LEXSEE

"AlC autionA s of. Jun 02, 2011

In re 1991 PENNSYLVANIA LEGISLATIVE REAPPORTIONMENT COMMIS-SION

Nos. 190, 1 91, 1 94,196, 1 97, 199, 200, and 201 E.D . Misc. Docket 1 991, Nos. 49, 50,51, 52, 53, 54, 56, and 57 M.D . Misc. Docket 1991, Nos. 1 24, 132, 1 33, 1 34, 135, 1 36,

137, 1 38, and 1 4 1 W.D. Misc. Docket 1991

SUPREME COURT OF PENNSYLVANIA

530 Pa. 335; 609 A.2d 132; 1 992 Pa. LEXIS 279

January 25, 1992, ArguedMay 1, 1992, Filed

SUBSEQUENT HISTORY: [ ***] ] Opinion May I1992 . Reargument Denied June 29, 1992 .

PRIOR HTSTORY: Order February 14, 1992.

Appeals of the ] 991 Pennsylvania Legislative Reap-portionment Comm ission's Final Plan

CASE SUMMARY:

PROCEDURAL POSTURE: Petitioner citizens chal-lenged the 1991 Final Plan devised by respondent Penn-sylvania Legislative Reapportionment Commission andadopted on November 15, 1991.

OVERVIEW: Petitioner citizens challenged a reappor-tionment plan written by respondent comm i ssion , whicha ltered the legislative and voting districts within thestate . The court approved the plan, notin g that it wasrestricted in its review to determining whether the planwas in conformance with the state and federal constitu-tions and the Voting Rights Act , 42 U S . C . S § 1971, ets eq. The court denied petitioners' request to declare aneffective date of the plan after the November 1992 elec-tion. Pa Const. art . 11 § 17 clearly established the effec-tive date of a reapportionment plan . The cou rt held thatthere was no requirem e nt that districts be redrawn insuch a manner that incumbent senator s remained re s i-dents o f th e ir redrawn d i st ri cts. Leg i s lator s , whos e of-fic es we re e l iminate d by th e plan , did not have a con st i-t ution a l ly protecte d in te res t in their political seat s, which

were not the private domain of the officeholder . Anyvacancies occurring as a result of the plan were to befilled by a special election . The court found that petition-ers ' allegations of gerrymandering were without meritand that the plan was consistent with the intent of theVoting Rights Act.

OUTCOME: The cou rt ruled that the final plan of re -spondent commission complied with all constitutionaland statutory requirements and that it was to be used forelections to the General Assembly until the next reappor-tionment was constitutionally required. The cou rt notedthat legislators did not have a private nor constitutionallyprotected interest i n their offices . The court held thatthere was no evidence of gerrymandering.

CORE TERMS: reapport ionment , s enator, election,senatorial distr icts , VOTING RIGHTS ACT, seat, ratio ,special election , elect, discriminatory, elected, votin g,political process, gerrymandering, reapport io n , senato-rial , deviation , incumbent, voter , compact , vacancy, vot-ing age, right to vote , qualification , candidate, declare,propo rtion, senate district, voting age , deprivation

Lex i sNexis(R) Headn o tes

Governments > State & Territorial Governments >F[ec[ions[HNI]Th e Constitution of thi s Commonwealth d i rect sthis Co u rt to entertain appeal s from an y aggrie ved pe rson

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5 30 Pa . 3 3 5 , *; 609 A .2 d 1 32, **;1 992 Pa. LEXIS 279 , ***

wi thin 3 0 days of the filing o f the fi nal plan. Pa . Const .Art TI L17(d) . "If th e appellant establ i shes that the finalplan is contrary to law , the Supreme Court shall is sue anorder remanding the pl an to the commiss ion and direct -in g the commission to reapport ion the Commonwealth ina manner not i nconsistent with such order." As the Con-stitufion clearly states, and as to prevail in their challen geto the fi nal reapportionment plan , appellants have theburden of e stablishing not that there exists an alternativeplan which i s "preferable " or "better" , but rather that thefinal plan filed by the Pennsylvania ReapportionmentCommission fails to meet constitutional requirements .

[HN4]An elected office is a public tru s t , n ot th e privatedomain of the officeholder . A member of the legislaturehas a profound responsibili ty to represent his constituentsin the form at i on of public policy in thi s state . He holdsoffice for the benefit of his constituents and is periodi-call y accountable to his constituents through the electoralprocess. A member of the legislature is thus subject tothe political process at all times This is properly so forthe public interest in the office far outweighs any privateintere st of the officeholder. An elected official can neverhave tenure in the same sense as an ordinary public em-ployee .

Constitutional Law > Congressional Duties & Powers >Census > General OverviewConstitutional Law > Equal Protection > Level of Re-viewConstitutional Law > Equal Protection > Scope of Pro-tection[HN2]The Equal Protection clause requires that a Statemake an honest and good faith effort to cons truct dis-tricts, in both houses of its le gislature , as nearly of equalpopulation as practicable ". The U . S. Supreme Court es-tablished a framework for states to reapportion legisla-tive districts built upon the notion that the overridingobjective must be substantial equality of populationamong the various districts . States have a legitimate in-terest to maintain the integri ty of various political subdi -visions, insofar as pos s ible , and provide for compactdistricts of contiguous territory in designing a legislativeapport ionment scheme . Because those two notions ofequality of population and integrity of political subdivi-sions necessarily con fl ict, the Court clearly establishedequality of population as the con trolling factor, hold i ngthat permitting deviations from population based repre-sentation does not mean that each local governmentalunit or political subdivision can be given separate repre-sentation regardless of population .

Constitutional Law > Congressional Duties & Powers >Census > Composition of the U.S. CongressGovernments > State & Territorial Governments >Elections[HN3]See Pa Const art . II , � 16 .

Governments > State & Territorial Governments >ElectionsGovernments > State & Territorial Governments > Em-ployees & OffrcialsGovernments > Strne & Territorial Governments > Leg-islatures

Governments > State & Territorial Governments > Em-ployees & Off'uiads[HNS]Elected officials' interest in their offices does notmerit constitutional protection .

Governments > State & Territorial Governments >Elections[HN6]See 25 P.S. § 2778.

Governments > State & Territorial Governments >ElectionsGovernments > State & Territorial Governments > Leg-islatures[HN7]The supreme court set out the following elementsto prove a case of gerrymandering : the plaintiff mustestablish: 1) intentional discrimination against an identi-fiable polit i cal group ; 2) an actual discr iminating effecton that group; and 3) a history of disproport ionate resultsappearing in conjunction with s trong indicia of lack ofpolitical power and the denial of fair representation.

Constitutional Law > Elections, Terms & Voting >General Overview[HN8]See 42 U S.C. S . § 1973 .

COUNSEL: Joe Gambescia, John J . Gambescia , Phila-delph i a , for petitioners in No . 191 E . D . Misc . Docket1991.

Stephen J . Harmelin, David H . Pi tt insky , Laurence S .Shtasel , Barbara A. Brown, Philadelphia , for Pennsyl-van i a Legislative Reappo rt ionment Com'n [at all cases] .

Ernest D . Preate , Jr . , Arty. Gen . [at all cases].

A rthur Levy , Media, David E. Landau , Philadelphia , fo rpetition e r i n No . 2 00 E. D . Misc. Docket 1 9 9 1 .

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53 0 Pa . 335 , *; 609 A .2 d 13 2,1992 Pa. LEXIS 279 , * * M

Russell Walker, pro se. William H . [ ***3 ] Lamb , West Che s ter, David Nor-cro s s , Washington, District of Columbia , fo r petitioner in

Ken Gorm ley , Executive Director, Leg islative , Reappor- No . 56 M . D . Misc . Docket 1991 .tionment Com ' n , Harrisburg, Barbara A . Brown, StephenJ . Harme lin , Dilwo rth Paxson Kalish & Kauffm an , Andrew S . Gordon , Aruthur Selifoff, Harri sburg, F . Jo -Philadelphia, Pennsylvania , for respondent in No . 124 seph Loeper , Drexel Hill , for petitioner in No . 57 M .A .W.D. Misc . Docket 1 991 . Misc. Docket 1991 .

Anthony J . Mart in, Martin and Martin , P . C ., Monroe-ville, for petition er in 132 W . D . Misc . Docket 1991 .

Stephen J . Harmelin, David H . Pittinsky, Barbara A.Brown , Philadelphia, Robert J . Cindrich, Chairman ,Com , of Pennsylvania, Pennsylvania Legislative Reap-port ionment Com'n, Harrisburg, for respondent in No .132 W .D . Misc . Docket 1991.

[ * * * 2] Jack W . Connor, Uniontown, for petitioner inNo. 13 4 W.D . Misc . Docket 1991 .

Barbara A . Brown , Stephen J. Harmelin , Dilworth Pax-son Kalish & Kauffman, Philadelphia , for respondent in134, 135 , 137, 141 and 1 38 W . D . Misc . Docket 1991 .

Thomas Rabbitt Zajac , Uniontown, for petitioner in No .135 W . D . Misc . Docket 1991 .

James T . Davis , John Purcell, Davis & Davis , Union-town, for petitioner in No . 136 W. D. Misc. Docket 1991 .

Robert J. Cindrich , Chairman Commonwealth of Penn-sylvania , Pennsylvania Legi slative ReapportionmentCom'n , Harrisburg, Stephen J . Harmelin, Barbara A .Brown , Philadelph i a , for respondent in No. 136 W .D.Misc . Docket 1991 .

Dante G . Bertani , Greensburg, for petitioner in No . 137W.D . Misc . Docket 1991 .

Dante G . Bertani, Greensburg, for petitioner in No . 141W .D . Misc . Docket 1991 .

John H. Broujos, Carlisle , for petitioner in No. 50 M .D .Misc . Docket 1991 .

Arthur Selikoff, Andrew S . Gordon , Harrisburg, for peti-tioner in No. 52 M .D . Misc . Docket 1991 .

Angelo T . Almonti , Allentown, for petitioner in No . 53M . D . Misc . Docket 1991 .

Frederick E. Charle s, County Sol . , Thomas M . Caffrey ,Deputy County Sol ., for petit i oner i n No . 54 M.D. Misc .Docket 1991.

Emory W. Buck, Lansdale , for petitioner in No . 196 B . D .Misc. Docket 199 1.

John Randolph Prince, III , Philadelphia, for petitioner inNo . 197 B. D . Misc . Docket 1991 .

J . Matthew Wolfe, Philadelphia, for petitioner in No . 199E .D . Misc . Docket 1991 .

Mary P . Plan, Philadelphia, David Norcross, Washing-ton , District of Columbia , for petitioner in No . 201 F.D.Misc . Docket 1991 .

Donald R . Walko , Jr ., Pittsburgh, for petitioner in No .133 W .D . Misc . Docket 1991 .

Dennis J . Miller, Michael J . Mortimer , Pittsburgh , forpetitioner in No . 138 W .D . Misc. Docket 1991 .

Nicholas Sellers , Villanova, David F . A . Norcro ss, LindaA. Long, Washington, Distr ict of Columbia, for peti-tioner in No . 190 E .D . Misc . Docket 1991 .

Bruce S . Marks, Philadelphia , for p etitioner in No . 194E . D . Misc . Docket 1991 .

William E. Miller, Jr ., Donald M . Lewis , IIT, Harrisburg,for petitioner in No . 49 M . D . Misc . Docket ] 99 t .

Eric B . Schnurer , Ph i ladelphia , for petitioner ( * # * 4] No .51 M . D . Misc . Docket 1991 .

JUDGES: Nix, C . J . , and Flaherty , McDermott, Zappala,Papadakos and Cappy , JJ . Larsen , J ., did not participatein the consideration or decision of these cases . Flaherty ,J,, did not part icipate in the consideration or decision ofNos . 190, 194, 196 , 199 and 20 1 E .D . Misc. Dkt . 1991;Nos . 49 and 51 M . D . Misc . Dkt . 1991 ; and No . 138 W . D.Misc . Dkt . 1991 . Papadakos, J ., did not part icipate in theconsideration or decision of Nos . 190 , 194 , 196 , 199 and201 E. D . Misc . Dkt. 1991 ; Nos . 49 and 51 M . D . Misc .Dkt . 1991 ; and No . 138 W.D . Misc . Dkt . 1991 .

OPINION BY: PER CURIAM; NIX

OPINION

CR3a7a

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[ M* I35] OPINION

NIX, C . J .

FA CTS

The Reapportionment Plan at issue is the third reap -portionment plan since the 1968 amendment to the Penn -sylvania Constitution that created the Legislative Reap-portionment Commission . See Pa. Const. Art . II & 17 .

The Legislative Reapportionment Commission con -sists of five members. Id. The majority and minorityleaders of the House and the Senate , or their appointeddeputies, choose the fifth member of the Commission asits chair . Id. If the Commission cannot agree on a chair,the Supreme Court is empowered by the Constitution toappoint [ *** 5] the [ *342] chair . Id. ' The Commissionacts by a majority of its members . ]d.

I This year the Supreme Court appointed RobertJ . Cindrich as chairman of the Legislative Reap-portionment Commission . See In Re Appoint-ment of Chairman of the Legislative Reappor-tionment Commission , Judicial AdministrationDocket No . 105A, May 6 , 1991 .

On September 25 , 1991, a majority o f the Commis-sion adopted the preliminary Legislative Reapportion-ment Plan. After objecti ons were filed by the petitionersand publicly heard at a meeting on October 9 , 1991, theCommission adopted the final plan on November 15,199 1. That plan is now the subject of our revi ew . Pursu-ant to Subsect i on 17(d) of Art icle TI of the PennsylvaniaConstitution, the above-captioned appellants filed ap-peals to this Court within thi rty days. See Pa. Const . Art.II & 17. On January 25, 1992 , oral argument was heardon twenty -three matters , and two matters were submittedon the briefs.

On February 14 , 1992, this Court entered an orderthat the Final Plan [ * * * 6 ] was not contrary to the lawand denied the appeals . In that order we s tated that anopinion would follow . '

2 Mr. Justice Larsen did not participate in th econs iderati on or decis i on of these cas es .

Mr . Justice Flaherty did not pa rt icipate in theconsideration or decision of Nos. 1 90 , 194 , 196 ,199 and 201 E . D . Misc. Dkt . 1991 ; Nos . 49 and51 M . D . Misc . Dkt . 1991 ; and No . 138 W . D .Misc. Dkt . 1991 .

Mr . Ju stice Papad akos did not participate inth e consideration or deci s ion o f Nos. 1 90 , 194 ,1 96 , 199 and 2 01 E.D . Mi s c . Dkt . 1 991 ; N o s . 49

an d 5 1 M . D . M isc . Dkt . 1 991 ; and No . 13 8 W .D .Mi s c . Dkt . 1991 .

ISSUES

The pres ent issu es before this Court are whether theF inal Plan comports with the Pennsylvania and UnitedStates Constitutio n s and the Voting Rights Act. 42U . S C § 1971 , et s eq. Twenty-five appellants raise anumber of si milar i ssues regarding different counties andre presentative and senatorial districts , These issues maybe characteri zed in the fo llowing ways :

1) Did the Reappo rt ionment Commission [ *** 7]violate the constitutional requirement of compactnessand contiguity [ * 343] and equali ty of population andthe prohibition against the division of political subdivi-sions unless absolutely necessary ?

2) Did the Reapportionment Commission's FinalPlan violate Federa l Constitutional law by deprivingvarious appellants of their rights under the FourteenthAmendment to the United States Constitution?

3) Does the Plan fail for lack of an effect i ve date, orin the alternative , may the court declare the effectivedate?

4) Is th e Reapportionment Commission prohibitedfrom renumbering even-numbered Senatorial Districts ina year in which odd-numbered seats are elected, in orderto avoid the possibility of a special election?

5) Does the Final Plan reflect political gerrymander-in g which deprive s two aspirants of their rights to run foroffice in their former districts?

6) Did the Final Plan violate provisions of the Vot-ing Rights Act , 42 U S.C § 1971, et seq. ?

[ **736] 7) May this Court order Discovery of theCommission members to determine motives for the Re-appo rt ionment Plan?

STANDARD OF 2EVIEW

[HNl]The Constitution of this Commonwealth di-rects this Court to ente rtain appeals [ * * * 8 ] from anyaggrieved person within thi rty days of the filing of thefinal plan . Pa. Const . Art. 6]7(d) . "If the appellantestablishes that the final plan is contrary to law, the Su-preme Court shall issue an order remanding the plan tothe commission and directing th e commiss ion to reappor-tion the Commonwealth in a manner not inconsistentwith such order ." Id. (emphasis added) . As the Constitu-tion clearly states, and as we have hold in the pas t , "toprev a il in th e ir ch a llenge to the fi n a l reappo rt i onmentplan, appellants h ave the burden of establi shing not ...that there ex i s t s a n a lternativ e pl an whi ch i s 'preferabl e 'o r' beTter ', but rath er that the fin a l pl an fi l e d by the Penn -

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s yivani a Reapportionment Commi ss ion fai ls to meetconstitutional requ irements." !n r e ReapportionmentPlan for Pennsylvania General Assemhly 497 Pa . 525,532["344 ] 442 A .2 d 661. 66 5 l 9 8l ; see a lso Ga nev Cummin s 41 2 U . S 735, 750 - 51 ("what is to happento the Master's Plan if a re sourceful mind hits upon aplan b ett er than the Master' s by a fracti on of a percentagepoint? Involvements l ike tho se must end at some pointbut that point constantly recedes if tho se who litigateneed only [***9] produce a p lan that i s marginally betterwhen measured aga inst a ri gid and unyieldin g populationequali ty standard . ") .

Our Cons titution empow ers the Leg islativ e Reap-port ionment Commission to reapport ion the Common-wealth . Fu rthermore , this Court may only unde rtake toreapportion the Commonwealth if the Commission hasnot filed a plan within the constitutionally prescribedtime limits , Pa . Const Art . II 6 17(Q) ; absent that , thisCou rt may only remand an unconstitutional plan back tothe Commiss ion for redraftin g. Id. at § 17(d) .

BACKGROUND

In the landmark decision recognizin g the link be-tween state leg islative apportionment and the right toequal protection under the laws of the state s in theFourte enth Amendment to the United States Constitu-tion , the Supreme Court of the United State s in Renyoldsv Sims 377 U S . 533 (1964) , h eld that "[HN2]the EqualProtection clause requires that a State make an honestand good faith effo rt to construct districts, in both housesof its le g i s lature , as nearly of equal population as practi -cable" . Id. at 577 . The Court established a frameworkfor state s to reapport ion legi s lative districts built uponthe notion that "the overridin g [ ** *10] objective mustbe substantial equality of population among the variousdistricts ." Id. at 579. The Court recognized that th e stateshave a legitimate intere s t "co maintain the integrity ofvarious political subdivi s ions, insofar as possible , andprovide for compact districts of conti guous territory indes igning a legislative apportionment scheme ." Id at97 8 . Because those two notions of equality of populationand inte gri ty of political [ * 345] subdivisions neces sar-ily conflict , the Court clearly establi shed equality ofpopulat i on as the controlling factor, holdin g that "permit-ting dev i ation s from population based representationdoes not mean that each local goverrunental unit or po-litical subdivi s ion ca n be given s eparate representationregardless of population . " Id. at 580-81 .

At the same time that the Supreme Court of theUn i ted States was reviewin g the state apportionment planof th e State o f Alabama , this Cou rt su sta ined the objec-t ion s o f Pennsy lvan i a voters to th e current reapport i on-ment statutes. In Butcher v. Bloom hereinafter referre d toas Seucher1 415 P a. 438, 209 A .2 d 55 6 (7 9G4�, this

Cou rt, hav ing heard oral argument on the case prior tothe fi ling of the [ * * * 11 ] opinion in Revnolds v . Simssupra• relied on the United States Supreme Court's rulingin it s disposition of the case. Thi s Cou rt reviewed Sec-tions 16 and 17 of Article II of the Pennsylvania Consti-tution of 1874 [* * 137] which governed the reappor-tionment of Senate and House districts in the Common-wealth after each federal decennial census . Id at 444209 A.2d at 559 . ' This the Fourteenth Amendment to theUnited States Constitution. Id. [ * 346] at 461-65 , 203A .2d at 370-571 . However, the finding was coupled witha new interpretation that the proh ibition of dividingwards, boroughs or townships in Section 16 must be"subject always to the overriding objective and mandatethat such district shall be 'as nearly equal in population asmay be: " Id. at 463, 209 A.2d at 570 (quoting Pa. Const.of 1874 , Art. II § 16). Likewise , the mandate in Section17 that "each county shall have a least one representa -tive" , Pa. Const. of 1874 Art. II § 17 , was interpreted "torequire that count ies with small population , if necessary,be joined with other counties for the purpose of electingand sharing a representat i ve . " Id. at 465 , 203 A .2d at571 . This interpretation of the Pennsylvania Constitution( *** 12] received the approval of the Supreme Court ofthe United States . Scranton v. Drew 379 U.S. 40 , vacat-ing Drew v. Scranaon 229 F Supo. 310 (M .D. Pa. 1964).,

3 Those two sections provide as follows :

Sec. 16 . Senatorial districts ; ratio

The State shall be divided into fifty senato-rial distri cts of compact and contiguous territoryas nearly equal in population as may be, and eachdistrict shall be entitled to one Senator . Eachcounty containing one or more ratios of popula-tion shall be entitled to one Senator for each ratio ,and to an additional Senator for a surplus ofpopulation exceeding three-fifths of a ratio, butno county s hall form a separate district unless itshall contain four- fifths of a ratio , except wherethe adjoining counties are each entitled to one ormore Senators , when such county may be as-si gned a Senator on less that four-fifths and ex-ceeding one-half of a ratio ; and no county shallbe divided unless entitled to two or more Sena-tors. No city or county shall be entitled to sepa-rate representation exceeding one-sixth of thewhole number of Senators . No ward, borough ortownship sha ll be divided in the formation of adis tr ict . The senatorial ratio shall be ascertainedby dividing the whole population of th e State byth e number fifty .

Sec . 17 . Re prese ntat i v e d istricts

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The members of the House of Representa-t i ve s s hal l b e apport ion ed am ong the severalcounties on a ratio obtained by div i ding the popu-l ation o f th e St ate a s as c ertain ed by the most re-cent United State s c ensus by two hundred . Everycounty containing less than five ratios shall haveone repres entat i ve for eve ry full ratio , and an ad-ditional re presentat ive when the surplus exceedshalf a ratio ; but each county shall have at leastone representative. Every county containing fiveratios or more shall have one representative forevery full ratio . Every city containing a popula-tion equal to a ratio shall elect separately its pro-port ion of the representatives allotted to thecounty in which it is located. Every city entitledto more than four representat i ves , and everycounty having over one hundred thousand inhabi-tants sha ll be divided into districts of compactand contiguous territory , each district to elect itsproport ion of representatives according to itspopulation , but no district shall elect more thanfour repre sentatives .

at 310, 2 16 A .2 d at 459 . In addition, th e Court orderedthat the 1966 plan remain "in force and effect until con-stitutionally altered . " Id.

In 1968 the citizens of Pennsylv ani a amended theConstitution , and merged former [**138] sections 16and 17 into the amended Section 16 . Pa . Const. Art . II &16 (as amended); see Commonwealth ex rel. S,ae cter v.Levin 448 Pa . l, 5 293 A .2d 15. 18 (1972 ) . This Sectionnow provides:

[HN3]The Commonwealth shall be divided into fiftySenatorial D istrict and two-hundred and three Represen-tative Districts , which shall be composed of compact andcontiguous territory as nearly equal in population aspracticable. Each Senatorial District shall elect one Sena-tor and each Representative Dis trict one Representative .Unless absolutely necessary , no county , city, incorpo-rated town, [ *** 15] borough, township or ward shall bedivided in forming either a Senatorial or Representativedistrict .

Pa. Const . Art . 2& 16 .

Pa . Con st . of 1874 Article II §§ 16 , 17 .[W + * 1 31

4 At the same time that this Court was hear ingButcher X, the United State s Di strict Court for theMiddle District of Pennsylvania had declared thatSection 16 and 17 of Articl e 11 of the Pennsyl-vania Constitution violated the Fourt eenthAmendment guarantee of equal protection in theUnited States Constitution . Se e 229 P . Supp . 310;Butcher 1, 415 A .2d at 443 n . 5, 203 A . 2d at 559n . 5 . The District Court enjoined state officialsfrom conduct ing the 1964 elections . A stay wasgranted on the District Court order pending ap-peal to the Supreme Court of the United States ,and that Court vacated the District Court's judg-ment based upon this Court's holding in ButcherI Scranton v . Drew. 379 U.S . at 42; see Butcherv . Bloom , hereinafter referred to as Butcher II420 Pa 305 308 n 7 216 A 2d 457 458 n . 71966 .

This Court ordered that the 1964 elections be heldaccordin g to the then existin g reapportionment scheme,but retained [*347] j urisdiction in the cas e . We declaredthat the reappo rtionment s tatutes were unconstitutional,and that the 1966 election could not be held under[ ^** 14] the unconstitutional statutes . Because of theinact i on of the General Assembly, on September 25,1 965, this Court proceeded to reappo rt ion the Common-wealth ; afte r rece iv i n g proposals from various part ies ini nter est , we adopted a n ew plan for the reapport i omnentof the s tate in to fifty Sen a t o ri a l D istri ct s and two hun-d red three Representative Districts. Butch er 1I 4 20 Pa.

DISCUSSION

After both the 1970 and 1980 Federal Census , thisCourt reviewed the constitutionality of the PennsylvaniaLegislative Reapportionment Commission Final Plans.See In re Reapportionment Plan for Pennsvlvania Gen-eral Assembly, 497 Pa. 525 , 442 A.2d 661 (1982) (here-inafter In re Reapportionm ent Plan) ; Commonwealth zerel Specter v. Levin 448 Pa. 1293 A.2d 15, appealdismissed, 409 U.S. 810 [ * 348] (19721 (hereinafterSpecter), In Specter, we held that "the 'overriding objec-tive' of any plan must be 'substantial equality of popula-tion among the various districts."' 448 Pa. at 13 293A.2d at 21 (quoting Revnolds v Sims 377 U . S . 533, 5791( 964)). We recognized the inherent conflict in the Penn-sylvania Constitution between the goal of equall y popu-lated districts and the d i rective against dividing anycounties , cities , incorporated towns , boroughs , townshipsor wards . In re Reapportionment Plan 497 Pa . at 535-36 442 A .2d at 666 .

With a fixed number of leg islative seats to be appor-tioned "as nearly equal in population [ *** 16] as practi-cable" and a "population density of this state [that] isquite uneven" in any apport ionment scheme there is ace rtain degree of unavoidable noncompactness and acertain amount of subdivision fragmentation [that] isinevitable.

Td. (quoting Spec ter 448 Pa . aC 17-18 , 293 A2d at 2 3) .We continue to hold the view that the equa lity o f popula-tion neces s itate s dividing polit i ca l subd i vi s i o n s. It woulddefy log ic to argu e th at countie s cann ot be divided to

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apport ion the s enatorial and th e representative districtswhen the ide al senatorial district population is 237 ,633 ,and the ideal representative district population is 58 , 531 ,yet fifteen counties have greater populations than thei deal senate district, and forty counties exceed the idealrepresentative dis tr ict population. See 110 Pa. Manual533 (1991)

The 1 99 1 Final Plan has a total popul ati on devi ationin its fifty senatorial districts of 1 . 87% from th e ide a lpopulati on of 237 , 6 3 3 . The population deviation for the203 representativ e districts i s 4 . 94% from the ide al popu-lation of 58,531 . Thi s plan compare s favorably with thefinal plans Specter and In Re Reapportionment Plan . '

5 Total Perc e ntage Deviation from Ideal DistrictPopulation (Ideal in Parenthe s es)

[ *** 17] appellants argue that the population equal-ity is not so important that it warrants the division ofcounties [ * 349] and other political subdivision. Theycite federal precedent which has upheld state reappor-tionment plans with variances of up to 16%. ° Appellantsargue that these cas es bind this Court to require greaterpopulations varian ce s to protect the s anctity of politicalsubdivision borders . Appellants are incorrect . The Su-preme Court of the [ ** 139] United States held that"some deviations from the equal population principle areconstitutionally permissible with respect to the reappor-tionment of seats in a state legislature." Reynolds v . Sims,379 U . S . at 379 (emphasis added), This lan guage merelyallows a state to apportion seats between districts that arenot strictly equal in population ; it does not mandate it .Our Constitution requires that the overridin g objective ofreapportionment is equality of population and in 1972and 1981 this Cou rt approved plans in which the overrid-ing objective was equali ty of population . We see no rea-son now in 1992 to retreat from those earlier holdings .

6 See Brown v Thom son. 462 U . S . 835 (1983)(average deviation of 16%) ; Gaffney v. Cum-mings , 412 U S. 735 (1983) (7 . 83% maximumdeviation) ; White v . Repester, 412 U.S. 7551973 (9 .9% maximum deviation).

[ * ** 18] EFFECTIVE DATE

state the effective date and therefore one appell an t whoseresidence is now outside of his senatorial district may notbe able to retain his office. The same appellant asked thisCourt to exercise its extraordinary jurisdiction to declarean effective date of the Plan after the November 1992election .

[ * 350) The Constitution of the Commonwealth ofPennsylvania is very clear on the effective date of a Re-apportionment Plan. Pa. Const . A rt . II § 17(e). It states inpert inent part:

"When the Supreme Court has finally decided on anappeal or when the last day for filing an appeal haspassed with no appeal taken, reapportionment plan shallhave th e force of law and the districts therein providedshall be used thereafter in elections to the General As-sembly until the next reappo rtionment as required underthis section 17 ."

Id (emphasis added) .

Appellants request that we declare the e ffective dateto be after the 1992 election with respect to those senato-rial districts that are not slated [ *** 19J for general elec -tion in 1 992, i.e ., the even numbered Senatorial Districts .We have no power to grant that relief as our Constitutionsets the effective date of the plan as above. The effectivedate of this plan was February 14 , 1992, the day that thisCourt issued an order dismissing the above appeals . '

Appe llants rai s e th e i ssue of the effective date of the199 2 Reapp ort ionment Plan . No arguments are raised .First , th e p lan i s unconstitutional because it does not

7 Appellant Lewi s rai ses a residency issue aswell in hi s appeal from the fin a l plan , and al legesthat it will be impo s s ibl e for an i n cumbent sen a-

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tor to have re s ided in his district for a ye ar beforethe election , and for all four years of his tenure(as mandated by the Constitution) if the Senato-rial D i strict S are altered by the Reapp ort ionm entCommiss ion . This issue is not y et ripe for reviewbecause no senator has s uffered adverse conse-quences in the form of losing a seat for fai lure tos atisfy the residency requirement. However, wewould note that the cons titutional residency re-quirements may conflict with the con stitut i onalmandate of reapport ion in g the Commonwealthevery ten years . In light of that conflict, it may benecessary that residency requirements be waivedwhen the Commission reapportions the Com-monwealth less than one year before an election.These issues and possible resolutions are for theSenate to decide. See In re Jones, 505 Pa. 50, 476A2d 1287 (1984). This Court will reserve rulingon this issue until such time that a part icular partysuffers injury at which point we wi ll address theapparent conflict between the constitutional pro-visions.

[***20] 44TFI DISTRICT

The Final Plan includes a new Senatorial DistrictNo. 44 comprising parts of Chester, Lehigh, Berks andMontgomery [*351] counties . The former SenatorialDistrict 44 in Western Pennsylvania was merged withDistri ct 43 . District 44, as an even-numbered District, isnot slated for a general election until 1994 . See 25 P.S. §2209. Appellants Senator Frank Pecora, Republ icanCommittee of Chester County , and Senator F . JosephLoeper argue that the new district must be odd-numberedto prevent a lapse in representation . The Commissionresponds with the argument that neither this Court northe Commission has the authority to declare the 44thDistrict vacant , but only the Senate has the power . Fur-thermore , the Commission argues that th e citizens inDistrict 44 will not be deprived of a Senator because aspecial election may be called in the event of a vacancy .See 25 P.S . & 2778.

Appellants argue that the staggered election man-dated by Section 2209 of the Election [**1401 code , 25P.S. & 2209 , will be interrupted by the creation of a neweven-numbered district. They argue that the only time theelection scheme was interrupted was in 1966 when thisCourt reapportioned the Commonwealth [*** 21] andordered that the Senators from the odd numbered-districts be only elected for two years . See Butcher 11.420 Pa. at 310, 216 A .2d at 459. Appellants argue thatonly when this Court declares a prior plan unconstitu-tional and undert akes to reappo rt ion the Commonwealthitself may the terms of office be shorten ed . Becaus e thisCourt had declared in 1 964 that th e plan wa s unconstitu-tional, Butcher 1, 419 Pa , at 4 5 5 and 468 , 2 03 A .2d at

566 and 57 3, the can didate s and in cumben ts were onno tice that their terms may be truncated.

The Constitution clearly stat es that "th e reappor-tionment shal l have the force o f l aw and the distr ictstherein provided sha ll be used therea fter in electio n s tothe General Assembly until the next reapportionm ent asrequiredunderthis Sectlon ] 7. "Pa Const. ArC . II 17(e(emphas i s added) . The Constitution does not state "i frequired ." Thus on its face the Constitution clearly estab-lish es a termination data for th e reappo rtionment plan .Nowhere in Section 17 is there authorization to continueto use a prior [ *352] plan, an d if the Commission failsCo produce a plan within the prescribed time limit , "theSupreme Court shall immediately proceed on its ["* *22]own motion to reapport ion the Commonwealth." Pa.Const. Art . II § 17( . Therefore, each Senator, whetherin an odd- or even-numbered District, is on notice after aFederal Decennial Census that the prior reappo rtionmentplan is no longer effective and the new districts may bedrawn in a manner that separates the Senators' districtsfrom their residences, Senator Pecora's and SenatorLewis' appeals are similarly grounded in the fact that theSenators' residences are no longer located within thesenatorial districts that they represent . Their only differ -ence is one of degree , i.e . , Senator Pecora lives hundredsof mile s away from his district, while Senator Lewis onlylives in the neighboring distr ict . However , the result isexactly the same . The distri cts in question are not slatedfor election until 1994 yet neither district has its dulyelected senator residing within its borders .

Our review of the Plan is limited to those enumer -ated constitut i onal requirements in Section 16 of Art icle11 of our Constitution. That Section does not include arequirement that all senatorial distr icts be redrawn insuch a manner that incumbent senators remain residentsof their redrawn districts . [ ***23] The party leaders ofboth houses of the General Assembly adequately repre-sent the interests of incumbents and it i s within their solediscretion as members of the Legislative Reapport ion-ment Commission to consider those interests when re-numbering and redrawing the legislative districts .

In addition, Senators Pecora and Lewis are notautomatically expelled from their Senate seats by theCommission's acti ons . Only the Senate has the authori tyto judge the qualifications of its members . In re Jones,505 Pa. 50 58, 476 A.2d 1287 1290-91 (1984) ; s ee Pa .Const. Art . 11 & 9 . In Jones we held :

A rt icle II is concerned with the composition , powersand duties oFthe legisl ature . Nothing in this art icle evenremotely suggests the conferrence of jurisdiction uponthe [ * 353 1 cou rts Co test th e qualificat i ons o Fthe mem-be rs of the General Assembly . Inde ed , S ec t ion 9 o f Arti -c le II expre s sl y s ta te s that each bo dy of t he Gener al As-

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sembly shall be the judge of the qualifi cat i on s o f i tsmembers.

In re Jones 505 Pa. at 5 8 4 76 A.2d at 1291 (footnoteomi tt ed) . Thus the S enators incorre ctly characterize theCommission 's actions as deprivin g the Senators of theiroffices.

Assuming [ ** * 24] that th e Senate does not seatSenators Pecora and Lewi s, nonethele s s the Senators arenot being deprived of a constitutionally protected inter-est . Appellants' interest in their offices is a "highly cir-cumscribed" interest . Sweenev v Tucker. 473 Pa . 493 ,524 , 375 A .2d 698.713 (19771 . [ * *141 ]

[HN4]An elected offi ce i s a public trust , not the pri-vate domain of the officeholder. A member of the Legis-lature has a profound responsibili ty to represent his con-stituents in the formation of public policy in th is state .He holds office for the benefit of his constituents . . .[and] is periodically accountable Co his constituentsthrough the electoral process. . . . A member of the Leg-islature is thu s subject to the political process at all times.

. This is properly so for the public interest in the officefar outweighs any private interest of the officeholder. Anelected official can never have tenure in the same senseas an ordinary public employee .

Id. Thus as we have held in the past, [HNS]etected offi-cials' interest in their offices does not merit constitutionalprotection . Id. Se e also In re Reapportionment of theSchool District of the City of Pittsbur)& 507 Pa. 128,[** *25 1 488 A.2d 1106 (1985) (school directors have nolegal right to serve out their elective terms supercedingneed for reappo rtioning of school districts) ;Commonwealth v. Moir, 199 Pa . 524, 49 A. 351 (1901);Lyons v. Citv of PittsburQh 1 37 Pa . Commw. 130, 586A .2d 469 , allocatur denied, Pa. 593 A .2d 845(1991).

These appellants , and the Republican Committee ofChe ster County and Senator Loeper raise the argumentthat ( * 354j the citizens of the Sixth and Forty -fourthSenatorial Distr icts will be without senators for the nexttwo years and will be deprived of the right to petition thegovernment for redress of their grievances . This argu-ment also fails .

If the Senate will not s eat Senators Pecora andLewis , the citizens of the dis tr ict will be represented inthe Senate by operation of the special election statute .Se e 25 P . S . 2778 . a Anytime a vacancy occurs in a leg-i s lative district, the presiding officer of the house is re -quired to call for a spe cial elect i on. Id. This is regardlessof th e und erlying cause of the vacancy , be it d e ath , res-ignation o r expu ls i on . It i s to b e noted that the appellantsare n o t argu i n g tha t th e sp e cial e l e ction statute its elf

[***26] i s an unconstitutional deprivation of the citi -zen ' s r ight to e l ect l egis lato rs and to petition the govern-ment for redress of grievances . No persuasive reason hasbeen offe red to h o l d that th e special e lection statute in itsapp l ication to a vacancy created by the reapportionmentis unconstitutional. '

8 [HN6 ] § 27 78 . Special election s for Senatorand Representative in the General Assembly

Whenever a vacancy shall occur in eitherhouse of the General Ass embly whether or not itthen be in session , the presid ing offi cer of suchhouse shall issue a writ of election to the propercounty board or boards of election and to the Sec-retary of the Commonwealth , for a special elec-tion to fi ll said vacancy, which election shall beheld on a date named in the wr it, wh i ch shall benot less than sixty (60) days after the issuance ofsaid writ . The pre s iding officer may fix , in suchwrit of election , the date of the next ensuing pri-mary, municipal or general election as the datefor holdin g any such special election : Provided,however, That should the Governor after the is -suance of said writ of election advise the presid-ing officer that the General Assembly will becalled into extraordinary session prior to the dateset for such special election , the presiding officemay countennand the writ theretofore issued andshall issue a new writ of election , fixing thereinsuch earlier date the re for as is deemed expedient,but which shall not be less than sixty (60) daysafter the is suance of said writ .

[***27]9 This Cou rt ha s never addressed the constitu-tionality of the special election statute for mem-bers of the General Assembly . However, in ananalogou s case, the United States Court of Ap-peals for the Third Circuit upheld as constitu-tional the special election statute governing atemporary vacancy in a United States Senate seat .Trinsey v. Commonwealth of Pennsvlvania , 94 1F.2d 224 (3rd Cir . ) rev 'g 766 F. Supp. 1338 (E . D .Pa . ), cert. denied, U . S . 60 U.S.L.W. 3376(1991 ) .

[ * 355] GERRYMANDERING

Appellants' claims may be categorized as a denial ofaccess to the political process . They include a claim ofpolitical gerrymandering , a claim of deprivation of freeand equal elections , and a v i olation of equal protectionunder the State and Federal Constitutions . The s e argu-ments fail .

Th e Suprem e Cou rt of the Un ite d Stat es in Davis v.Bandenz er 47 8 U . S . 109 ["*1 42) (1986), addresse d th e

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political ge rrym ander i n g i ssue in the Indiana GeneralAssembly 's Reapportionment P l an afte r the 1980 cen su s.In that cas e, the Court uph e ld the General Assembly'splan which alleged l y disadvantaged [***28] the Democ-ratic Party . The Court he ld that a po l itical gerrymander-ing claim was a justiciable que stion and that members ofone political pa rty could brin g a c ause of action underthe 14th Amendment to the Constitution of the UnitedStates Constitution alleging that their votes had beenintentiona ll y rendered ine ffective to elect the representa -tive of their choice . Id at 126-28 . The Court however ,reversed the Distr ict Court's verdict in favor of the De-mocrats because they had failed to establish a case . Id_at143. [HN7]The Court set out the following elements toprove a cas e : the plaintiff must establish : 1) intentionaldiscrimination against an identifiable political group; 2)an actual discriminating effect on that group ; and 3) a"history of dispropo rt ionate results appearing in conjunc -tion with strong ind i cia of lack of political power and thedenial of fa ir representation . " Id. at 139 . This Court ispersuaded by the holding of the Supreme Court of theUnited States with regard to the elements o f a prima fa-c ie case of pol i tical gerrymandering. No appe llant herewho rai s es a political gerrymandering claim has estab-lished the requisite elements under the three - pa rt test[***29] as set forth in Davis v Bandem er , supra .

Appellants Jones' and Robe rt s ' claims of politicalgerrymandering fail because they are individual candi -dates [ * 356] seeking to run against incumbents withoutany evidence of their being part of an identifiable groupsuffering a histo ry of disen franchisement or lack of po-litical power . There is no precedent in thi s state nor inthe Federal Courts for a claim arising from the depriva-t i on of an individual's right to run for a part icular officenor of a citizens' right to vote for a specific individual.

Appellants claim that the plan violate s the constitu-tional mandate that "elections shall be free and equal ;and no power, civil or milita ry, shall at any time interfereto prevent the fre e exerc ise of the right of suffrage . " Pa.Const Art . I& 5 . This pl an does not violate Section 5 ofArticle I of our Const i tution . This Cou rt has de fined Sec -tion 5 i n the following manner :

'Elections are free and equal within the meaning of theConstitution when they are publ i c and open to all quali-fied electors alike ; when eve ry voter has the same ri ghtas any other voter ; when each voter under the law has theright to cast his ballot and have it honestly [ *** 30]counted ; when the regulation of the ri ght to exercise thefran chise does not deny the franchise itself, ... and whenno constitutional right of the qualified elector is sub-verte d or denie d h im . '

Citv Council of Citv of Bethleh em v Marcincin 51 2 Pa .1, 8, 515 A.2d 13 20 1 23 2 (1986) (quoting Shankev v.Staisey, 436 Pa. 65, 69, 257 A.2d 897 , 898 (1969) , cert.denied, 396 S 103$ 197_0)1. Using this analysis , wefind that the Commiss ion' s final plan in no way deprivesAppellants or any citizens of this Commonwealth of theirright to free and equal elections. A candidate's interest ina speci fi c offi ce can only be less than the incumbent'sinterest , which has already been characterized as "highlyc ircumscribed" . Sweeney v. Tucker, 473 Pa. at 524. 375A .2d at 713 . The aspirant has a right to run in his districtfor any office for which he is qualified; however, hisright to run for offi ce doe s not rise Co a constitutiona ll yprotected level requiring the Legi slative Reapportion-ment Commission to tailor its plan around the residencesof [*357] political aspirants who seek to challenge aspecific incumbent .

VOTING RIGHTS ACT

Several appellants raise objections to the [ *** 31]Final Plan based upon the Voting Rights Act, 42 U.S.C.& 1971 et s eg . 1988 . The s pecific s ection implicated isSection 2 of the Act which provides :

(HN8]

[** 143 ] § 1 973 . Denial or abridgement of right tovote on account of race or color through voting qualifica-tions or prerequisties; establishment of violation

(a) No voting quali fi cation or prerequisite to votingor standard, practice, or procedure shall be imposed orapplied by any State or political subdivision in a mannerwhich results in a denial or abridgement of the right ofany citizen of the United States to vote on account ofrace or color , or in con travention of the guarantees setforth in section 1973b( fl (2) of this title , as provided insubsection (b) of this section.

(b) A violation of subsection (a) of' this section is es -tabli shed i f, bas e d on the totality of circumstances , it isshown that the political processes leading to nominationor election in the State or political subdivision are notequally open to participation by members of a class ofcitizens protected by subsection (a) of this section in thatits members have less opportunity than other members ofthe electorate to participate in the political process[ *** 32j and to e lect representat i ves of their choice. Theextent to which members of a protected class have beenelected to office in the State or political subdivision isone circumstance which may be considered : Provided ,That nothing in this section establ i shes a right to havemembers of a protected class elected in numbers equal totheir proportion in the population.

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42 U . S . C . & 19 7 3 (1988) . The United States Su-preme Court descr i b ed the intended s cope of th e sectionas follows :

Subse cti on 2 (a) prohibi ts all States and politicalsubdivi s ions from impos ing any voting qualificat i ons orprere qui s ites [`358] to voting , or any standards , prac -ti ce s, or procedure s which result in the denial or abridg -ment of the ri ght to vote of a citizen who is a member ofa protected cla ss of racial and language minorities. Sub-s ect i on 2(b) e stablishes that § 2 has been violated wherethe "totali ty of the circumstances" reveal that "the politi-cal proces ses leading to nomination or election . . . arenot equally open to participation by members of a[pro-Cected class] ... that its members have less opportunitythan other members of the elector ate to participate in thepolitical process and to elect representatives [* ** 33] oftheir choice."

Thornburg v . Ginples . 478 U . S . 30, 43 (1986) (quoting42 U . S .C . 19730) .

It must be recogn i zed that Appe ll ants Loeper , et al.,are not bringing an action for relief under the VotingRights Act , but rather they are chal l enging the proposedplan on the ground that it does not conform with the Act.

' ° They ass ert that the establi shment of m inority/majoritydistricts can only be satis fi ed by providing for the crea-tion of di s tricts which provide the minority/majority dis-trict w ith a 65% minori ty population . They argue that theFinal Plan (with 60% to 62% proport ions) fails to com-ply with the provisions of the Act and , therefore, must berejected in favor of the plan they offer which establishesthe required 65% proport ion under the Act. They charac -terize the districts [ *359] created under the Commis-sion's plan as minority influence districts, thus assumingthe premise they seek to establish. The question pre-sented for our resolution is whether the Commission'splan is defective in this regard . Thus the lynehpin of theAppellants' argument i s that, absent the e stablishment[ ** 144 ] of a 65% minority population , the Commis-sion's plan is fatally flawed and thus mus t be rejected .[ ***34] For the reasons that follow, we fi nd this asser-tion to be without merit .

10 Appellants Clarence Thompson , Leroy Greenand Henrietta Benne tt all raise claim s under Sec-tion 2 of the Voting Rights Act as "aggrievedpersons", 42 U . S .C . 1973 . While it is true thatthey s atisfy the standing requirements , seeRobert s v Wamser , 883 F .2 d 617, 621 (8th Cir .1989 ( " those seeking judicial enforcement of theprohibition against the infringement of the ri ghtt o vote on account of race"), they are not in thep r o p e r forum to prosec ute a cla im under th e vot-

ing Rights Act. See 421J. S . C . § 197 1(d) (grantin gjurisd i ction to the United State s District Courts ) .

Our Con stitution requires thi s Court to de-termine whether " th e plan i s contrary to law ." Pa .Const . A rt . IL § 17(d) . Therefore, the plan mustbe in accord with both State and Federal Law . Inthis instance it i s being argued that Federal Law(i.e., the Voting Rights Act) would be violated bythe final plan . Thus , we are called upon to ad-dress the legitimacy of the appellants' claim. Forthe reasons set forth in the text, it is our view thatthe plan is not contrary to the Voting Rights Act.

[ * * * 35] The Voting R ights Act, 42 U . S.C . &&1971-1974 , as amended in 1982 , established a statutorycause of action which recognizes claims charging that a"standard , practice , or procedure" results in discrimina-tion on the basis of race . 42 U.S .C . & 1973 (hereinafterreferred to as Section 2 of the Voting Rights Act) . I n1982 , Congress amended Section 2 of the Voting RightsAct in response to the United States Supreme Cou rt deci-sion in City ofMoGi[e v . Bolden 446 U . S. 55 (1980).

In Bolden, a class action was successfully brought inthe United States District Court for the Southern Districtof Alabama on behalf of the Black residents of the Cityof Mobile . The suit alleged that the City's practice ofelecting commissioners at larg e by majority vote unfairlydiluted the voting strength of Blacks in violation of theFourteenth and Fifteenth Amendments of the FederalConstituYion . Id. The District Cou rt found the City's planunconstitution al, and the United States Court of Appealsfor the Fifth Circuit affirmed the District Court's ruling .Id at 58. On appeal , the United States Supreme Court,although unable to agree on a majority opinion , reversedthe decision of the [* * *36] United States District Court .Justice Stewart, in an Opinion Announcing the Judgmentof the Court, joined by then Chief Justice Berger andJustices Powell and Rehnquist, reasoned that, once thecou rt below found that Blacks could register and votewithout hindrance, it was error to find that the FifteenthAmendment was offended . Id at 65 . This conclusionwas based upon the premise that the Fifteenth Amend-ment does not guarantee [ * 360] the right to have Blackcandidates elected , but prohibits only intentionally dis-criminatory denial or abridgment by the govern ment ofthe freedom to vote on account of race . These justicesalso found no purposeful discrimination in the votingpractices under the guarantee of equal protection underthe Fou rt eenth Amendment in view of the failure of theevidence presented to establish that the at-large votingpractice was a purposeful device to fu rther racial dis-criminati on . Id. at 74 . "

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11 Ju sti ce B lackman concur red in the resul t, id.at 80 , and Justice Stev ens concurred in the jud g-ment, Id. at 83 .

( ***3 7] In di ssent, Mr . Justice Mars hall articulatedthe view that proof of a discriminatory purpose to sup-port a cla im of vote dilution in violation of the Four-Ceenfli and Fifteenth Amendments is not n e ce s sary. Id_af1 03 - 105. To the contrary , he reasoned that the City's at-large electoral scheme was violative of the Fourteenthand Fifteenth Amendments since it had the unconstitu-tional effect of diluting the Black vote . " He reasonedthat even if it were necessary to support a claim underthese constitut ional amendments with a showing of dis-criminatory purpose, that requirement had been satis fiedby showing that official action was produced by perva-sive racial bias as shown in the evidence in the case un-der consideration .

12 one distinction between the opinion of theCourt and the dissenting opinion of Mr. JusticeMarshall is that Mr . Justice Marshall character-ized the ri ght to cast an effective vote as funda-mental. As a result , the deprivation of a funda-mental right requires strict scrutiny without anyshoving of discriminatory purpose . This differsfrom the plurality's decision that the only funda-mental right is participation on equal footing withother voters. There is no constitutional right toequal representation for identifiable politicalgroups , and, therefore, a deprivation of the rightCo equal representation based upon racial consid-eration must be accompanied by a discriminatorypurpose in order to merit strict scrutiny.

[ *** 38] Justi ce Brennan dissented and agreed withJustice Marshall that proof of a discriminatory impactwas sufficient in the matter then before the Court andalternatively that discrim i nato ry intent had been proven .Id. at 94 . Justice White also in dissent expressed the view[ * 361 ] that discriminatory purpos e could be and hadcorrectly been inferred from the [**145] evidence ofdiscriminatory impact. Id. at 94 - 103 .

Fo ll owing the Bolden decision , " the Supreme Cou rtin Thornburg7 v Ginrler 478 U.S. 30 (1986), set forththe elements that must be established by plaintiffs todeclare a plan violative of the Voting Rights Act . TheCourt required the plainti ffs to show that :

as a bloc to enable it ... u su all y to de fe at th e m i nority 'sprefeired candidate .

Id at 50 - 51 (Citation s and footnote omi tted) .

1 3 As a result of the Bolden decision, Congress ,in 1982, amended the Voting Right s Act and cre-ated what is now known as the "results test". TheSupreme Court , in 1986 , interpreted the "resultstest" for the first time after the amendment inThornbura v. G i ngles 478 U S 30 (1986) .

[*** 39] We will first address the complaint beingraised Co the Plan as it relates to the Senatorial Districtsrepresenting the City of Philadelphia. Appellants arguethat the pl an for Philadelphia fails to provide for anyminority/majority districts where the minority populationWarrants such districts . Specifica lly, appellants arguethat the plan drafted by the Commission has no "classic[Senatorial] minority/majority distr i cts." Appellants ar-gue that the Commission "delib erately created a retro -gress i ve plan resulting in the destruction of the threeexisting minority/majority s eats and replacing them withfour minority influence districts . " Appe ll ants furthercharge that their proposed plan included four "classic"minority/majority senatorial districts within Philadelphia.

[*362] Prior to the 1991 reapportionment, three outof the seven Senatorial Districts from Philadelphia wereminority/majority dis tr icts , each being represented byBlack senators . " The plan proposed by the Commissionalso provides for a fourth minority/majority senatorialseat for Philadelphia . In both the Commission's plan andthe plan proposed by the petitioners, the four proposedSenatorial Districts would contain a[ ***40 ] majority ofvoting age minorities. The issue being raised is the sizeof the minority 's voting age proportion that is requiredunder section 2 of the Voting Rights Act to be classifiedas a minority/majority distr ict .

14 The Third Senatorial District is currently rep-resented by Senator Roxanne H . Jones, the Sev-enth Senatorial District is currently representedby Senator Chakah Fattah, and the Eighth Senato-rial D is trict is currently represented by SenatorHardy Williams. l10 Pa . Manual 95-96 (1991).None of the present incumbents have joined inthe instant attack upon the Commission's plan,nor have they evinced in any way their concur-rence in the alleged concerns .

First, the m i nority group must be able to demonstrateth at it i s sufficiently large and geographically compact toconstitut e a majority in a single number d 'astrict .... Sec-ond, the mino ri ty group must be able Co show that i t isp o l i ti ca lly cohesive. . . Third, the minority must be ableto demonstrate th at the white major ity votes s uffi ci ently

It must be emphasized that the scope of th e instantcha ll enge is very narrow. The tes t that has bean estab-lished for determining the viability o f the Commiss ion'splan is whether or not the plan m ee ts constitutional re-quirements . Pa. Const. Art. II 1 7 (d) . Th e mere fact thato ther pl an s may be offered is o f no m om en f , unl ess ap -

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pe l lants esta bli sh [ M"*4 1] that the plan submitted by th eII SCommission i s "contrary to law ." Pa. ConsY . Art.

17 d ; s ee In Re Reappo rtionment Plan, 497 Pa . at 932,442 A .2 d at 66 5 ; see als o Ga fn ey v. Cummings. 41 2U . S. at 750- 5 1 . Once that plan i s found to meet constitu-tional mandates, the issue of the merits of any proposedplan is irrelevant . Id.

The issue to be focused upon is the interpretationsought by appell ants to determine when a group i s to beconsidered "sufficiently large and geographically com-pact to constitute a majority in a single member district .

. ." Thornburp v GirxQles 478 U.S. at 50 (1986) . Appel-lants insist that this requires the creation of districts with65% minority populations. The Commission's plan cre-ated four minority/majority distr icts ranging from 60%[*363] to 62% of minority population (56% to 58% vot-ing age population) . There is no requirement under Fed-eral law for a 60% [* * 1461 to 65% minority population;indeed in Mississippi Republican Executive Committee v.Owen H. Brooks et al 469 U .S . 1002 (MemorandumOp i nion), affg Jordan v Winter 604 F Supp. 807 (N.D .Miss. 1984), the Supreme Court of the United Statesaffirmed the reapportionment plan of the [ *** 42] UnitedStates Distr ict Court for the Northern District of Missis-sippi which created a second minority district with a ma-jori ty of 52 . 8% black voting age population . " Here theCommission ' s final plan provides for four (4) minor-ity/majority senatorial districts in Philadelphia, rangingin Black voting age population percentages from 56% to58% . The Philadelphia Senatorial Delegation under thenew plan would consist of seven (7) Senators , three (3)of whom also represent areas from counties surroundingPhiladelphia county, Clearly the Commission has at-tempted to increase minority representation by creatingfour (4) minority/majority senate seats in Philadelphiawhereas the prior plan included only three (3) minor-ity/majority seats.

15 The 63% figure has been used by the De-partment of Justice as a benchmark for preclear-ance procedures when a state submits its reappor-tionment plan to the Department of Justice forapproval. United Jewish Or anizations Inc. v .Carey. 430 U.S . 144 (1997); Bybicki v . StateBoard of Elections of Illinois, 574 F.Supp . 1147 ,1149 n.4 (N . D. Ill . 1983) . However, this 65%benchmark has never been required by the courts ,part icularly in a district or state which has notbeen the subject of a deteimination by the Attor-ney General under 42 U.S.C . $ 1973(b) that testsor devices are maintained to deny or abridge theri ght to vote based upon racial consideration s.Therefore, th ere is no re ason nor author i ty for thisCou rt to re cogni ze th is b en chmark in the presentappea l .

[ * * *43 ] One of the intent s of Congress in its p a s-s age of the Voting R i ghts Act and its subsequentamendments was incorporating minor i ty voters into theentire political proc ess . See Thornburg v . Gingles, 446U. S . at 36 -38 . This intent can bes t be served by havingthe greatest number of minority/majority districts possi -ble . The statutory lan guage prescribin g minority partici-pation in the political proces s is maximized when thereare more and [* 3 64 ] not fewer opportunities for minori-ties to elect representatives of their choice . '° While inthis instance both plans could provide four senate seats inminority/majority districts, the plan adopted by theCommission provides for the optimum distribution of theBlack population in a manner that would support elect ingor influencing additional representatives of their choice .

16 The inability of Blacks historically to exer-cise the right to vote granted by the FifteenthAmendment was not the result of apathy, butrather from the Black voters' inabili ty to over-come barriers set up by hostile Whites which i n-cluded poll taxes, literacy tests, intimidation , vio-l ence and other schemes more subtle to discour-age their part icipation .

[ ***44] The 1991 plan , which creates an additionalminority/majority senatorial district is based on the as -sumption that minority/ majority district requirementsare s atisfied where the Black voting age population ismaintained between 58% and 56% . The plan provides forSenate District No. 3 which will have a Black populationof 60 . 63% and a Black voting age population of 58% ;Senate District No. 4 which will have a 61.52% Blackpopulation and a Black voting age population of 58% ;Senate District No . 7 with a Black population of 61.81%and a Black voting age population of 58%; and finallySenate District No. 8 with a Black population of 60 . 14%and a Black voting age population of 56%. Thus the ul-timate result is that Blacks voters would have the oppor-tunity to enjoy majori ty status in four (4) of the seven (7)Philadelphia senatorial districts. This result clearly fitswithin the intent of the Voting Rights Act.

Appellant Loeper also argues th at the Commissionfailed to create a minority influence senate seat in Pi tts-burgh . A minority influence claim is one "brought by aminority group, not sufficiently large and compact toconstitute a majority in a single-member di strict andthereby [ ***45] elect the candidate of their choice, butsufficiently large and geographically cohesive to influ-ence elections . " Thornburu v . Ginnles 478 U . S . 30 , 46n . 12 (1986) . See Chisom v. Roem er, 501 U.S. n 24[* "1 47] 115 L . Ed. 2d 348, 364 n.24 [ * 365] (1991);McNe il SprinQreld Park District, 85 1 F . 2 d 9 3 7 , 947(7th Cir . 1988), cert . de nied, 490 U . S . 1 031 (1989) . Th isclaim has been rai sed in th e fe d e ral c o u rts and co n s i s-

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53 0 Pa . 33 5 , �; 609 A.2d 1 32, **;1 992 Pa . LEXIS 279 , " * '

tently d enied as nei ther con stitut io n ally nor statutorilyrequired. See, e.g, Ch isom, supra; McNeil sunra' buts ee, Armour v State of Ohio 775 F Supp . 1044 (ND .Ohio 1991) . " This Court , limite d in i t s revi ew of th eplan to the constitutional and statutory requirements, isprovided no authority to asce rt ain the appropriate popu-lation percentages for the cre ation of minority influencedistricts . 's

17 The present appeal is clearly distingui s hablefrom the facts and holding of the Arm our deci -sion . In Armour, the three-judge panel of the Dis-trict Court found that there was historical and in-tentional discrimination violating the VotingRights Act, the Fifteenth Amendment to theUnited States Constitution, and the Constitutionof Ohio. 775 F. Supp. at 106 1. It is also notewor-thy that the relief ordered by the court in Armourresulted in a minority influence district constitut-ing " nearly one-third of the voting age popula-tion." Id. at 1059. In this case , the minority popu-lation of the 38th Senatorial District is greaterthan 34% .

[* + Mqg118 It should be noted that the final plan doescontain the 38th Senatorial District in AlleghenyCounty with 34% African-American population.Without establishin g any criteria for minority i n-fluence districts , this Court would note that itwould appear that 34% of the populat i on of a dis-trict would provide the minority an opportunity toinfluence the outcome of elections. See Chisom v .Roemer, 501 U . S . at n 24 , 115 L . Ed . 2d at 364n.24 .

DISCOVERY

The fi n al reque st of vari ous app ell ants i s for th isCourt to Compel Discovery of the underlying motivesand purpose s of the Commission members and it s staff.The Commission raises legislative immunity in its re-sponse to Appellants' discovery requests . We need notresolv e this is sue because we have already held that theplan on its face does not violate the Constitution ofPennsylvania, the Constitution of the United States , orthe Voting Rights Act. Therefore any ev idence of themotives o r discussions of the Commission or its staff isirrelevant and those requests are denied .

[ * 366] CONCLUSION

Accordingly, the final plan of the 1991 [*** 47 ]Legislative Reapportionment Commission for the Penn-sylvania Senate and House of Representatives complieswith all constitutional and statutory requirements, andshall be used hereafter in elections to the General As -sembly until the next Reappo rtionment is Constitution -ally required.

Mr . Justice Larsen did not part ic ipate in the consid-eration or decision of these cases .

Mr . Justice Flaherty did not participate in the con -sideration or decision ofNos . 190, 194 , 196 , 199 and 201E .D . Mis c. Dkt . 1991 ; Nos. 49 and 51 M .D . Mis c . Dkt .1991; and No . 138 W .D. Misc . Dkt . 1991 .

Mr. Justice Papadakos did not participate in the con-s i deration or decision of Nos . 190, 194 , 196 , 199 and 201E .D . Misc . Dkt. 1991 ; Nos . 49 and 51 M.D . Misc . Dkt .1991: and No . 138 W .D. Misc . Dkt. 1991 .

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