection Clause; the analysis is fact specific.27  

Pennsylvania Law

B.

1.

Decisions

The Legal Landscape  before  the  U.S.  Supreme  Court’s  Equal  Protection 

Apportionment  has  been  part  of  Pennsylvania’s  constitutional  apparatus  as  far 

back as the first state Constitution following independence, which was adopted in 1776 

                                           
27

Compare Chapman  v.  Meier,  420  U.S.  1,  22  (1975)  (20%  variance  not  justified
by  absence  of  electorally  victimized  minorities,  sparseness  of  North  Dakota’s 
population,  division  of  state  caused  by  Missouri  River,  or  by  asserted  state  policy  of 
observing geographical boundaries and existing political subdivisions, especially when it 
appears  that  other,  less  statistically  offensive,  reapportionment  plans  already  devised 
are  feasible)  with Brown v.  Thomson,  462  U.S.  835  (1983)  (in  view  of  Wyoming’s 
constitutional policy of preserving county boundaries and in view of absence of any hint 
of  arbitrariness  or  discrimination,  reapportionment  which  permitted  county  with 
population  of  only  2,924  persons  to  have  its  own  representative,  though  ideal 
apportionment would have been 7,337 persons per representative, did not violate Equal 
Protection Clause).

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 51

during the American Revolution.  The prior, provincial arrangement had resulted in the 

longer-established  eastern  and  coastal  areas  of  Pennsylvania  enjoying  over-

representation  at  the  expense  of  the  less populated  but  rapidly  growing  western 

portions  of  the  state;  the  new  arrangement  recognized  and  rectified  this  imbalance  by 

adding  new  western  representatives  and  setting  forth  the  principle  that  apportionment 

be  derived  in  proportion  to  taxable inhabitants.    See generally Gormley, Legislative 

Reapportionment,  at  4-6.  Respecting  the  Pennsylvania  Senate,  as  early  as  the 

Constitution of 1790, and carried forward into the Constitutions of 1838 and 1874, was a 

requirement respecting the integrity of political subdivisions, at least at the County level: 

“neither  the  city  of  Philadelphia  nor  any  county  shall  be  divided  in  forming  a  district.”  

1790  PA. CONST. art. I,  §  7;  1838  PA. CONST. art. I,  §  7  (as  amended).    The  task  of 

reapportionment fell to the legislature.

The  1874  Pennsylvania  Constitution  shifted  the  measure  of  proportionality  from 

taxable inhabitants to total population, while the task of reapportionment remained in the 

hands  of 

the  General  Assembly,  which  was  newly 

required 

to  conduct  a 

reapportionment after each U.S. decennial census.  1874 PA. CONST. art. II § 18.  The 

section on apportionment of the Senate mandated that: “The State shall be divided into 

fifty  senatorial  districts  of  compact  and  contiguous  territory,  as  nearly  equal  in 

population as may be, and each district shall be entitled to elect one Senator.”  1874 PA.

CONST.  art. II,  §  16.    Section  16  also  required  respect  for  the  integrity  of  political 

subdivisions:  “No  ward,  borough  or  township  shall  be  divided  in  the  formation  of  a 

district.”    Id. The  provision respecting  apportionment  of  the  House  was  considerably 

more  complicated,  but  included  mandates  respecting  proportional  representation,  and 

compact  and  contiguous  territory.  1874  PA. CONST. art.

II,  §  17.28 Despite  the 

                                           
28

Article II, Section 17 provided:

(…continued)

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command  that  reapportionment  occur  every  ten  years,  in  fact,  reapportionment  in  the 

Commonwealth remained  sporadic  and,  over  the  decades,  lesser  populated  districts 

increasingly enjoyed representation far beyond their actual population numbers.

2.

This Court’s Response to Reynolds and the 1968 Constitutional Revisions

In  the  wake  of  the  then-recently  issued  Reynolds decision,  this  Court  first 

addressed state legislative apportionment in Butcher v. Bloom, 203 A.2d 556 (Pa. 1964) 

(“Butcher I”).  The unanimous decision by Justice Roberts noted the high stakes at the 

outset:

                                           
(continued…)

Representative districts.

for  every 

The  members  of  the  House  of  Representatives  shall  be 
apportioned among the several counties, on a ratio obtained 
by dividing the population of the State as ascertained by the 
most  recent  United  States  census  by  two  hundred.  Every 
county  containing  less  than  five  ratios  shall  have  one 
full  ratio,  and  an  additional 
representative 
representative  when  the  surplus  exceeds  half  a  ratio;  but 
each  county  shall  have  at  least  one  representative.  Every 
county  containing  five  ratios  or  more  shall  have  one 
representative  for  every  full  ratio.  Every  city  containing  a 
population  equal  to  a  ratio,  shall  elect  separately  its 
proportion  of  the  representatives  allotted  to  the  county  in 
which  it  is  located.  Every  city  entitled  to  more  than  four 
representatives,  and  every  county  having  more  than  one 
hundred  thousand  inhabitants  shall  be  divided  into  districts 
of compact and contiguous territory, each district to elect its 
proportion of representatives according to its population, but 
no district shall elect more than four representatives.

1874 PA CONST. art. II, § 17.

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the 

suit 

recent 

challenges 

importantly, 

Pennsylvania 
This 
Reapportionment Acts and the election of state senators and 
representatives 
it 
thereunder.  More 
challenges—in  light  of  recent  decisions  interpreting  the 
Constitution  of  the  United  States—the  validity  of  certain 
provisions  of 
the  Constitution  of  Pennsylvania  which 
establish  the  legislative  branch  of  government.    It  presents 
one  of  the  most  important  constitutional  questions  ever 
raised  in  the  history  of  this  Commonwealth.
It  involves  the 
basic rights of the citizens of Pennsylvania in the election of 
their state lawmakers.  Historically and logically, this Court is 
the  most  appropriate 
issues 
presented  and  to  fashion  suitable  remedies.  Proper  and 
continuing  respect  for  federal-state  judicial  relationships 
necessitates  consideration  by 
the  Supreme  Court  of 
Pennsylvania  of  the  relevant  state  statutes  and state 
constitutional provisions, subject, of course, to review by the 
Supreme Court of the United States.

to  determine 

forum 

the 

Id. at 559-60.  

We  then  found  that  the  General  Assembly’s  apportionment  legislation  of  1964 

contained  such  dramatic  deviations from  the  goal  of  substantially  equal  population,  as 

newly announced by the U.S. Supreme Court, among both Senate and House districts,

that the apportionment violated the Fourteenth Amendment.  Id. at 564, 567.  Part of the 

problem  with  the  1964  plan,  as  explained  by  this  Court,  was  the  vestigial  practice  of 

allocating  at  least  one  representative  to  each  county  in  the  state  regardless  of  the 

county’s population.  Relying on language in Reynolds, this Court held that the historic 

practice  could  no 

longer  continue  because 

it  so  clearly  resulted 

in  unequal 

representation  dynamics  in  both  state  houses:  “[A]ssignment  of  one  seat  to  each 

county,  regardless  of  population,  results  in  the  submergence  of  population  as  the 

controlling  consideration 

in  apportionment  and 

is  offensive 

to 

the  Fourteenth 

Amendment  to  the  Constitution  of  the  United  States.”    Id. at  566.  Notably,  while  we 

recognized  that  the  “population  principle”  set  forth  in  Reynolds was  “the  starting  point 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 54

and  controlling  criterion”  in  redistricting,  we  also  stressed  the  importance  of  other 

provisions in the 1874 Pennsylvania Constitution: 

It  is  our  view  that  Section  16,  when  construed  as  a  whole, 
demands  that  Senate  apportionment  legislation  respect 
county lines and lines of other political subdivisions (such as 
wards,  boroughs,  and  townships),  insofar  as  possible, 
without doing violence to the population principle enunciated 
by  the  first  sentence  of  Section  16  and  also  by  the 
Fourteenth Amendment to the Federal Constitution. . . .  The 
requirement  [in  Section  17,  respecting  the  House]  that 
apportionment should be among the several counties further 
signifies  an  intention  to  respect  county  lines  and  to  utilize 
counties  as  units  of  representation  to  the  maximum  extent 
consistent  with  the  equal-population  principle. 
Indeed, 
Section 17, when considered as a whole, demands that the 
boundaries  of  all  political  subdivisions  be  respected  when 
not in conflict with the overriding population principle.

Id. at 570-71.

Time constraints precluded the Butcher I Court from fashioning any remedy with 

regard  to  the  1964  plan.    The  Butcher  I Court’s  solution  was  to  direct  that  the  1964 

elections proceed under the infirm legislation, retain jurisdiction, and direct the General 

Assembly to correct course and devise a constitutionally valid plan for the 1966 election 

cycle  no  later  than  September  1,  1965.    Id. at  573.  The  General  Assembly  failed  to 

enact a plan, and so this Court found itself obliged to reapportion the Commonwealth on 

its own.  We did so by a 4-3 vote in Butcher II, in 1966.  See 216 A.2d 457 (per curiam).  

In  explaining  the plan,  the  per  curiam opinion  in  Butcher  II reiterated  the  balancing  of 

multiple  mandates  required  in  redistricting:  “Our  primary  concern  has  been  to  provide 

for substantial equality of population among legislative districts.  At the same time, we 

have  sought  to  maintain  the  integrity  of  political  subdivisions  and  to  create  compact 

districts of contiguous territory, insofar as these goals could be realized . . . .”  Id. at 459.  

Justice Roberts, the author of Butcher I, wrote in partial dissent, objecting to the House 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 55

plan on federal constitutional grounds, i.e., “based primarily on its failure to observe the 

equal population principle and other guidelines mandated by the controlling decisions of 

the [U.S.] Supreme Court … and set forth in our earlier opinion in this case.”  Id. at 474 

(Roberts, J., dissenting in part).  

Perhaps the most significant byproduct of the Butcher decisions is that they led 

to the Court’s experiencing firsthand the difficulties of reapportionment, and particularly 

in a legal landscape requiring adjustment to account for newly-developing federal law.

Following  the  difficulties  manifested  in  the  Butcher cases,  and  the  significant 

developments taking place in the U.S. Supreme Court, the question of reapportionment 

emerged  as  a  main  issue  in  Pennsylvania’s  1968  Constitutional  Convention;  the 

constitutional  provisions  on  reapportionment  were  significantly  revised;  and  the  new 

Constitution,  with  these  and  other  changes,  was approved  by  Pennsylvania  voters.  

Among  the  innovations  of  the  1968  Constitution  respecting  redistricting  was  a 

determination to remove the responsibility from the General Assembly as a whole, and 

to repose the authority in the LRC.  An entirely new Section 17 of Article II was adopted 

to  describe  the  composition,  function,  and  review  procedures  respecting  the  LRC.    In 

addition,  new  Section  16  constitutionalized  the  equal  protection  language  from 

Reynolds v. Sims, requiring that both Senate and House districts be “as nearly equal in 

population as practicable.”  And finally, Section 16 was amended to provide, as to both 

chambers  of  the  General  Assembly,  that,  “unless  absolutely  necessary,”  no  political 

subdivision was to be divided in forming a district, and the section made clear that the 

mandates of compactness and contiguity applied to both chambers. 

In  this  Court’s  first  redistricting  decision  after  the  adoption  of  the  new 

constitutional scheme, we described the new Commission as follows:

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 56

The  advantages  of  assignment  [of]  the  responsibility  for 
reapportioning  the  Legislature  to  such  a  commission  are 
quite  obvious,  and  several  other  states  have  recently 
adopted  or  considered  proposals  for  similar  commissions. 
The equal representation on the Commission provided to the 
majority and minority members of each house precludes the 
reapportionment  process  from  being  unfairly  dominated  by 
the  party  in  power  at  the  moment  of  apportionment.  In 
addition, the provision for a chairman who can act as a ‘tie-
breaker’ eliminates the possibility of a legislative deadlock on 
reapportionment  such  as  the  one  that  occurred  in  the 
Legislature  of  this  Commonwealth  in  1965  and  compelled 
this  Court  to  undertake  the  task  of  reapportionment.  At  the 
same  time  the  Legislature’s  expertise  in  reapportionment 
matters is essentially retained.

Specter, 293 A.2d at 17-18 (footnotes omitted).

As  to  the  other  provisions  under  the  new  scheme,  the  guiding  principles

respecting compactness, contiguity, and respect for the integrity of political subdivisions 

not  only  have  deep  roots  in  Pennsylvania  constitutional  law,  but,  as  noted  in  our 

discussion of federal law, also have been specifically recognized by the federal courts, 

beginning  with  Reynolds,  as  legitimate  interests  that  may  properly  be  considered  in 

redistricting  state  legislatures,  even  as  against  federal  equal  protection  challenges.  

Moreover, the commands represent important principles of representative government.  

As one of the pro se appellants herein has noted: “The requirements of contiguous and 

compact  districts  go  beyond  geographical  concern  and  also  embrace  the  concepts  of 

homogeneity of the district in order to facilitate the functioning of a representative form 

of government.” Baylor Brief at 9.  Baylor goes on to note the central and historical role 

of counties in Pennsylvania as building blocks that are not to be fractured.  Id. at 11-12.

It  is  true,  of  course,  that  redistricting  has  an inevitably  legislative,  and  therefore 

an inevitably political, element; but, the constitutional commands and restrictions on the 

process exist precisely as a brake on the most overt of potential excesses and abuse.  

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 57

Moreover, the restrictions recognize that communities indeed have shared interests for 

which they can more effectively advocate when they can act as a united body and when 

they  have  representatives  who  are  responsive  to  those  interests.    In  an  article 

concerning racial issues presented in redistricting cases, Dean Gormley has explained 

the importance of the restrictions, as follows:

in 

the 

that 

the  voting 

fundamental  districting  principles 

The 
[U.S. 
Supreme]  Court  has  deemed  legitimate  over  the  years 
include, but are not limited to, “compactness, contiguity, and 
respect  for  political  subdivisions  or  communities  defined  by 
actual shared interests . . . .”  The final principle mentioned is 
important 
particularly 
rights  context. 
Historically, 
reapportionment  bodies  have  considered 
“communities of interest” as one legitimate factor in drawing 
fair  and  politically  sensitive  districts.    A  redistricting  body 
need not draw rigid squares of equal population; in fact, few 
states  do  so.    Rather,  redistricting  bodies  traditionally  take 
into  account  a  host  of  intangible  communities,  seeking  to 
give  them,  where  practicable,  a  voice  in  the  government 
without  unduly  fracturing  that  voice.  Thus,  school  districts, 
religious  communities,  ethnic  communities,  geographic 
communities which share common bonds due to locations of 
rivers,  mountains  and  highways,  and  a  host  of  other 
interest”  are  routinely  considered  by 
“communities  of 
districting  bodies  in  order  to  construct  fair  and  effective 
maps.    Shared  racial  background,  along  with  political 
affiliation,  ethnic  identity,  religious  affiliation,  occupational 
fide 
background,  all  can  converge 
communities  of  interest,  to  the  extent  that  the  redistricting 
body  makes  an  honest  effort 
lines  around 
geographically compact groups in order to give them a voice 
in the governmental process.

to  create  bona 

to  draw 

As  a practical matter, it  is  rare  that a  reapportionment body 
is  able  (or  desires)  to  wholly  capture  a  “community  of 
interest” and draw lines around it, in a fashion that perfectly 
isolates  it  into  a  circle  or  square.  In  reality,  communities  of 
interest  are  elusive,  imprecise  entities.  Reapportionment 
bodies and lower courts must be cautious when it comes to 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 58

in 

this  concept,  particularly  where  it  serves  as  a  basis  for 
creating  legislative  districts  tied  to  race,  because  it  has  the 
potential for abuse. Specifically, it can be used as a ruse to 
improper  maximization  of  majority-minority 
engage 
districts where no real communities exist.  At the same time, 
states  have  historically  considered  a  broad  range  of  such 
imprecise  communities  of  interest  (many  of  which  are 
naturally  intertwined) in  exercising  their  sound  discretion. 
They  do  so  to  satisfy  constituents.  They  do  so  to  sweep 
together  a  host  of  generally  identifiable  interest  groups  that 
wish to be given a unified voice. This is perfectly healthy and 
permissible. 
the  state's 
prerogative,  when  it  comes  to  structuring  its  own  form  of 
to 
government.  Consequently,  when 
reapportionment  bodies  considering  race  in  this  permissive, 
discretionary  fashion,  the  courts  should  scrupulously  avoid 
meddling.

important  aspect  of 

comes 

is  an 

It 

it 

Gormley, Racial Mind-Games and Reapportionment, 4 U. Pa. J. Const. L. 735, 779-81 

(2002) (footnotes omitted).

3.

Reapportionment Decisions under the Current Constitutional Scheme 

The new constitutional redistricting scheme came into play two years later, after 

the 1970 census.  Eighteen appeals were filed from the 1971 LRC’s Final Plan, and this 

Court found the plan to be constitutional by a 4-3 vote, with Justice Roberts authoring 

the  majority  opinion,  a  mere  six  years  after  the  Court  itself  had  devised  a 

reapportionment plan.  Specter, 293 A.2d at 19.  Perhaps inevitably given the newness 

of  the  federal  (and  now  state  constitutional)  command  for  districts  as  nearly  equal  in 

size  as  practicable,  the  Specter majority  focused  primarily  on  population  divergences, 

as  measured  by  federal  law.29    We  began  by  noting  that  the  additional  objectives  for 

                                           
29

Although  the  Specter Court  noted  that  eighteen  appeals  were  filed,  it  never 
identified  the  issues  raised  by  the  appellants,  nor  did  it  engage  in  a  point-by-point 
discussion of the issues.  Rather, the Court addressed the plan as a whole, addressing 
the  federal  equal  population  issue  first  and  at  length,  and  then  provided  briefer 
(…continued)

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 59

reapportionment  plans  in  new  Article  II,  Section  16  (beyond  population  equality)  “were 

specifically  recognized,”  by  Reynolds,  as  “legitimate  considerations  which  can  justify 

some divergence from a strict population standard.”  Id. at 18. 

Nevertheless,  Specter emphasized  that  Reynolds still  counseled  that,  in  any 

reapportionment  scheme,  “the  overriding  objective  must  be  substantial  equality  of 

population.”  Id. (quoting Reynolds, 377 U.S. at 579).  Given that fact, we noted that “it 

is not constitutionally permissible to totally achieve Section 16’s objective of respecting 

the boundaries of political subdivisions.”  Id. (emphasis added).  Turning to the separate 

concern  of  compactness,  we  noted  that  “Section  16’s  desire  for  districts  that  are 

‘compact’ must  also  yield, if  need  be,  to  the  ‘overriding  objective  …  [of]  substantial 

equality  of  population.’” 

Id. at  19  (quoting Reynolds,  377  U.S.  at  579) (emphasis 

added).    The  Court  viewed  the  balancing  approach  required,  under  the  new 

constitutional provisions, to be the same as the balancing the Court itself had outlined in 

explaining the redistricting undertaken in Butcher II. 

Turning  to  the  plan  under  review,  the  Specter Court  noted  that,  since  our

decision in Butcher II, the U.S. Supreme Court had issued additional decisions striking 

down  reapportionment  plans  in  two  cases  involving  congressional  redistricting.  See

Kirkpatrick  v.  Preisler,  394  U.S.  526  (1969)  and  Wells  v.  Rockefeller,  394  U.S.  542 

(1969).  In those cases, the High Court had found that the states’ expressed desire to 

avoid  fragmenting  political  subdivisions  did  not  justify  departures  from  the  population 

                                           
(continued…)
discussions  of  the  remaining  constitutional  factors  of  integrity  of  political  subdivisions, 
contiguity,  and  compactness.    See also 293  A.2d  at  27  n.7  (Pomeroy,  J.,  dissenting, 
joined  by  Jones,  C.J.)  (“The  majority  opinion,  it  will  be  noted,  speaks  only  in  general 
terms, making no attempt to address itself to the particular exceptions and arguments of 
the various appellants.”).  

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 60

equality  requirement.    The  Specter Court  recognized  that  the  new  decisions  did  not 

involve  state  legislative  reapportionment.    We also  recognized  that  “Kirkpatrick’s 

rejection, in Congressional redistricting, of the maintenance of the boundaries of political 

subdivisions as a justification for deviations from absolute population equality, cannot be 

applied  in  full  force  to  state  legislative  reapportionment.” Specter,  293  A.2d  at  20.  

Nevertheless, we viewed the decisions as “indicat[ing]” that “deviations from equality of 

population  that  were  formerly  regarded  as  insubstantial  and  permissible  will  now  be 

regarded  as  substantial  and  impermissible, necessitating  a  closer  adherence  to  equity 

of population, even in the area of state legislative apportionment.”  Id.  Our analysis in 

this  regard  reflects  that,  no  matter how  static  the  governing  constitutional  language  is, 

the federal decisional law that must be accounted for is fluid and dynamic.

Ultimately,  the  Specter Court  upheld  the  1971  Final  Plan,  noting,  among  other 

things, that: “No decision of the United States Supreme Court or of this Court has ever 

invalidated  a  reapportionment  plan  with  population  deviations  as  minimal  as  those 

occasioned by the Commission’s plan, and we believe that the deviations clearly do not 

dilute the equal-population principle ‘in any significant way.’  We conclude therefore that 

the Commission’s plan fully achieves the constitutionally-mandated overriding objective 

of  substantial  equality  of  population.” 

Id. at  22.    We  also  concluded  that  the  Plan 

maintained sufficient integrity of political subdivisions.  We emphasized that “under any 

scheme  of  reapportionment  that  aims  at  substantial  equality  of  population,  a  certain 

amount of  subdivision  fragmentation  is  inevitable.”    Id. at  23.   We  then  reasoned that, 

“[w]hile it is true that the Commission’s plan provides for more political subdivision splits 

than  did  this  Court's  reapportionment  plan  of  1966,  this  increase  was  obviously 

necessitated  by  the  stricter  requirements  of  population  equality  that  are  now  in  order. 

Yet  despite  these  stricter  population  requirements,  the  number  of  subdivision  splits 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 61

called  for  by  the  Commission's  plan  is  still  quite  small  when  compared  to  the  2,566 

municipalities and  9,576  voting  precincts in  this  Commonwealth.”    Id. at  22-23 

(footnotes omitted).  

Finally,  the  Specter Court  concluded  that  the  1971  Final  Plan also  met  the 

constitutional elements of compactness and contiguity.

Id. at 23-24. On the question of 

compactness, we emphasized that:

lack 

compactness. 

[N]one  of  the  appellants  in  this  matter  offered  any  concrete 
or  objective  data  indicating  that  the  districts  established  by 
  The 
the  Commission's  plan 
Pennsylvania Constitution requires that those who challenge 
the Commission's plan have the burden of establishing that it 
is  “contrary  to  law.”  In  light  of  appellants'  failure  to  produce 
any objective data indicating that the districts established by 
the  Commission's  plan 
lack  compactness,  we  cannot 
conclude,  merely  on  the  basis  of  appellants'  unsupported
that  the  Commission's  plan  fails  for  lack  of 
assertions,
compactness.

Id. at 24.  

In  1981,

this  Court  approved  the  second  reapportionment  under  the  1968 

constitutional scheme, again by a 4-3 vote.  In re 1981 Plan, 442 A.2d at 663.  Justice 

Roberts, again writing for the majority, interpreted Specter as holding that “as a matter 

of  both  federal  and  state  law,  equality  of  population  must  be  the  controlling 

consideration in the apportionment of legislative seats.” Id. at 665 (citing Reynolds, 377 

U.S.  at  577).  Like  the  Specter Court,  the  In  re  1981  Plan Court  began  by  examining 

population  deviations,  and  concluded  that  the  1981  Final  Plan  passed  constitutional 

muster: “There is no doubt that this plan, which more nearly achieves the goal of equal 

population than did the 1971 reapportionment plan in Specter, satisfies equal protection 

requirements.”    Id. at  666.    Indeed,  “the  final  plan  achieves  an  equality  of  population 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 62

among  legislative  districts  closer  to  the  constitutional  ideal  of  ‘one  person,  one  vote’

than any previous reapportionment plan in the history of the Commonwealth.” Id.

The In re 1981 Plan Court then turned to the various specific challenges brought 

by the appellants.  First, the appellants claimed that the plan went too far in pursuing the 

constitutional  goal  of  “one  person,  one  vote,”  and  in  so  doing  failed  to  satisfy  the 

requirements  of  compactness  and  respect  for  the  integrity  of  political  subdivisions.  

Specifically,  the  appellants  argued  that  district  deviations  from compactness  and 

subdivision  boundaries  were  constitutionally  permissible  “only  if  those  deviations  are 

absolutely  necessary  to  survive  federal  equal  protection  analysis.” 

Id.    The  Court 

rejected the notion that these concerns were of equal value to population equality, and 

stated  that  “if  need  be,  concerns  for  compactness  and  adherence  to  political 

subdivision  lines  must  yield to  this  ‘overriding  objective’” of  “‘substantial  equality  of 

population.’” Id. (emphasis added).

The In re 1981 Plan Court next turned to the appellants’ argument relying on U.S. 

Supreme  Court  cases  decided  since  Specter, which  had  upheld  greater  district 

population deviations than in either the 1971 Final Plan or the 1981 Final Plan.  From 

those cases, the appellants argued that federally tolerated limits of substantial equality 

of population should define the Pennsylvania standard as well, which would allow more 

room to respect other constitutional imperatives, such as compactness and subdivision 

integrity.    We  rejected  the  argument,  noting  that  it:  “disregards  the  critical  fact  that 

adherence  to  a  percentage  deviation  that  is  at  the  outside  limits  of  constitutionality 

cannot be squared with the overriding constitutional objective of ‘substantial equality of 

population’ among  districts.  The  Pennsylvania  Constitution  plainly  states  that  districts 

shall  be  ‘as  nearly  equal  in  population  as  practicable.’ Thus,  the  clear  constitutional 

directive is that reapportionment shall strive to create districts as equal, not as unequal, 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 63

as  possible.”    Id. at  667.    Moreover,  we  noted,  there  is  no  “predetermined  percentage 

deviation from the ideal of ‘one person, one vote’ that satisfies the federal constitutional 

requirement of ‘substantial equality of population.’” Id.

Similarly, we rejected the theory that we should review the 1981 Final Plan and 

determine  whether  there  was  a  standard  of  population  deviation  greater  than  that 

adopted  by  the  Commission,  but  less  than  the  maximum  deviation  permitted  under 

federal law, “which would more closely achieve the goals of compactness and undivided 

political subdivisions.”  We noted that our task was “not to substitute a more ‘preferable’ 

plan for that of the Commission, but only to assure that constitutional requirements have 

been met.”  Id. (citation omitted).  

Turning to the particulars of the 1981 Plan, the Court began by stressing federal 

authority  that,  “‘in  determining  whether  a  good  faith  effort  to  establish  districts 

substantially  equal  in  population  has  been  made,  a  court  must  necessarily  consider  a 

State’s legislative apportionment scheme as a whole.’”

Id. at 668 (quoting Lucas, 377 

U.S.  at 735  n.27).  We  then  concluded  that  the  1981  Plan  “reflects  a  constitutionally 

permissible  judgment  on  the  part  of  the  Commission  that  the  deviations  from 

mathematical  compactness  and  political  subdivision  boundaries  contained  in  the  plan 

are  necessary  to  achieve  the  overriding  constitutional  goal  of  districts  ‘as  equal  in 

population  as  practicable.’”    Id.    We  elaborated  by  noting  the  inevitability  that  certain 

counties  and  municipalities  would  have  to  be  split;  the  relatively  small  number  of 

subdivision splits; and that none of the arguments by the appellants convinced the Court 

that  the  drawing  of  district  lines  was  based  on  impermissible  considerations.  

Disapproving  of  specific, 

localized  challenges, 

the  Court noted 

that 

“[m]ere 

dissatisfaction with the fact that certain political subdivisions have been divided or have 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 64

been included within particular legislative districts is not sufficient to invalidate the Final 

Reapportionment Plan as unconstitutional.”  Id.

By  the  time  of  this  Court’s  third  reapportionment  review,  in  1992,  our  focus  on 

population  equality  diminished  somewhat,  perhaps  because  of  our  decisional  law 

establishing  the  primacy  of  the  principle,  and  perhaps  also  because  of  advances  in 

useful  computer  technology.    In  his  account  of  the  1991  reapportionment,  Dean 

Gormley recounts that:  

The gradual preeminence of the one-person-one-vote principle in the 1971 
and  1981  reapportionments  would  be  turned  on  its  head  in  the 
reapportionment  of  1991.    By  this  time,  computers  and  high  technology 
would make equality in population a simple exercise, while new frontiers, 
particularly  the  Federal  Voting  Rights  Act  of  1965  [42  U.S.C.  §§  1971-
1974E)]  (as  it  had  been  amended  in  1982),  would  loom  up  with  historic 
prominence and threaten to topple reapportionment plans in Pennsylvania 
and across the nation.”

Gormley, Legislative Reapportionment, at 18.  Gormley recounts that, cognizant of the 

“super-emphasis” on population equality, the 1991 LRC was armed with tools that could 

achieve increasingly “ideal” districts, but still sought to remain flexible when faced with 

additional reapportionment factors, such as those set forth in Section 16, and the belief 

in  the  propriety  of  attempting  to  achieve  political  “fairness”  by  maintaining,  to  a 

practicable degree, the parties’ existing balance of power.  Id. at 26-27, 45-47.

In  a  decision  resolving  twenty-five  appeals,  this  Court  upheld  the  1991  Final 

Plan, without dissent, in an opinion by Mr. Chief Justice Nix.  In re 1991 Plan, 609 A.2d 

at  147.    The  Court  spent  little  time  dismissing  challenges,  similar  to  those  raised  ten 

years  before,  that  the  imperative  of  population  equality  “is  not  so  important  that  it 

warrants  the  division  of  counties  and  other  political  subdivisions.”    Id. at  138.    As  in 

1981, this argument was premised upon decisions of the U.S. Supreme Court, rendered 

after Reynolds, which had upheld state reapportionment plans with, by this point in time, 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 65

variances of up to 16%.  Id. at 138-39 & n.6 (citing, inter alia, Brown v. Thomson, 462 

U.S. 835 (1983) (plan with average deviation of 16%)).  From that federal authority, the 

appellants  argued  that  “these  cases  bind  this  Court  to  require  greater  population 

variances  to  protect  the  sanctity  of  political  subdivision  borders.”    Id. at  138.    We

disagreed:

Appellants  are  incorrect.  The  Supreme  Court  of  the  United 
States  held  [in  Reynolds]  that  “some  deviations  from  the 
equal  population  principle are constitutionally  permissible
with  respect  to  the  reapportionment  of  seats  in  a  state 
legislature.”    This  language  merely  allows  a  state  to 
apportion seats between districts that are not strictly equal in 
population; it does not mandate it. Our Constitution requires 
that the overriding objective of reapportionment is equality of 
population, and in 1972 and 1981 this Court approved plans 
in which the overriding objective  was equality of population.  
We see no reason now in 1992 to retreat from those earlier 
holdings.

609 A.2d at 138-39 (citation omitted and italics in original).30

As the text of Article II, Section 16, and our review of our prior reapportionment 

cases above makes clear, the In re 1991 Plan Court’s statement that “Our Constitution 

requires that the overriding objective of reapportionment is equality of population,” is not 

correct as a textual matter.  That “overriding objective,” as articulated in our 1972 and 

1981 decisions, derived from this Court’s interpretation of federal law, and in particular 

Reynolds,  and  our  effective  treatment  of  that  law  as  coterminous  with  Pennsylvania’s 

population  equality  requirement.    However,  the  In  re  1991  Plan Court  certainly  was 

correct  that  our  two  prior  decisions  had  established  the  primacy  of  equality  of 

                                           
30

The remainder of the challenges reviewed in In re 1991 Plan involved issues not 

pertinent here; the major challenges involved the Voting Rights Act.

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 66

population,  in  large  part  in  an  effort  to  ensure  that  Pennsylvania  plans  complied  with 

federal law.

In  2002,  this  Court,  in  a  unanimous  decision  by  Mr.  Chief  Justice  Zappala, 

approved  the  2001  Final  Plan,  based  upon  the  2000  census,  in  the  face  of  eleven 

appeals.  Albert, 790 A.2d at 991.  After surveying our prior reapportionment decisions, 

we noted that our review focused on an examination of “the final plan as a whole,” and 

we reiterated the teaching from In Re 1981 Plan that, “‘to prevail in their challenge to the 

final reapportionment plan, appellants have the burden of establishing not .... that there 

exists  an  alternative  plan  which  is  ‘preferable’  or  ‘better,’  but  rather  that  the  final  plan 

filed  by  the  Pennsylvania  Reapportionment  Commission  fails  to  meet  constitutional 

requirements.’”  790 A.2d at 995 (quoting from In re 1981 Plan, 442 A.2d at 665).

Turning to the specific claims raised, the Albert Court noted that the challengers 

asserted that the new districts were “not composed of compact and contiguous territory 

as  nearly  equal  in  population  as  practicable  because,  in  creating  the  plan,  political 

subdivisions  were  divided  where  it  was  not  absolutely  necessary.”    790  A.2d  at  995.  

We further noted, however, that the challengers had focused “primarily on the impact of 

the  plan  with  respect  to  their particular  political  subdivision,  rather  than  analyzing  the 

plan as a whole, as is required under a proper constitutional analysis. This will become 

apparent  as  the  individual  petitions  are  addressed.”    Id.    The  Court  then  reviewed  in 

some  detail  the  specific,  localized  complaints  of  the  various  appeals,  which  cited  to 

specific  subdivisions  and  districts  and 

forwarded  various  complaints 

including

compactness,  contiguity  and  unnecessary  subdivisions.    After  briefly  summarizing  the 

2001 LRC’s response, we again emphasized that the focus had to be on the plan as a 

whole and not on individual districts: “The Commission persuasively argues that none of 

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the appellants ha[s] met the heavy burden of establishing that the final plan, as a whole, 

is contrary to law.”  Id. at 996-98.

More  specifically,  the  Albert opinion  credited  the  2001  LRC’s  argument  that 

various  claims  failed  as  conclusory  or  vague;  and  that  the  2001  Final  Plan  “compares 

favorably” to prior plans the Court had approved in terms of population deviation.  Id. at 

998. 

  Respecting 

the  various  complaints  about  particular  districts  being  split 

unnecessarily,  the  Court  also  credited  the  2001  LRC’s  averments  that:  the  overriding 

objective  was  equality  of  population;  other  factors  causing  subdivision  splits  resulted 

from  Voting  Rights  Act  requirements  and  population  shifts;  the  2001  Plan  compared 

“favorably”  to  prior  plans  “found  to  be  constitutional  by  this  Court”;  and  the  number  of 

political  subdivisions  split  remained  relatively  small.    Id. at  999.    Finally,  we  rejected 

individual pleas premised upon particular subdivision splits, as follows:  “The appellants 

urge us to consider the ‘homogeneity’ and ‘shared interests’ of a community as guidelines. 

We  believe  that  these  concepts  are  too  elastic  and  amorphous,  however,  to  serve  as  a 

judicial standard for assessing the reapportionment process.  As the appellants’ arguments 

indicate,  these  concepts  often  reflect  nothing  more  than  continuation  of  the  pre-existing 

legislative districts.  Should community interests be fostered merely by residing in the same 

district,  we  have  no  reason  to  believe  that  the  current  reapportionment  of  the  legislative 

districts will not achieve this result with the passage of time.”  Id.

In  a  joining  concurrence,  Mr.  Justice  Saylor,  joined  by  Mr.  Justice  Eakin  and  this 

author,  although  agreeing  that  the  2001  Plan  was  consistent  with  our  prior  precedent, 

nevertheless expressed the following concern:

I  remain  circumspect  concerning  the  manner  in  which  state 
constitutional  requirements  of  compactness  and  integrity  of 
political  subdivisions  have  been  applied  by  the  Court  in  the 
prior decisions that are followed here, and I am receptive to 
the  concern  that  the  Court  should  not  occupy  an  unduly 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 68

for 

reapportioning 

I 
passive role in the vindication of these essential precepts.
write, therefore, to express my own position that facets of the 
Commission's  present  plan 
the 
Pennsylvania  Legislature  test  the  outer  limits  of  justifiable 
in 
deference,  at 
the  absence  of  some  specific 
explanation 
the  constitutional  prerequisites  of 
compactness and respect for political subdivisions cannot be 
the  maintenance  of 
accommodated  simultaneous  with 
substantial equality of population and enforcement of voting 
interests  of  protected  groups  in  the  manner  prescribed  by 
federal law.

least 
for  why 

Id. at 1000 (Saylor, J., concurring).

VI.

The Global Challenges: Holt and Costa

- A -

Our holding that the global challengers have proven that the 2011 Final Plan is 

contrary  to  law  follows  almost  inexorably  from  the  global  nature  of  their  challenge  –

global  in  the  sense that  it  challenges  the  entire  2011  Final  Plan  – and  our  holdings 

above concerning the scope and standard of review.  This is so because the LRC has 

premised  its  central  defense  against  these  global  challenges  upon  its  position  on  the 

judicial  review  points.    As  noted,  our  last  redistricting  decision,  in  Albert,  rejected  a 

number  of  appeals  posing  various  localized  challenges  to  the  2001  Final  Plan,  and 

emphasized,  consistently  with  our  prior  decisions,  that  a  successful  appellant  must 

challenge a final plan as a whole.  Albert, 790 A.2d at 995-96; accord In re 1981 Plan, 

442 A.2d at 667-68.  No challenger did so in Albert, and insofar as our prior Opinions in 

this area reflect, no challenger did so in the redistricting litigation in 1972, 1981, or 1992, 

either.  

The LRC drew one lesson from Albert, while the Holt and Costa appellants drew 

a  very  different  lesson.  The  LRC  emphasized  in  its  brief  and  at  oral  argument  that,  in 

developing the 2011 Final Plan, it heeded and attended to the concurrence’s concerns, 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 69

thus  addressing  complaints  (ultimately  unsuccessful  in  Albert)  arising  from  the  more 

objectionable aspects of the 2001 Plan.  (The specifics of this point are unimportant; the 

point is not disputed.)  The LRC also emphasized that, as to certain (but not all) other 

particulars (population deviation and the numbers of political subdivisions unaffected by 

splits), its Plan compared favorably to prior plans.  We do not doubt the accuracy of the 

LRC’s account of its endeavor, motivation, and results in this regard; nor do we doubt 

that  its  actions  would suffice  if  faced  with  the  same  sorts  of  localized challenges  that 

were pursued unsuccessfully in 2002, respecting compactness, contiguity, and curious 

subdivision splits. 

The  appellants  in  Holt and  Costa,  however,  recognizing  that  prior  redistricting 

challenges failed precisely because they were localized and piecemeal, attended to the 

Albert Court’s central rationale and holding, and its implicit warning to the next LRC, that 

different considerations, and results, might obtain if a Final Plan were to be challenged 

as a whole.  No doubt assisted by advances in computer technology that certainly would 

not  have  been  available  to  redistricting  challengers  in  1972  and  1981,  the  Holt and 

Costa appellants  offered  challenges  to  the  2011  Final  Plan  as  a  whole,  proffering 

alternative plans not in the hope of having them accepted as “better than” or “preferable

to”  the  Final  Plan,  but  as  evidence  that  the  Final  Plan  was  contrary  to  law.    By  this 

proffer, appellants attempted to show that the same basic considerations that the LRC 

says  powered  and  justified  its  decisions  to  split  political  subdivisions  could  easily  be 

accommodated  with  far  less  violence  to  the  integrity  of  political  subdivisions,  and  to  a 

lesser extent, to the command of compactness.  

In the past, this Court has dismissed redistricting objections which failed to offer 

“any  concrete  or  objective  data”  and  relied  instead  on  “conclusory”  allegations  and 

dictionary definitions to support claims of constitutional violations.  Specter, 293 A.2d at 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 70

24.  The Holt and Costa appellants have not made this error; they have produced, and 

they submitted to the LRC, detailed plans deriving from concrete data, data also used 

by  the  LRC,  to  support  their  assertions  that the  pervasive  political  subdivision  splits  in 

the  Final  Plan  were  not  “absolutely  necessary.”    Notably,  the  particulars  of  these 

alternative plans have not been materially contested by the LRC.31

For purposes of explication, in examining whether the 2011 Final Plan is contrary 

to law, we will focus primarily on the evidence represented by Holt’s alternative plan.32  

                                           
31

We  view  the  alternative,  global  plans  as  comprising  the  sort  of  concrete  and 
objective data envisioned in Specter.  The LRC argues that alternative plans should not 
be  considered evidence  by  this  Court  because  their  general  accuracy  is  questionable, 
given  that  the  challengers  do  not  benefit  from  the  extensive  and  knowledgeable 
technical,  administrative,  and  institutional  capabilities  which  safeguard  the  LRC’s 
process.  See LRC Brief at 31-32.  In addition, the LRC provides two examples in which 
counties are either not accounted for or are double-counted in the Holt alternative plan.  
At argument, however, counsel for the Holt appellants explained that the inaccuracies of 
which  the  LRC  complained  were  clerical  errors  in  transcription  from  the  original 
document composed by Ms. Holt, which in fact accounted for all subdivisions; and noted 
similar  errors  in  the  LRC’s  legal  description  of  the  Final  Plan.    See Transcript  of  Oral 
Argument, 1/23/12, at 20-21.  The LRC did not dispute the explanation.

Respecting the LRC’s legal argument, we note that the LRC did not dispute the 
factual allegations in the Holt petition for review, or allege fraud, impropriety, or material 
inaccuracy  in  its  response  to  the  petition. We  also  note  that,  given  its  access  to  the 
relevant  data  and  its  expertise,  the  LRC  is  certainly  capable  of  ascertaining  and 
formulating  fact-specific  claims  as  to  individual  plans,  and  could  have  done  so  here.  
And,  finally,  we  view  this  argument  – that  only  the  LRC’s  Plan  can  be  reliable  – as  a 
variation of its claim that alternatives simply cannot be considered.  Respectfully, we do 
not  believe  that  Article  II,  Section  16  intends  to  set  such  an  impossible  bar  for  citizen 
challengers. 

32

The  Holt appellants presented an alternative  plan to  the LRC  on  November  18, 
2011, which was then amended twice; all three plans were attached to the Holt Petition 
for  Review  as  exhibits.    In  their  brief,  the  Holt appellants focus  on the  latest  amended 
plan, to which we will confine our discussion.  

(…continued)

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This plan shows that a redistricting map could readily be fashioned which maintained a 

roughly equivalent level of population deviation – the LRC’s primary justification for the 

numerosity  of  the political  subdivisions  it  divided  -- as  the  Final  Plan,  while  employing 

significantly  fewer  political  subdivision  splits  with  respect  to  both  Chambers  of  the 

General Assembly.  The Holt appellants also highlighted that their alternative plan had 

deviations from  the  ideal  population for  both  the  House and  Senate  districts  that  were 

smaller than the deviations in the Final Plan.  Although appellants’ brief goes into great 

detail  comparing  their plan  to  the  Final  Plan,  the  most  convincing  point  is  the  raw 

number difference in subdivision splits.  In the House, the alternative plan splits seven 

fewer counties, 81 fewer municipalities, and 184 fewer  wards; in the Senate: the Holt

plan  splits seven  fewer  counties,  two  fewer  municipalities,  and  22  fewer  wards.

In

addition, with regard to political subdivisions which were split at least once, the Holt plan 

created: in the House: 39 fewer county fractures, 186 fewer municipality fractures, and 

228  fewer  ward  fractures;  and  in  the  Senate:  37  fewer  county  fractures,  six  fewer 

municipality fractures, and 50 fewer ward fractures, than the Final Plan.

In total, for the 

House, 184 fewer subdivisions were divided, and 453 fewer fractures were established; 

in  the  Senate,  31  fewer  subdivisions  were  split,  and  93  fewer  divisions  were 

established.  Holt Brief  at  17.  The  LRC  does  not  dispute  the  accuracy  of  this 

                                           
(continued…)

The Costa appellants also offered their alternative plan after the LRC issued its 
preliminary plan.  At oral argument, counsel for Costa explained that the Costa plan did 
not  seek  to  achieve  the  minimum  number  of  necessary  divisions,  but  instead  to  show 
that  the  number  of  split  municipalities  could  be  reduced  compared  with  the  LRC’s 
preliminary plan, even while maintaining similar electoral performance. 

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 72

accounting.33 

  The  Holt appellants  also  offered  specific  examples  of  political 

subdivisions with populations smaller than the ideal House or Senate district which were 

maintained  intact  in  the  alternative  plan  while  maintaining  appropriate  levels  of 

population deviation.  

The Holt appellants argue that the Final Plan is contrary to law because, as their 

alternate  plan  proves,  while  the  Final Plan  may  comply  with  governing  law  respecting 

population  equality,  the  Plan  flouted 

independent  and  coexisting  Pennsylvania 

constitutional  mandates  of  compactness  and  contiguity  of  legislative  districts,  and 

respect  for  political  subdivision  boundaries.34 Appellants  claim  that,  if  the  LRC  had 

prepared  a  plan  in  strict  compliance  with  Section  16,  including  the  requirement 

respecting population equality, a significant number of political subdivision splits would 

not  have  occurred,  because  they  could  not  have been  “absolutely  necessary.”    The 

alternative  plan,  appellants assert,  proves that  compliance  with  the  constitutional 

requirements of population equality, compactness, and contiguity does not and cannot 

justify the extent of the division of counties, municipalities, and wards in the Final Plan.  

Accordingly,  appellants  suggest  that  remand  is  appropriate  for  the  LRC  to  “make  ‘a 

                                           
33

We  have  intentionally  avoided  listing  the  specific  number  of  divisions  in  the 
alternative  plans  because  our  decision  does  not  purport  to  convey  in  absolute  terms 
what is an acceptable number of political subdivision splits.  

34

In the alternative, appellants claim that the LRC should have provided a “specific 
explanation”  for  why  the  constitutional  mandates  could  not  be  accommodated.    Holt
Brief  at  24  (citing  Albert,  790  A.2d  at  1000  (Saylor,  J.,  concurring)).    As  our  mandate 
reflects, we view appellants’ argument as already having established that the Final Plan 
was contrary to law.  The LRC has had a full opportunity to offer neutral explanations of 
what were proven to be vast numbers of unnecessary splits of political subdivisions, and 
failed to do so.  We see no point in a remand for a specific explanation, in addition to 
the ones proffered, under these circumstances.   

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second attempt at reapportionment’ that complies with the plain language of Section 16 

of Article [II] of the Pennsylvania Constitution.”  See Holt Brief at 16-20.35  

The  Holt plan  is  powerful  evidence  indeed.  The  LRC  answers  that  appellants 

failed to carry their burden of proof.  We cannot agree.

The  LRC  primarily  argues  that  alternative  plans  cannot  be  considered  because 

they  are  outside  this  Court’s  scope  of  review  or,  alternatively,  that  the particular  plans 

proffered as evidence are insufficient to prove that the Final Plan is contrary to law.  The 

LRC’s position rests upon assumptions about the scope and standard of review  which 

we have rejected in Part IV of this Opinion.  For example, we have rejected the LRC’s 

claim, premised upon a misapprehension of our precedent, that alternative plans offered 

as evidence that a Final Plan is contrary to law are “irrelevant.”  We recognize that our 

prior decisions have made clear that the LRC is not obliged to accept an alternative plan 

merely  because  it  appears  to  be,  or  is  offered  as,  “better”  than  or  “preferable”  to  the 

                                           
35

The Costa appellants add only that the constitutional mandate to respect political 
subdivision  boundaries  in  the  redistricting  process  is  unambiguous  and  should  not  be 
read out of Section 16.  The language “unless absolutely necessary,” according to these 
appellants,  should  be  read  as  a  command  that  the  LRC  “must  avoid  the  splits  of 
governmental units, if at all possible.”  Costa Brief at 29.  In all other respects, the Costa
arguments  are  similar  to  those  of  the  Holt appellants.    According  to  the  Costa
appellants:  “[u]nlike  in  past  reapportionment  challenges,  the  statewide  statistical  data 
that  Senator  Costa  presented  provides  conclusive  evidence  that  it  was  not  ‘absolutely 
necessary’  for  the  [LRC]  to  divide  multiple  subdivisions.    That  data  is  reflected  in  the 
[a]lternative [p]lan, which, in all relevant respects, is similar to the Final Plan except for 
its  reduction  in  the  number  of  divisions  of  political  subdivisions.”    Id. at  32-33.    The 
Costa appellants request remand and suggest that their alternative plan should serve as 
the starting point for the LRC in its second attempt at redistricting.  Id. at 34.  

We will not direct that the LRC begin its task on remand with the Costa plan, the 
Holt plan, or any particular plan.  We trust that the LRC will heed to the guidance in this 
Opinion with alacrity and fashion a plan giving full respect to the multiple commands in 
Article II, Section 16.

[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 74

LRC’s Plan.  See In re 1981 Plan, 442 A.2d at 667; see also Part IV, supra.  But, that is 

a very different point.  These appellants do not claim that the LRC was obliged to accept 

their  plans;  they  just  offer  those  plans  as  proof  that  the  LRC’s  Final  Plan  contained 

subdivision splits that were not absolutely necessary. 

The LRC  also  levels  an  individual  criticism  at  the  Holt plan,  complaining  that, 

although  this  alternative  achieves  greater  population  parity  overall,  in  some  specific 

districts, the population equality deviation is greater than under the Final Plan.36 Thus, 

the LRC requests that the Court dismiss these appeals because the 2011 Final Plan is 

superior to the 2001 Final Plan in terms of population equality deviation and the number 

of political subdivision splits.37  

To take the LRC’s latter point first, in our discussion of the standard of review, we 

have already addressed the notion that this Court’s “approval” of prior plans, as against 

certain  discrete  challenges,  acts  to  pre-approve  aspects  of  future  plans,  as  against 

distinct,  different  challenges.    Again,  we do  not  doubt  that  this  Final  Plan  is  an 

improvement over the 2001 Final Plan.  And, for all this Court knows, perhaps the 2001 

                                           
36

The  LRC  also  criticizes  specifics  of the  Costa plan,  on  grounds  that  it  achieves 
fewer  political  subdivision  splits  at  the  cost  of  increasing  the  population  deviation  to  a 
level  higher  than  the  Final  Plan,  and  higher  than  any  other  plan  since  1971.  
Furthermore,  the  LRC  reviews  each  political  subdivision  fracture  in  the  Final  Plan  of 
which the Costa appellants complain, and claims that each was either necessitated by 
the  “overriding”  population  equality  mandate  or  had  been  split  in  the  2001  Final  Plan 
and,  therefore,  was  “approved”  by  this  Court  in  Albert. We  answer  the  latter  point, 
respecting  supposed  prior  “approvals,”  in  text.    Respecting  the  population  deviation 
point, since our analysis above turns on Holt, we will confine our response to the LRC’s 
criticism of that plan.  

37

As a subsidiary point, the LRC argues that only the number of split subdivisions, 
and not the total number of fractures, is relevant to our constitutional inquiry.  We find 
no support in our prior decisions, and the LRC offers no developed or cogent argument, 
favoring this premise.  

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Plan  was  the  best  that  the  technology  then  available could  devise,  respecting 

“absolutely necessary” splits.  But, the 2001 Plan was not challenged as a whole, and 

like  every  other  plan  since  1971,  it  was  not  challenged  with  compelling,  objective, 

concrete  proof  that  a  large number  of  political  subdivision  splits  were  not  “absolutely 

necessary.”

Turning to the LRC’s complaint that the Holt plan increases population deviation 

in some specific districts, even though it achieves greater population parity overall, we 

fail  to  see  how  this  diminishes  the  power  of  the  Holt plan  as  proof  that  the  Final  Plan 

was contrary to law.  Our prior cases concerning population deviations have looked to 

overall  ranges;  indeed,  the  Holt plan,  in  this  regard,  seems  to  comport  better  with  the 

LRC’s primary focus upon population equality.

More  fundamentally,  we  recognize  that  this  Court’s  prior  decisions  emphasized 

equality  of  population  as  the  primary  directive  in  the  redistricting  efforts  of  the  LRC.  

That mandate is unique because it is dually commanded by our charter and the federal 

Equal  Protection  Clause  -- an  independent  force,  with  contours  that  may  change  with 

each  new  relevant  decision  from  the  U.S.  Supreme  Court.    Our  prior  decisions  have 

gone  so  far  as  to  recognize  that, “if  need  be,”  the  concerns  for  compactness  and 

adherence  to  political  subdivision  lines  must  yield  to  the  “overriding  objective” of 

“substantial equality of population.”  See In re 1981 Plan, 442 A.2d at 666; Specter, 293 

A.2d  at 18-19 (quoting  Reynolds,  377  U.S.  at  579).    We  have  also  stated  that  “if 

necessary, any political subdivision or subdivisions may be divided or combined in the 

formation  of  districts  where  the  population  principle cannot  otherwise  be  satisfied.”  

Specter, 293 A.2d at 25 (quoting Butcher I, 203 A.2d at 570-571).  But, all of this Court’s 

cases, going back to Butcher I, have specifically recognized that population equality is 

not  the  only command  in  redistricting.    Every  one  of  the  cases  has  an  important 

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qualifier,  such  as  “if  need  be,”  “if  necessary,”  if  the  population  principle  “cannot 

otherwise”  be  satisfied.    We  have  always  recognized the  independent  vitality  of  the 

requirements  of  contiguity,  compactness,  and  the  integrity  of  political  subdivisions.  

Moreover,  none  of  the  cases  identify  a  population  variation  that  must  be  achieved  in 

redistricting;  just  as  we  did  not  require  the  LRC  to  expand  population  deviation  to  the 

outer limits that might be approved under federal law, In re 1981 Plan, 442 A.2d at 667, 

we  also  did  not  say that  compression  of  population  equality  to  the  narrowest  point  of 

difference  is  required,  at  the  expense  of  absolute,  constitutional  commands  of 

compactness,  contiguity  and  integrity  of  political  subdivisions. The  “practicable” 

modifier  in  the  “as  nearly  equal  in  population  as  practicable”  language  necessarily 

leaves room for the operation of the other constitutional commands.  

The  Holt alternative  plan  avoided  a  highly  significant  percentage  of  political 

subdivision splits and fractures while maintaining a lower average population deviation 

from  the  ideal  than  the  Final  Plan.    A  concrete  showing  has  been  made  that  political 

subdivisions were split, even where the population was smaller than the ideal legislative 

district  and  a  division  was  avoidable;  and  that  the  number  of  fractures  across  the 

Commonwealth was considerably higher in the Final Plan than the Holt plan proved was 

easily achievable.    This  powerful  evidence,  challenging  the  Final  Plan  as  a  whole, 

suffices to show that the Final Plan is contrary to law.  While the LRC was not, and is 

not, obliged to adopt any of the alternate plans presented to it, it must devise a new plan

upon remand. 

Much focus, in the briefs, and at argument, has been placed on the level of proof 

required to show that a Final Plan is contrary to law, the fear being that “someone can 

always come up with a better plan.”  We need not determine a minimum level of proof, 

deriving  from  such  an  “alternate”  plan  (or  other  concrete  source),  that  would  be 

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“enough”  to  show  that  a  Final  Plan  made  excessive  political  subdivision  splits  without 

absolute necessity.  We realize that the task is not so simple as the production of a plan 

with “better” numbers; thus, we reject the invitation to set firm parameters.  It is enough 

that the Holt plan here overwhelmingly shows that the 2011 Final Plan made subdivision 

splits  that  were  not  absolutely  necessary,  and  certainly  could  not  be  justified  on  the 

population equality or other grounds proffered.  Indeed, the proof is strong enough that

we  view  it  as  inconceivable, to  borrow  from  one  of  the  U.S.  Supreme  Court’s  equal 

protection decisions, that the magnitude of the subdivision splits here was unavoidable.  

See Kirkpatrick, 394 U.S. at 532 (“[I]t is simply inconceivable that population disparities 

of the magnitude found in the Missouri plan were unavoidable.”).  

We  likewise  realize  that  the  absence  of  certainty  is  a  frustration for  the  LRC,  a 

concern  ably  articulated  by  counsel.    But,  that  is  often  the  case  when  constitutional 

principles  are  at  work,  and  particularly  when  competing  constitutional  principles  apply.  

This  is  reflected  in  the  U.S.  Supreme  Court’s  own  fact-specific  decisional  law  in  the 

equal protection cases and the Voting Rights Act cases, all factors with which the LRC 

must  contend.    In  Reynolds,  the  High  Court  spoke  of  the  Equal  Protection  Clause 

requiring “that a State make an honest and good faith effort to construct districts, in both 

houses  of  its  legislature,  as  nearly  of  equal  population  as  is  practicable.”  377  U.S.  at 

577.   We  trust,  too,  in  the  good faith  of  the LRC  to fashion  a  plan,  upon  remand, that 

comports with all of the requirements of Article II, Section 16.

- B -

Although  we  are  satisfied  that  the  Holt appellants  have  carried  their  burden  of 

proving  that  the  2011  Final  Plan  is  contrary  to  law  premised  on  the  existence  of  a 

significant number of political subdivision splits that were not absolutely necessary, like 

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the  Albert concurrence,  we  have  additional  concerns,  and  particularly  respecting 

compactness,  with  this  Final  Plan.    These  issues  may  be  a  product  of  the  excessive 

subdivision  splits,  and  since  we  are  remanding  the  matter,  we  offer  the  following 

commentary.

The  obvious  “compactness”  issues  with  three  particular  Senate  districts  were 

noted  by  the  Court  at  oral  argument.    Senate  District  3  stretches  -- in  the  shape  of  a 

wish bone -- from the far northeast section of Philadelphia down into North Philadelphia, 

and then up again into the Roxborough/Chestnut Hill area.  Meanwhile, Senate District 

35  reaches  -- like  a  crooked  finger  -- from  the  southernmost  border  of  Pennsylvania,

north across two thirds of the Commonwealth, and contains all of Bedford County, all of 

Cambria  County,  a  small  portion  of  Somerset  County,  then  enters  Clearfield  County, 

and  finally  crosses  over  into  Clinton  County. Perhaps  less  overt,  but  no  less  facially 

problematic in terms of compactness, was Senate District 15, described by the Court as 

an “iron  cross,” which  reaches  from  North  to  South  narrowly,  and  then  East  to  West 

narrowly, to cover a third of York County, a third of Dauphin County, and to timidly reach 

into  corners  of  Adams  and  Lancaster  Counties. See Transcript  of  Oral  Argument, 

1/23/12,  at  43-45,  70, 83-85.  In  response,  the  LRC  explained  that  the  reach  of  these 

districts  -- one  of  which  is  in  the  most  densely  populated  area  of  the  Commonwealth, 

Philadelphia -- is justified by the primacy of the population equality concern.  See, e.g., 

id. at 43 (LRC counsel stated that Senate District 3 “is compact given the population”). 

We have stated with respect to the constitutional mandate of compactness that “there is 

a  certain  degree  of  unavoidable non-compactness  in  any  apportionment  scheme.” 

Specter, 293 A.2d at 23. This Court did not sanction abandonment of the compactness 

constitutional mandate in favor of a population equality absolute.

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In  light  of  our  disposition,  we  do  not  decide  or  address  at  any  great  length  the 

remaining appeals, and aspects of appeals, which focus on particular effects on specific 

political subdivisions.  It is sufficient to reiterate, for reasons already explained, that we 

decline  the  invitation  to  revisit  prior  precedent  requiring  a  successful  appellant  to 

challenge the plan as a whole, see n.18, supra. We also note that the particular political 

subdivision fractures of which individual appellants complain may well be addressed by 

the  LRC  in  its  new  plan  upon  remand.    Having  said  this,  we  trust  that  the  LRC,  in 

formulating  its  new  plan,  and  necessarily  reducing  the  political  subdivision  splits and 

fractures,  will  be  attentive  to  the  concerns of  historically  unified subdivisions,  such  as 

County  seats.    In  the  end,  however,  we  recognize  that  the  Pennsylvania  Constitution 

permits  absolutely  necessary  political  subdivision  splits,  and  that some  divisions  are 

inevitable.  We do not mandate that the LRC avoid specific divisions, and leave the LRC 

to  conduct  its  discretionary  task  within  the  limits  set  by  the  Constitution,  reaffirmed 

above, and the prospective guidance we outline below.

- C -

- D -

The Court is satisfied that the Final Plan is contrary to law and, as our discussion 

above has revealed, there is no need to revisit or adjust our existing precedent to reach 

this  conclusion.    Nevertheless,  as  we  will  explain  in  Part  VII  below,  we  believe  that 

prospective  recalibration of  certain  of  our  precedents  would  be  salutary  and  helpful  in 

this unusual area of law, where the Court is called on to rule and speak only once every 

decade,  and  usually  in  circumstances  that  make  it  difficult  to  produce  the  most 

reasoned of expressions.   

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VII.

Additional, Prospective Guidance for Remand

Several  factors  convince  us  that  there  would  be  some  benefit  in  providing 

prospective guidance in the redistricting realm, even as to points not necessarily joined 

in this litigation.  First, is the fact that this Court is the sole voice passing upon state law 

challenges  to  redistricting  appeals,  but  our  consideration  has  been  limited  to  a  single, 

mass appeal, once every ten years, and under severe time constraints which affect the 

litigants no less than the Court.  Second, is the fact that each redistricting plan seems to 

generate  similar  citizen  complaints  concerning  the  alleged  disrespect  of  political 

subdivisions,  and  the  formation  of  odd  and  non-compact  districts  of  disparate  political 

subdivisions.  Third,  is  the  advent  of  computer  technology.    As  is  reflected  in  Dean 

Gormley’s account of the 1991 reapportionment, and as demonstrated in practice in the 

alternate  plans  produced  by  the  Holt and  Costa appellants  here,  this  development 

suggests  that  this Court’s  early  establishment  of  the  primacy  of  equalization  of 

population in formulating redistricting plans (a far more difficult task before technological 

advancements,  as  the  Court  itself  experienced  in  the  Butcher appeals)  may  warrant 

reconsideration -- at  least  respecting  the  degree  to  which  population  equality  must  be 

pursued,  or  must  be  deferred  to  as  an  explanation  for  allegations  of  unnecessary 

violence  to  other  constitutional  precepts.    Fourth,  and  finally,  our  own  review  of  our 

governing precedent in deciding these appeals has led us to conclude that it should be 

recalibrated  to allow  the  LRC more flexibility  in  formulating  plans,  and particularly  with 

respect to population deviation.  This adjustment should allow more breathing space for 

concerns of  contiguity,  compactness,  and  the  integrity  of  political  subdivisions to  be 

respected.  Our prior precedent sounds in constitutional law; to the extent it is erroneous 

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or  unclear,  or  falls  in  tension  with  intervening  developments,  this  Court  has  primary

responsibility to address the circumstance.38

Mr. Justice Saylor has twice addressed aspects of these concerns.  First, in his 

2002  concurrence  in  Albert,  he  noted  that  he  remained  “circumspect concerning  the 

manner  in  which  state  constitutional  requirements  of  compactness  and  integrity  of 

political  subdivisions  have  been  applied  by  the  Court  in  the  prior  decisions  that  are 

followed  here.”  790  A.2d  at  1000.    Second,  in  his  dissenting  statement  to  the  per 

curiam order  this  Court  entered before announcing  the  reasons for  our mandate  here, 

Justice Saylor, joined by Mr. Justice Eakin and Madame Justice Orie Melvin, noted that 

he  was  “receptive  to  the  concern  that  past  decisions  of  the  Court  may  suggest  an

unnecessarily  stringent  approach  to  equalization  of  population  as  between  voting

districts,”  but  he  believed  “this  could  be  addressed  via  prospective  guidance  from  the 

Court.”  Order, 1/25/12 (per curiam) (Saylor, J., dissenting).

Since we have already announced our determination to remand, and a new plan 

is  to  be  devised,  this  Opinion  provides  the  first  opportunity  to  offer  prospective 

guidance, and we will avail ourselves of the opportunity.

                                           
38

As  a  function  of  our  system  of  government,  this  Court  has  the  final  word  on 
matters  of  constitutional  dimension  in  Pennsylvania.    Pap’s  A.M.,  812  A.2d  at  611; 
Shambach  v.  Bickhart,  845  A.2d  793,  807  (Pa.  2004)  (Saylor,  J.,  concurring). Our 
charter,  unlike  statutes  of  the  General  Assembly  or  agency  regulations,  is  not  easily 
amended and any errant interpretation is not freely subject to correction by any co-equal 
branch of our government, other than this Court.  Shambach, 845 A.2d at 807 (Saylor, 
J.,  concurring);  see also Payne  v.  Tennessee,  501  U.S.  808,  828  (1991);  cf. City  of 
Scranton v. Firefighters Local Union No. 60, 29 A.3d 773, 784-85 (Pa. 2011) (describing 
swift  legislative  action  to  amend  State  Employees’  Retirement  Code  following  Court 
decision).    For  this  reason,  we  are  not  constrained  to  closely  and  blindly  re-affirm 
constitutional interpretations of prior decisions which have proven to be unworkable or 
badly reasoned.  See Payne, supra.

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First, and most simply, we reemphasize the importance of each of the mandates 

in  Article  II,  Section  16.    Contrary  to  the  suggestion  of  the  Court  in  In  re  1991  Plan, 

Article  II,  Section  16  by  its  terms  does  not  “require  that  the  overriding  objective  of 

reapportionment  is  equality  of  population.”    609  A.2d  at  139.    Rather,  the  Constitution 

lists  multiple  imperatives  in  redistricting,  which  must  be  balanced.    Moreover, as  our 

discussion of the governing law in Part V makes plain, the other imperatives in Article II, 

Section  16  have  all  been  recognized  by  the  U.S. Supreme  Court  as  legitimate  state 

interests that may affect, and warrant, deviations in population equality.

Rather than deriving from the language of our Constitution itself, the primacy of 

population  equality  in  redistricting,  which  is  clearly  established  in  our  decisional  law, 

derives  from  federal  decisional  law,  and  particularly  Reynolds  v.  Sims.    Our  earliest 

redistricting  opinions  reflected  an  acute  awareness  of  Pennsylvania’s  obligations  to 

respect  federal  law  – at  the  same  time  we  were  construing  our  own  organic 

constitutional  commands.    Our  first  decisions  grappling  with  Reynolds, in  the  Butcher

cases  and  in  Specter,  occurred  when  this  area  of  federal  constitutional  law  was  both 

new  and  dynamic.    Indeed,  it  appears  that  it  was  the  very  dynamism  of  the  federal 

decisional  law  that  led  this  Court  in  Specter to  emphasize  the  special  primacy  of

population equality.    As  we  have  detailed  in  Part  V  above,  it  appears  that  this Court’s 

approach was powered by its prediction of where the U.S. Supreme Court was heading 

in  its  interpretation  of  Reynolds.  Thus,  the  Court  derived  from  the  congressional 

reapportionment  decisions  in  Kirkpatrick and  Wells “that  deviations  from  equality  of 

population  that  were  formerly  regarded  as  insubstantial  and  permissible  will  now  be 

regarded  as  impermissible,  necessitating  a closer  adherence to equality  of population, 

even  in  the  area  of  state  legislative  reapportionment.”    Specter,  293  A.2d  at  20.    In 

upholding the plan in Specter, the Court noted, among other things: “It is clear that the 

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Legislative  Reapportionment  Commission  recognized  that  closer  adherence  to  the 

requirement of equality of population is now constitutionally in order for state legislative 

reapportionment plans.”  Id. at 22. 

But, of course, the business of predicting the future course of any dynamic and 

complicated  area  of  decisional  law  is  an  uncertain  one,  and  as  it  developed,  U.S.

Supreme Court precedent did not proceed in the constricting way that we predicted in 

Specter; it instead evolved to permit more flexibility in population deviation as a federal 

constitutional matter.  Notwithstanding this development, and the fact that it was argued 

to  this  Court  as  a  basis  for  permitting  greater  deviations  of  population  in  later 

redistricting cases, we did not grapple with the implications of our initial prediction, and 

our effective “constitutionalization” of a prediction of federal law frozen in time.  Instead, 

we  continued  to  suggest  an  inflexibility  respecting  population  deviation  that  was  no 

longer required by federal law.  The necessary corollary implication was that the Court 

was devaluing the remaining Section 16 requirements of compactness, contiguity, and 

political  subdivision  integrity.  It  is  not  necessary  to  recount  the  claims,  circumstances 

and results; they are detailed in our summary of the governing law in Part V.

Meanwhile, 

the  development  of  computer 

technology  appears 

to have 

substantially allayed the initial, extraordinary difficulties in achieving acceptable levels of 

population  deviation  without  doing  unnecessary  violence  to  other  constitutional 

commands.  Again, the Holt plan proves the point.  

Accordingly,  we  take  this  opportunity  to  reaffirm  the  importance  of  the  multiple 

commands  in  Article  II,  Section  16,  which  embrace contiguity,  compactness,  and  the 

integrity of political subdivisions, no less than the command to create legislative districts 

as  nearly  equal  in  population  as  “practicable.”    Although  we  recognize  the  difficulty  in 

balancing, we do not view the first three constitutional requirements as being at war, or 

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in  tension,  with  the  fourth.    To  be  sure,  federal  law  remains,  and  that  overlay  still 

requires,  as  Reynolds taught,  that  equality  of  population  is  the  “overriding  objective.”  

But, as later cases from the High Court have made clear, that overriding objective does 

not  require that  reapportionment  plans  pursue  the narrowest  possible  deviation,  at  the 

expense  of  other,  legitimate  state  objectives,  such  as  are  reflected  in  our  charter  of 

government. See, e.g., Gaffney, 412 U.S. at 748-49 (“Fair and effective representation . 

. . does not depend solely on mathematical equality among district populations. There 

are  other  relevant  factors  to  be  taken  into  account  and  other  important  interests  that 

States may legitimately be mindful of.”); Mahan, 410 U.S. at 329 (upholding deviations 

from  ideal  population  equality  as  justified  by  rational  policy  of  maintaining  integrity  of 

political  subdivisions  in  Virginia  state  legislature).    The  law  has  developed  to  afford

considerably more flexibility.

We trust that our recalibration of the emphasis respecting population equality to 

afford greater flexibility in reapportioning legislative districts by population should create 

sufficient  latitude  that  the  2011  LRC,  and  future  such  bodies,  may  avoid  many  of  the 

complaints that citizens have raised over the years, particularly respecting compactness 

and divisions of political subdivisions.  Like the U.S. Supreme Court, we do not direct a 

specific  range  for  the  deviation  from  population  equality,  or  purport  to  pre-approve 

redistricting  plans  that  fall  within  that  range.  Nor  do we  direct  the  LRC  to  develop  a 

reapportionment plan that tests the outer limits of acceptable deviations.  See In re 1981 

Plan,  442  A.2d  at  667.    The  law  in  this  area  remains  complex  and  dynamic,  and  we 

stress, once again, that we deem the LRC to retain considerable discretion in fashioning 

a  plan  that  comports  with  all  constitutional  requirements.    Furthermore,  we  have  no 

doubt  that  the  LRC  will  act  in  good  faith,  and  with  fidelity,  in  discharging  its  weighty, 

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difficult  constitutional  duty  on  remand  – no  less  than  we  have  in  discharging  our 

appellate function. 

VIII. Procedure on Remand

Where,  as  here,  aggrieved  citizens  prove  that  a  redistricting  plan  is  contrary  to 

law,  the  Constitution  specifies  that  the  remedy  is  a  remand  to  the  LRC  and  the  Final 

Plan  does  not  have  force  of  law.    This  Court’s  per  curiam order  of  January  25,  2012, 

rendered two days after argument, provided the only direction possible to candidates in 

light  of  our  Constitution  and  our  2002  decision  in  Albert,  which  upheld  the  2001  Final 

Plan.  As we have noted earlier, we recognize that our constitutional duty to remand a 

plan  found  contrary  to  law  has  disrupted  the  2012  primary  election  landscape. That 

disruption was unavoidable in light of the inexcusable failure of the LRC to adopt a Final 

Plan  promptly  so  as  to  allow  the  citizenry  a  meaningful  opportunity  to  appeal  prior  to 

commencement of the primary season.  We trust that the LRC will avert similar delay as 

it is called upon to faithfully execute its task upon remand, and we trust that future such 

Commissions will act more promptly.

We  are  not  in  a  position  to  predict  when  the  LRC  will  complete  its  task  of 

developing  a  new  final  redistricting  plan  that  complies  with  law,  nor  when  such  a  new 

plan  can  become  final  and  have  force  of  law.39 Any  issues  respecting  deferring  the 

state legislative primary, or scheduling special elections, etc., are, in the first instance, 

                                           
39

The  Costa appellants  have  suggested  that,  with  the  use  of  available  computer 
technology  and  familiarity  with  the  necessary  data,  a  new  preliminary  plan  accounting 
for  the  objective  criteria  set  forth  in  our  Constitution  can  be  generated  in  a  matter  of 
days.  Costa Brief at 34. 

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the  concern  and  province  of  the  political  branches.  Such  questions  have  not  been 

briefed and presented to this Court.40

Jurisdiction retained.

Mr.  Justice  Baer,  Madame  Justice  Todd,  and  Mr.  Justice  McCaffery  join  the 

opinion.

Mr. Justice Saylor files a concurring and dissenting opinion.

Mr. Justice Eakin files a concurring and dissenting opinion.

Madame Justice Orie Melvin files a dissenting opinion.  

                                           
40

We  note  that  once  the  LRC  approves  a  new  preliminary  plan,  the  Constitution 
affords  persons  aggrieved  by  the  new  plan  a  right  to  object,  before  the  plan  is  finally 
approved by the LRC, and to a subsequent right to appeal to this Court.  Should such 
appeals be  filed,  we  will  decide  them  with  alacrity,  as  we  have  decided  the  ones  now 
before us. 

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