[J-1-2018] [MO: Todd, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

LEAGUE OF WOMEN VOTERS OF 

PENNSYLVANIA, CARMEN FEBO SAN 

MIGUEL, JAMES SOLOMON, JOHN 

GREINER, JOHN CAPOWSKI, 

GRETCHEN BRANDT, THOMAS 

RENTSCHLER, MARY ELIZABETH 

LAWN, LISA ISAACS, DON LANCASTER, 

JORDI COMAS, ROBERT SMITH, 

WILLIAM MARX, RICHARD MANTELL, 

PRISCILLA MCNULTY, THOMAS 

ULRICH, ROBERT MCKINSTRY, MARK 

LICHTY, LORRAINE PETROSKY,

Petitioners

v.

THE COMMONWEALTH OF 

PENNSYLVANIA; THE PENNSYLVANIA 

GENERAL ASSEMBLY; THOMAS W. 

WOLF, IN HIS CAPACITY AS 

GOVERNOR OF PENNSYLVANIA; 

MICHAEL J. STACK III, IN HIS CAPACITY 

AS LIEUTENANT GOVERNOR OF 

PENNSYLVANIA AND PRESIDENT OF 

THE PENNSYLVANIA SENATE; 

MICHAEL C. TURZAI, IN HIS CAPACITY 

AS SPEAKER OF THE PENNSYLVANIA 

HOUSE OF REPRESENTATIVES; 

JOSEPH B. SCARNATI III, IN HIS 

CAPACITY AS PENNSYLVANIA SENATE 

PRESIDENT PRO TEMPORE; ROBERT 

TORRES, IN HIS CAPACITY AS ACTING 

SECRETARY OF THE 

COMMONWEALTH OF PENNSYLVANIA; 

JONATHAN M. MARKS, IN HIS 

CAPACITY AS COMMISSIONER OF THE 

BUREAU OF COMMISSIONS, 

ELECTIONS, AND LEGISLATION OF 

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No. 159 MM 2017

On the Recommended Findings of Fact 

and Conclusions of Law of the 

Commonwealth Court of Pennsylvania 

entered on 12/29/18 at No. 261 MD 

2017

ARGUED: January 17, 2018
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THE PENNSYLVANIA DEPARTMENT OF 

STATE,

Respondents

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DISSENTING OPINION

JUSTICE MUNDY FILED: February 7, 2018

I respectfully dissent. Today the Majority announces that the Pennsylvania 

Congressional Redistricting Act of 2011 clearly, plainly and palpably violates the 

Pennsylvania Constitution on the basis of the Free and Equal Elections Clause. See 

generally PA. CONST. art. I, § 5. The claim here is not that voters were unable to cast 

their vote, but rather that the power of the individual voters was diluted, thus preventing 

them from electing candidates of their choice. The Majority concedes, “[n]either Article 

1, Section 5, nor any other provision of our Constitution, articulates explicit standards 

which are to be used in the creation of congressional districts.” Majority Op. at 119. 

Nevertheless, the Majority holds that “certain neutral criteria” are to be utilized in 

drawing congressional districts in this Commonwealth. Id.

In Erfer v. Commonwealth, 794 A.2d 325 (Pa. 2002), a partisan gerrymandering 

case, this Court rejected the “[p]etitioners’ claim that the Pennsylvania Constitution’s 

free and equal elections clause provides further protection to the right to vote than does 

the Equal Protection Clause.” Id. at 332. The Court further noted that the petitioners 

had failed to persuade us “why we should, at this juncture, interpret our constitution in 

such a fashion that the right to vote is more expansive than the guarantee found in the 

federal constitution.” Id. Despite the fact that Erfer established the Free and Equal 

Elections Clause did not provide any heightened protections to Pennsylvania voters, the 

Majority fails to provide legal justification for its disapproval of Erfer, other than citing to
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Shankey v. Staisey, 257 A.2d 897 (Pa. 1969), which pre-dates Erfer by 33 years. In my 

view, stare decisis principles require us to give Erfer full effect.

Recognizing that the Pennsylvania Constitution does not articulate explicit 

standards to be used in the creation of congressional districts, the Majority fashions a 

three part test: “(1) the population of such districts must be equal, to the extent possible; 

(2) the district that is created must be comprised of compact and contiguous 

geographical territory, and (3) the district respects the boundaries of existing political 

subdivisions contained therein, such that the district divides as few of those subdivisions 

as possible.” Majority Op. at 120-121. These vague judicially-created ”neutral criteria”

are now the guideposts against which all future congressional redistricting maps will be 

evaluated, with this Court as the final arbiter of what constitutes too partisan an 

influence. Id. at 123.

In this regard, the Majority acknowledges that these “neutral criteria” only 

establish a constitutional floor. Majority Op. at 123. However, the Majority admits that it 

is possible for the General Assembly to draw a map that fully complies with the 

Majority’s “neutral criteria” but still “operate[s] to unfairly dilute the power of a particular 

group’s vote for a congressional representative.” Id. at 124. This undermines the 

conclusion that there is a clear, plain, and palpable constitutional violation in this case.

As I explained in my January 22, 2018 Dissenting Statement, I also have grave 

concerns about the Majority’s remedy. I agree with the Majority that we have the 

authority to direct the legislative and executive branches of our government to draw new 

maps to remedy any violation of law. However, I am troubled by the Majority’s decision 

to strike down the 2011 congressional map on the eve of the 2018 midterm election. 

Particularly its disregard for precedent which supports deferring redistricting until after 

the 2018 election. See generally Butcher v. Bloom, 203 A.2d 556, 568 (Pa. 1964). I
[J-1-2018] [MO: Todd, J.] - 4

further share the concerns expressed by the dissenting opinion of Chief Justice Saylor 

and the dissenting portion of the concurring and dissenting opinion of Justice Baer that 

this is a political process the General Assembly should be afforded the full opportunity 

and adequate time to address. I write further only to address the remedy suggested by 

the Majority of bestowing the task of drawing a new Congressional map onto itself in the 

face of a clear legislative alternative.

1

The Majority states it fully supports the “preferred path of legislative and 

executive action,” and concedes “that the primary responsibility and authority for 

drawing federal congressional legislative districts rests squarely with the state 

legislature.” Majority Op. at 132. Notwithstanding this, the Majority declares its remedy 

“was well within our judicial authority, and supported by not only our Constitution and 

statutes . . . but by Commonwealth and federal precedent, as well as similar remedies 

provided by the high courts of other states acting when their sister branches fail to 

remedy an unconstitutional plan.” Id. at 133.

The Majority cites Butcher as support for its remedy, but omits that the Court in 

Butcher granted the General Assembly 11 months to draft a new map before 

intervening, yet it nevertheless concludes its remedy is “entirely consistent with . . . 

Butcher.” Id. This Court has always had the pragmatic option to utilize the current 

congressional maps for the 2018 election, while allowing the General Assembly the 

appropriate amount of time to redraw our legislative districts. Further, as I discuss 

below, the magnitude and breadth of the Majority’s remedy is inconsistent with the 

restraints imposed by federal law.

 

1

The Majority does not say whether any Court-created map remains in effect just 

through the 2018 elections, also through 2020, and any special elections that may arise 

in between, until after the 2020 census, or some other point in time.
[J-1-2018] [MO: Todd, J.] - 5

The Elections Clause of the Federal Constitution states that “[t]he Times, Places 

and Manner of holding Elections for Senators and Representatives, shall be prescribed 

in each State by the Legislature thereof; but the Congress may at any time by Law 

make or alter such Regulations, except as to the Places of chusing Senators.”2 U.S.

CONST. art I, § 4, cl. 1 (emphasis added). The Elections Clause at its core, grants the 

authority to draw a state’s congressional districts to the state legislatures, Congress, or 

an independent redistricting commission.3 Ariz. State Legislature v. Ariz. Indep. Redist. 

Comm’n, 135 S. Ct. 2652, 2667-68 (2015). As the Supreme Court of the United States 

recognized, “redistricting is a legislative function, to be performed in accordance with 

 

2

The Supreme Court has described the Elections Clause as broad in scope, but has 

also noted it is a specific grant of power to the States directly. Cook v. Gralike, 531 U.S. 

510, 523 (2001). The power of the States to regulate federal elections does not arise as 

a power “reserved” to the States under the Tenth Amendment. Id.; see also, e.g., U.S.

CONST. amend. X. In other words, “the States may regulate the incidents of such 

elections . . . only within the exclusive delegation of power under the Elections Clause.” 

Cook, 531 U.S. at 523.

In discussing “state rights” and “federalism,” the Majority appears to operate on the 

assumption that a state legislature’s redistricting authority over federal elections is 

indeed such a Tenth Amendment power. Majority Op. at 137 n.79. However, other 

than the Elections Clause, “[n]o other constitutional provision gives the States authority 

over congressional elections, and no such authority could be reserved under the Tenth 

Amendment.” Cook, 531 U.S. at 522-23. The Elections Clause is both an express 

grant of, and a limitation on, the power of state governments in federal elections, 

including the judiciary, and as I discuss infra, the cases cited by the Majority are not 

“concrete” and do not form “a bedrock foundation.” Majority Op. at 134, 137. This is not 

reading the Elections Clause “in a vacuum.” Id. at 137 n.79.

3

The Majority misconstrues my view of the Elections Clause. See Majority Op. at 137 

n.79. If this Court concluded that a congressional map was unconstitutional, and if the 

General Assembly was given sufficient time to act (which is not the case here) and it 

fails to act, a circumstance may arise where this Court could draw a map on a 

temporary remedial basis pending further state or federal legislative action. But it is 

quite another matter for this Court to put the General Assembly on a three-week 

timeline without articulating the complete criteria necessary to be constitutionally

compliant.
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the State's prescriptions for lawmaking, which may include the referendum and the 

Governor's veto.” Id. at 2668. It is a truism that this Court possesses neither legislative 

function, nor authority. While this Court is certainly the final arbiter of the meaning of 

the Pennsylvania Constitution, it may not remedy any violations of our state charter, in a 

manner, that the Federal Constitution prohibits. After all, federal law is supreme. U.S.

CONST. art. VI, cl. 2.

The Majority points to certain cases that in its view “make concrete the state 

judiciary’s ability to formulate a redistricting plan, when necessary.” Majority Op. at 134. 

At the outset, on this point, we can set aside Butcher v. Bloom, 216 A.2d 457 (Pa. 

1966), which pertains to the state legislative districts of the General Assembly. Butcher, 

216 A.2d at 457-58. The Elections Clause does not itself circumscribe this Court’s

authority in drawing a state legislative map, as the Elections Clause only refers to “[t]he 

Times, Places and Manner of holding Elections for Senators and Representatives[.]” 

U.S. CONST. art I, § 4, cl. 1; see also Clingman v. Beaver, 544 U.S. 581, 586 (2005) 

(stating, that the power granted to the States under the Elections Clause “is matched by 

state control over the election process for state offices.”).

Turning to the cases of the Supreme Court of the United States cited by the 

Majority, none of them support the remedy contemplated here. In Scott v. Germano, 

381 U.S. 407 (1965), the Supreme Court issued an unsigned per curiam opinion 

pertaining to apportionment among the Illinois Senate and the Illinois House of 

Representatives, which is outside the purview of the Elections Clause.4 Scott, 381 U.S. 

at 408.

 

4

Indeed, the cases cited in Scott as examples of state judicial intervention only pertain 

to state legislative districts. See Scott, 381 U.S. at 409 (collecting cases).
[J-1-2018] [MO: Todd, J.] - 7

Nor did the Court contemplate the Elections Clause in Growe v. Emison, 507 

U.S. 25 (1993). In Growe, the Court, in an opinion authored by Justice Scalia, only 

considered the question of Pullman abstention.5 Briefly, there was dueling federal and 

state litigation about Minnesota’s state and federal legislative districts. Growe, 507 U.S. 

at 27-28. The Court held the federal district court should have deferred any judicial 

intervention until the Minnesota courts had fully resolved its case. The Elections Clause 

was not an issue in Growe, the Court merely observed what the Minnesota judiciary had 

done, and it did not hold it to be constitutionally valid.6 The Court’s opinion in Growe

sheds no light on whether a state court may take on the task of drawing a federal 

congressional map in the first instance.7

The Court points out that in Wise v. Lipscomb, 437 U.S. 535 (1978), the 

Supreme Court stated, “[l]egislative bodies should not leave their reapportionment tasks 

to the federal courts; but when those with legislative responsibilities do not respond, or 

the imminence of a state election makes it impractical for them to do so, it becomes the 

‘unwelcome obligation,’ . . . of the federal court to devise and impose a reapportionment 

 

5 Generally, under Pullman abstention, named for R.R. Comm’n of Tex. v. Pullman Co., 

312 U.S. 496 (1941), a federal court is required to defer to pending state court litigation 

“when a constitutional issue in the federal action will be mooted or presented in a 

different posture following conclusion of the state-court case.” Growe, 507 U.S. at 32.

6

Indeed, the Court explicitly stated that after the Supreme Court of Minnesota adopted 

its own redistricting plan, the federal district court would then be permitted to resolve 

any and all claims regarding the state court’s plan. Growe, 507 U.S. at 36.

7 Eleven years later, Justice Scalia dissented from the Court denying certiorari in Colo. 

Gen. Assembly v. Salazar, 541 U.S. 1903 (2004), which presented this very question of 

whether the Elections Clause permits congressional maps drawn by state courts. While 

I recognize such dissents are of limited value, my point is only that it would seem odd 

for Justice Scalia to affirmatively wish for the Court to decide a constitutional question 

that he himself had supposedly just decided 11 years prior.
[J-1-2018] [MO: Todd, J.] - 8

plan pending later legislative action.” Wise, 437 U.S. at 540; see also Majority Op. at 

134. The Majority’s reliance on this sentence is misplaced for two reasons. First, like 

the other cases, Wise pertained to a Texas local districting scheme for the Dallas City 

Council, which is outside the Elections Clause’s sphere of concern. Id. at 537-38; see 

also U.S. CONST. art I, § 4, cl. 1.

More importantly, Wise arose out of a federal court action.8 As noted above, by 

its very text, the Elections Clause leaves the task of apportionment to state legislatures. 

However, the Clause also explicitly contemplates that Congress may override state 

legislatures as it wishes in this area. See Ariz. State Legislature, 135 S. Ct. at 2670 

(stating, “[t]here can be no dispute that Congress itself may draw a State's 

congressional-district boundaries.”); accord Vieth v. Jubelirer, 541 U.S. 267, 275 (2004) 

(plurality). Of course, that same Congress is empowered to shape the jurisdiction of the 

federal judiciary, with certain exceptions not relevant here. See generally U.S. CONST.

art. III, § 1. It is therefore unsurprising that Congress may empower the federal judiciary 

to entertain civil suits and grant relief in a manner that overrides the maps drawn by 

state legislatures, where Congress may do the same directly through legislation. 

Indeed, the Court has expressly observed the Voting Rights Act of 1965 contemplates 

such relief. See Branch v. Smith, 538 U.S. 254, 268 (2003).9

 

8

In Agre v. Wolf, ___ F. Supp. 3d ___, 2018 WL 351603 (E.D. Pa. Jan. 10, 2018), a 

federal court action was filed in the Eastern District of Pennsylvania, challenging the

same congressional map that is before us in this case. On January 10, 2018, a threejudge district court entered judgment in favor of the state legislative and executive 

named defendants. There is an appeal currently pending.

9 Branch, also authored by Justice Scalia, dealt with a federal court-authored 

congressional map for Mississippi’s districts following the 2000 census. The Court 

observed that Congress enacted 2 U.S.C. § 2c to require single-member congressional 

districts, the boundaries of which “shall be established by law.” 2 U.S.C. § 2c. Branch

observed that this express congressional authorization, also authorized state and 

federal courts to enforce its mandate. Branch, 538 U.S. at 272. Interestingly, Branch

(continued...)
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For the foregoing reasons, I respectfully dissent.

 

(...continued)

also declined to address the district court’s separate conclusion that a state-court-drawn 

map was unconstitutional under the Elections Clause. Id. at 265. In any event, there is 

no alleged violation of Section 2c in this case, nor is there any other congressional 

statute addressing partisan considerations in congressional districting.