[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

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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

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No. 7 MM 2022

ARGUED: February 18, 2022
[J-20-2022] [MO: Baer, C.J.] - 2

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

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DISSENTING OPINION

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 plan

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 our Court sought, and, as a general matter, is one which 

our Court views as “unwelcome.” See Majority Opinion at 2 (quoting League of Women

Voters v. Commonwealth, 178 A.3d 737, 823 (Pa. 2018) (“LWV II”)). Nevertheless, 

whenever the legislative 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 upon, we will faithfully fulfill that solemn duty. LWV II, 178 A.3d at 822.

In exercising that duty, I respectfully reject the majority’s selection of the Carter 

Plan. Rather, based on my analysis of the neutral constitutional criteria we set forth in 
[J-20-2022] [MO: Baer, C.J.] - 3

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 those 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 

congressional redistricting plan comports with the four neutral criteria our Court 

articulated in LWV II 2is 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 Constitution3 – namely, that their vote is given full effect and not 

impermissibly 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 213-215. 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 congressional redistricting plan is shared equally by the 

Governor and the General Assembly. See LWV II, 178 A.3d at 742 (“Pennsylvania's 

 

1 As the majority recognizes, and as I discuss below, any plan we pick must also satisfy 

the requirements of the federal Voting Rights Act, 52 U.S.C. § 10301. LWV II, 178 A.3d 

at 817 n.72.

2 Congressional 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.”).
[J-20-2022] [MO: Baer, C.J.] - 4

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 entire 

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 submitted to this Court – including the Governor’s alternative proposed plan —

namely, that it is a plan worthy of thoughtful consideration. It 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, both plans stand on an equal footing and are equally worthy of “thoughtful 

consideration.”).

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 majority 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 legislative 

policies” that are nondiscriminatory, such as compactness, respect for municipal 

boundaries, preserving cores of prior districts, and avoiding contests 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-20-2022] [MO: Baer, C.J.] - 5

examine subordinate considerations. As the majority properly acknowledges, we 

recognized in LWV II that the four neutral criteria – contiguity, compactness, equal 

population, and splitting of political subdivisions – are the irreducible minimum 

requirements of Article I, Section 5 every redistricting plan must meet. See LWV II, 178 

A.3d at 816. Indeed, as the majority aptly terms 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); see 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, protection 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, assessment of

subordinate or secondary considerations such as partisan fairness, or whether a plan 

represents the least change from a prior congressional districting plan, is necessary only

when a court must choose among various plans that are equal with respect to their 

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.
[J-20-2022] [MO: Baer, C.J.] - 6

The Gressman Plan 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 oneperson, 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 districts be contiguous. 

 

4

In making this assessment, as does the majority, 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-20-2022] [MO: Baer, C.J.] - 7

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

congressional districts as is mathematically possible – one person – achieving ideal

population equality of each district at 764,864 or 764,865 persons per district.

Third, with respect to compactness, which is a measure of the geographic or 

geometric regularity of the congressional 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 Cut Edges. 

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 Governor 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-20-2022] [MO: Baer, C.J.] - 8

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 subdivisions, 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, and it divides 9 fewer political subdivisions than the Carter Plan, which also 

divides one more city — Harrisburg — than does the Gressman Plan.

Consequently, the Gressman Plan, uniquely, has the twin salutary benefits of 

maintaining perfect population equality among congressional districts, 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 majority notes,

plans must be scrutinized to ensure that, as a whole, the number of political subdivision 

splits are minimized 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 majority-minority districts, is violative of the Voting Rights Act, see supra note 

1, and I discern no such violation on the basis of this record.