IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

PHILIP T. GRESSMAN; RON Y. DONAGI; 

KRISTOPHER R. TAPP; PAMELA GORKIN; 

DAVID P. MARSH; JAMES L. 

ROSENBERGER; AMY MYERS; EUGENE 

BOMAN; GARY GORDON; LIZ MCMAHON; 

TIMOTHY G. FEEMAN; AND GARTH 

ISAAK,

Petitioners

v.

VERONICA DEGRAFFENREID, IN HER 

OFFICIAL CAPACITY AS THE ACTING 

SECRETARY OF THE COMMONWEALTH 

OF PENNSYLVANIA; JESSICA MATHIS, IN 

HER OFFICIAL CAPACITY AS DIRECTOR

FOR THE PENNSYLVANIA BUREAU OF 

ELECTION SERVICES AND NOTARIES,

Respondents

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No. 142 MM 2021

DISSENTING STATEMENT

JUSTICE WECHT FILED: January 10, 2022

I disagree with the Court’s decision not to assume plenary jurisdiction of this matter 

under the power of extraordinary jurisdiction we are granted by 42 Pa.C.S. § 726. The 

adoption of a congressional map that satisfies the dictates of state and federal law is of 

immediate public importance to the citizens of the Commonwealth,1 and considerations 

occasioned by further delay of these proceedings counsel strongly in favor of this Court’s 

 

1 League of Women Voters v. Commonwealth, 178 A.3d 737, 766-67 & n.35 

(Pa. 2018).
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intervention. Neither the parties nor the proposed intervenors object to the 

commencement of parallel judicial proceedings in furtherance of expediting a potential 

resolution while the political branches continue to seek agreement over a map that can 

be adopted by the General Assembly and signed into law by the Governor, which would 

render this case moot. Although redistricting “is primarily the duty and responsibility of 

the State through its legislature or other body,”2 unless and until the political process 

produces such a map, this Court must be prepared to act to safeguard and vindicate the 

guarantee of “free and equal” elections and the equal protection of the law.3 

Presently, our principal concern at this stage is time. The Commonwealth Court 

has established a deadline of January 30, 2022, for the political branches to adopt a 

congressional map, with court proceedings to follow should those branches fail to do so. 

For its part, the Department of State has indicated a preference for having a final map 

chosen by January 24. While neither of these dates is statutorily mandated, practically 

speaking any judicial resolution of this matter is temporally cabined by the election 

calendar, which is set forth in the Election Code. Pennsylvania’s primary election is 

scheduled for May 17, 2022.4 Accordingly, the first day that candidates for Congress may 

circulate and file nomination petitions to seek a political party’s nomination for those 

offices at the “General primary” is February 15, and they must be filed by March 8.5 Those 

 

2 Chapman v. Meier, 420 U.S. 1, 27 (1975).

3 See Pa. Const. art. I, § 5; U.S. Const. amend. XIV.

4 See 25 P.S. § 2753(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 . . . . Candidates 

for all offices to be filled at the ensuing general election shall be nominated at the General 

primary.”).

5 See id. § 2868 (providing that “[n]o nomination petition shall be circulated prior to 

the thirteenth Tuesday before the primary, and no signature shall be counted unless it 
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seeking the nomination of political bodies may begin circulating nominating papers on 

March 9, with a filing deadline of August 1.6

Federal law provides something of a backstop in the event that a State fails to 

adopt a congressional map in accordance with the constitutionally mandated 

reapportionment process following a decennial census:

Until a State is redistricted in the manner provided by the law thereof after 

an apportionment, the Representatives to which such State is entitled under 

such apportionment shall be elected in the following manner: . . . (5) if there 

is a decrease in the number of Representatives and the number of districts 

in such State exceeds such decreased number of Representatives, they 

shall be elected from the State at large.

2 U.S.C. § 2a(c). Pennsylvania has not resorted to this method since that federal law 

was adopted. In fact, Pennsylvania has not elected the entirety of its congressional 

delegation using at-large districts since the eighteenth century. The Commonwealth 

utilized a statewide general ticket in 1788 for the First United States Congress, adopted 

congressional districts for the election of 1790, and then reverted to at-large elections in 

1792 for the Third Congress. Although at-large elections occasionally were used to elect 

a handful of Representatives in the late nineteenth- and early-twentieth centuries—with 

no more than four members of Congress elected in that manner in a given election year—

Congress reserved statewide general tickets for special use with the 1842 Apportionment 

Bill. Since 1967, States have been obligated to “establish[] by law a number of districts 

equal to the number of Representatives to which such State is so entitled, and 

Representatives shall be elected only from districts so established, no district to elect 

 

bears a date affixed not earlier than the thirteenth Tuesday nor later than the tenth 

Tuesday prior to the primary”).

6 See id. § 2913(b) (providing that “[n]o nomination paper shall be circulated prior to 

the tenth Wednesday prior to the primary, and no signature shall be counted unless it 

bears a date affixed not earlier than the tenth Wednesday prior to the primary nor later 

than the second Friday subsequent to the primary”).
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more than one Representative . . . .” Id. § 2c. Moreover, to risk defaulting to at-large 

elections now would raise significant equal protection and Voting Rights Act concerns 

given the dilutive effect that exclusively statewide congressional elections would have 

upon minority voters, particularly in Philadelphia County.

Given these weighty concerns and the tight time frame that will result from leaving 

the case with the Commonwealth Court to adjudicate in the meanwhile, our immediate 

intervention is warranted. To that end, I would take jurisdiction now and appoint a special 

master to consolidate this matter and its companion case, to resolve the numerous 

pending intervention petitions, to solicit proposed maps along with the requisite 

constitutional and technical analyses, and to make a recommendation to this Court as to 

which map should be adopted, which we may then consider de novo with or without 

additional changes. Otherwise, delays arising from the typical trial and appellate process 

may drag out our ultimate resolution of this case until mid-March or even April. This 

expedited approach is not without precedent; in Mellow v. Mitchell, 607 A.2d 204 

(Pa. 1992), the political branches failed to timely promulgate a congressional map using 

data from the 1990 census, following which the Commonwealth lost two congressional 

seats. On that occasion, this Court stepped in to ensure that federal law was complied 

with and that Pennsylvanians’ due representation was assured by an orderly election. 

Because time is of the essence, I see no good reason not to follow that example today.

For these reasons, I respectfully dissent.