[ J
- 20 - 2022 ] [MO: Baer, C.J. ] IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

CAROL ANN CARTER, MONICA PARRILLA, REBECCA POYOUROW, WILLIAM TUNG, ROSEANNE MILAZZO, BURT SIEGEL, SUSAN CASSANELLI, LEE CASSANELLI, LYNN WACHMAN, MICHAEL GUTTMAN, MAYA FONKEU, BRADY HILL, MARY ELLEN BALCHUNIS, TOM DEWALL, STEPHANIE MCNULTY AND JANET TEMIN,

Petitioners

v.

LEIGH M. CHAPMAN, IN HER OFFICIAL CAPACITY AS THE ACTING SECRETARY OF THE COMMONWEALTH OF PENNSYLVANIA; JESSICA MATHIS, IN HER OFFICIAL CAPACITY AS DIRECTOR FOR THE PENNSYLVANIA BUREAU OF ELECTION SERVICES AND NOTARIES,

Respondents

----------------------------------------------------------- PHILIP T. GRESSMAN; RON Y. DON AGI; 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. : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : No. 7 MM 2022

ARGUED: February 18, 2022[J

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LEIGH M. CHAPMAN, IN HER OFFICIAL CAPACITY AS THE ACTING SECRETARY OF THE COMMONWEALTH OF PENNSYLVANIA; JESSICA MATHIS, IN HER OFFICIAL CAPACITY AS DIRECTOR FOR THE PENNSYLVANIA BUREAU OF ELECTION SERVICES AND NOTARIES,

Respondents : : : : : : : : :

DISSENTING O PINION

OPINION FILED: March 9, 2022 JUSTICE TODD DECIDED: February 23, 2022 I dissent to the majority’s selection of the Carter Plan as the congressional redistricting plan

. Initially, I observe that our Court was compelled to act in this matter because the General Assembly and the Governor failed to agree on a congressional redistricting p lan in the aftermath of the 2020 Census, and a swift and final resolution of the legal and factual disputes surrounding the plan adopted by the Special Master was necessitated by the election timetable for the looming May 17, 2022 Primary Election

. As emphasized by the majority, this is not a task o ur Court sought, and , as a general matter, is one which our Court views as “unwelcome.” See Majority Opinion at 2 (quoting League of Women
V oters v. Commonwealth , 178 A.3d 737, 823 (Pa. 2018 ) (“ LWV II ”) ). N evertheless, whenever the leg islative and executive branches are at an impasse and unable to enact a redistricting plan into law, it falls to the judiciary as a coequal branch of our tripartite system of constitutional governance to determine an appropriate redistricting plan, and , when called upo n, we will faithfully fulfill that solemn duty. LWV II , 178 A.3d at 822. In exercising that duty, I respectfully reject th e m ajority ’s selection of the Carter
Plan

. R a ther, based on my analysis of the neutral constitutional criteria we set forth in[J

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LWV II , I would select the plan developed by the “ Gressman Math / Science ” Petitioners

– the “Gressman Plan ”

– as I consider it to most closely adhere to tho se neutral standards

. 1 I begin with some notable areas in which my views align with the majority

. Like the majority, I disapprove of the rationale the Special Master used to justify adopting her chosen plan

– H.B. 2146

– and I recognize that an examination of how well a

c ongressional redistricting plan comports with the four neutral criteria our Court
articulated in LWV II 2 is of paramount importance in any assessment of whether that plan provides each voter what is guaranteed them by the Free and Equal Clause of the Pennsylvania Constitution 3

– namely , that their vote is given full effect and not impe rmissibly diluted. LWV II , 178 A.3d at 816. I likewise agree that the Special Master improperly accorded H.B. 2146 undue deference as “ presumptively reasonable and legitimate” because , even though it was only a bill that never acquired the force of law ( as it was vetoed by the Governor ) , in her view,
it best represented the will of the voters among the competing plans

. Report of the Special Master , 2/7/22, at 213

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. Respectfully, I find the Special Master’s assertion unfounded , given that , under our Commonwealth’s Constitution , and the duly enacted statutory framework governing the redistricting process promulgated thereto, the responsibility for approving a c ongressional redistricting plan is shared equally by the Governor and the General Assembly

. S ee LWV II , 178 A.3d at 742 (“ Pennsylvania's

1 As the m ajority recognizes, and as I discuss below, any plan we pick must also satisfy the requirements of the f ederal Voting Rights Act , 52 U.S.C. § 10301. LWV II , 178 A.3d at 817 n.72. 2 C ongressional districts created under a redistricting plan must: (1) be compact ; (2) be contiguous; (3) be as nearly equal in population as practicable; and (4) not divide any county, city, incorporated town, borough, township, or ward, except where necessary to ensure equality of population. LWV II , 178 A.3d at 816

- 17. 3 Pa. Const. art. I, § 5 (guaranteeing that all “ [e] lections shall be free and equal .”)

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congressional districts are drawn by the state legislature as a regular statute, subject to veto by the Governor. ”)

. Because the Governor is elected by the voters of the enti re Commonwealth , there is , therefore, no basis to regard his veto of the proposed plan in
this matter as somehow less representative of the will of the people than the legislature’s

own enactment of that plan. H.B. 2146 therefore stands on equal footing with all other plans submitt ed to this Court

– including the Governor’ s alternative proposed plan

— namely , that it is a plan worthy of thoughtful consideration

. I t is not entitled to special weight merely because it was passed by the General Assembly , but never became law

. See Sixty

- Seventh Minnesota State Senate v. Beems , 406 U.S. 187, 197 (1972) ( recognizing that , when a reapportionment plan is offered by the legislature but vetoed by the Governor , and the Governor offers his own plan which is not adopted by the legislature, b oth plans stand on an equal footing and are equally worthy of “ thoughtful
conside ration.”)

. Further, the majority properly rejected the Special Master’s automatic disqualification of plans which do not meet the mathematical minimum of a one - person deviation from the ideal district population. As the m ajority notes, a slightly greater deviation from the ideal population of plus or minus one person, resulting in a total deviation of two persons, is not, in and of itself, disqualifying. A marginally greater population deviation can be justified on the basis of “consistently applied l e gislative policies ” that are nondiscriminatory, such as compactness, respect for municipal boundaries, preserving cores of prior districts, and avoiding conte sts between incumbent members of Congress

. Karcher v. Daggett , 462 U.S. 725, 740 (1983)

. However, my agreement with the majority largely ends there. Most critically, in selecting the optimal redistricting plan from those before us, I disagree that , in this
instance , we need to look beyond the constitutionally

- specified neutral criteria, and[J

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examine subordinate considerations

. As the majority properly acknowledges, we recognized in LWV II that the four neutral criteri a
– contiguity, compactness, equ al population, and splitting of political subdivisions

– are the irreducible minimum requirements of Artic le I , Section 5 every redistricting plan must meet

. See LWV II , 178
A.3d at 816

. Indeed, as the m ajority aptly ter m s them, they are “core” requirements , and
the other considerations our Court enumerated in LWV II such as preservation of communities of interest, preservation of prior districts, protection of incumbents, and partisan fairness are “ subordinate historical considerations .” Majority Opinion at 34 (emphasis added ) ; s ee also LWV II , 178 A.3d at 817 (“ We recognize that other factors have historically played a role in the drawing of legislative districts, such as the preservation of prior district lines, protect ion of incumbents, or the maintenance of the political balance which existed after the prior reapportionment. However, we view these factors to be wholly subordinate to the neutral criteria of compactness, contiguity, minimization of the division of political subdivisions, and maintenance of population equality among congressional districts. ” (citation omitted) )

. In my view, a ssessment of subordinate or secondary considerations such as partisan fairness , or whether a plan represents the least change from a prior c ongressional districting plan , is necessary only
when a court must choose among various plans that are equal with resp ect to the ir compliance with the core criteria. Where , however , one plan is superior to all others, as measured by the closeness of its adherence to these criteria, I find it unnecessary for a
court to consider the subordinate considerations

. While I recognize that none of the
submitted plans are perfect in this regard , I consider the Gressman Plan to best conform
to the core criteria of all the plans submitted

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The Gressman P lan was crafted by a group of 12 professors of mathematics, statistics, computer science , geography , and data science who teach at Pennsylvania’s institutions of higher learning , and who also live and vote in the Commonwealth

. See
Petition for Review filed in Gressman v. Chapman , 465 M.D. 2021 (Pa. Cmwlth

. ). As the
Gressman Petitioners have described in their brief to our Court , they utilized a process
known as computational redistricting , which , as a general matter, relies on raw population
data and mathematical and statistical algorithms to generate maps based solely on
neutral redistricting criteria

. See Gressman Brief in Support of Exceptions to Special Master’s Report at 8 ( citing , inter alia , Bruce E. Cain et al. , A Reasonable Bias Approach to Gerrymandering: Using Automated Plan Generation to Evaluate Redistricting Proposals , 59 Wm. & Mary L. Rev. 1521, 1536 (2018) (opining that constructing computational algorithms that create maps based on the neutral principles of “preservation of extant communities, compactness, contiguity, and adherence to one

person, one - vote guidelines ” minimizes the influence of human bias in the map drawing
process ) )

. In my view, the Gressman Plan , which was the product of this process, more closely adheres to all of the core criteria, collectively, than any of the plans currently
before our Court , as measured by objective metrics

. 4 First, the Gressman Plan, like all the plans submitted to our Court , satisfies the requirement that its designated district s be contiguous.

4 In making this assessment, as does the m ajority , I rely on the comprehensive comparison of Dr. Daryl DeFord of all of the plans which have been submitted to our Court

. See Majority Opinion at 24 (discussing DeFord analysis).[J

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Second, t he Gressman plan has the least minimum population deviation in

c ongressional districts as is mathematically possible

– one person
– achieving ideal population equality of each district at 764,864 or 764, 865 persons per district

. Third, w ith respect to compactness, which is a measure o f the geographic or geometric regularity of the c ongressional districts created, the Gressman Plan is as good

as or better than the other plans, and in particular the Carter Plan, according to four widely accepted statistical measures : Polsby

– Popper, Reock , Convex Hull , and C ut E dges

. See generally Report of the Special Master , 2/7/22, at 25, 69, 77 (discussing measures); Stephen Ansolabehere et al. , A Two Hundred

- Year Statistical History of the Gerrymander

, 77 Ohio St. L.J. 741, 746 (2016) (discussing Polsby

– Popper, Reock , and
Convex Hull measures) ; Expert Report of Moon Duchin, 1/24/22, at 6 (Exhibit A to Exceptions of Go vernor Wolf) (discussing Cut Edges measure)

. While I observe that
some of the other submitted plans yield slightly more compact valuations on individual

measures , there is , as the majority notes, tension between assuring compactness and minimizing political subdivisions splits. See Majority Opinion at 28 (“ It is easily comprehended that adherence to county and city lines will decrease compactness because many of the boundaries follow geographic features such as rivers, which
meander across our Commonwealth. ”). In that regard, and finally , the splitting of political subdivisions, as a general proposition, has a particularly pernicious effect in diluting the vote of the residents of those subdivisions, and is to be scrupulously avoided unless absolutely necessary to maintain[J

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equality of population. 5 LWV II , 178 A.3d at 815

. The Gressman Plan is superlative in that regard. Dr. DeFord’s analysis shows that , overall , the Gressman plan divides only
49 political subdivision s , which is 2 fewer than the next best plan in this category , the
Senate Democratic Caucus Plan ( which , unlike the Gressman Plan, splits the City of Pittsburgh )

. As compared to H

. B

. 2146, the Gressman Plan divides 5 fewer political
subdivisions , a nd it divides 9 fewer political subdivisions than the Carter P lan, whi ch also divides one more city

— Harrisburg

— than does the Gressman Plan. Consequently, t he Gressman Plan , uniquely , has the twin salutary benefit s of maintaining perfect population equality among c ongressional d istricts , while preserving the most number of intact political subdivisions within those districts

. This establishes, in my view, the plan’s superiority over all the others which our Court has considered. 6
For these reasons, I would have selected the Gressman Plan. Accordingly, I respectfully dissent.

5 In this regard, I agree with the majority that our Constitution does not set forth a hierarchical preference of the various types of enumerated political subdivisions which should be protected against splitting. See Majority Opinion at 33. As the m ajority notes, plans must be scrutinized to ensure that, as a whole, the number of political subdivision splits are minim ized in accordance with consideration of all relevant objective criteria

. Id. 6 There is no suggestion by any of the parties that the Gressman Plan , which yields at least two m ajority

- m inority d istricts , is violative of the Voting Ri ghts Act, see supra note 1, and I discern no such violation on the basis of this record

.