Constitutional law – Pennsylvania Constitution, Article I, Section 5: The free and equal elections clause, congressional redistricting

February 9th, 2018 by Rieders Travis in Constitutional Law

League of Women Voters of Pa. v. Commonwealth, 2018 Pa. LEXIS 771 (February 7, 2018) Todd, J.  This case strikes down Pennsylvania’s Congressional Redistricting Act of 2011 as unconstitutional under the Pennsylvania Constitution.  The court held that while federal courts have been unable to settle on a workable standard by which to assess partisan gerrymandering claims, there is no barrier under the “great” Pennsylvania charter.  The 2011 Plan violates Article I, Section 5, Free and Equal Elections Clause of the Pennsylvania Constitution.  The court examined each one of the congressional districts in detail, as well as the electoral history.  The court held that the 2011 Plan clearly, plainly and palpably violates the Free and Equal Elections Clause of the Pennsylvania Constitution.  The historial motives of adoption of the Pennsylvania constitutional provision at issue was to prevent the dilution of the right of the people of the Commonwealth to select representatives to govern their affairs based on considerations of the region of the state in which they live, the religious and political beliefs to which they adhered.

Consequently, for all of these reasons, and as expressly set forth in our Order of January 22, 2018, we adopt these measures as appropriate in determining whether a congressional redistricting plan violates the Free and Equal Elections Clause of the Pennsylvania Constitution. Therefore, an essential part of such an inquiry is an examination of whether the congressional districts created under a redistricting plan are: composed of compact and contiguous territory; as nearly equal in population as practicable; and which do not divide any county, city, incorporated town, borough, township, or ward, except where necessary to ensure equality of population.

In sum, we conclude that the evidence detailed above and the remaining evidence of the record as a whole demonstrates that Petitioners have established that the 2011 Plan subordinates the traditional redistricting criteria in service of achieving unfair partisan advantage, and, thus, violates the Free and Equal Elections Clause of the Pennsylvania Constitution. Such a plan, aimed at achieving unfair partisan gain, undermines voters’ ability to exercise their right to vote in free and “equal” elections if the term is to be interpreted in any credible way. An election corrupted by extensive, sophisticated gerrymandering and partisan dilution of votes is not “free and equal.” In such circumstances, a “power, civil or military,” to wit, the General Assembly, has in fact “interfere[d] to prevent the free exercise of the right of suffrage.” Pa. Const. art. 1, § 5.

Virtually every other state that has considered the issue looked, when necessary, to the state judiciary to exercise its power to craft an affirmative remedy and formulate a valid reapportionment plan.