(610) 768-4200

By State Senator Daylin Leach

Speaker of the House Sam Smith and his Republican colleagues have frequently spoken about the need to end “frivolous lawsuits.” However, this disdain for meritless litigation apparently does not extend to Smith’s attempt to rescue his party’s ability to gerrymander legislative districts.

Speaker Smith filed a lawsuit in Federal Court asserting that the U.S. Supreme Court’s “one-man-one-vote” doctrine, spelled out in the leading cases of Baker v. Carr, Reynolds v. Simms and their progeny, prohibits use of the 2001 lines because there are now significant population deviations between districts. However, the Supreme Court and lower courts that have dealt with this issue have said no such thing.

What the Supreme Court does require is that new state legislative district lines be reasonably equal in population when drawn. Only intentional “invidious discrimination” and deliberate “debasement” of people’s votes by the entity drawing the lines is prohibited. See Reynolds v. Simms, 377 US 533 (1964) at 547, 560 and 567.

Unlike Congressional reapportionment, the reapportionment of state legislative districts is permitted a great deal of flexibility in population deviation from district to district. Reynolds, Id, Connor v. Finch, 431 US 407 (1977). In Fischer v. State Board of Election, 879 S.W.2nd 475 (Ky. 1994) the Supreme court of Kentucky wrote:

“Federal decision law has long acknowledged the right of
States to allow significant deviation from strict “one man
one vote” principles, absent invidious discrimination to
achieve important state policy,”
879 S.W.2nd at 478.

The Kentucky Court went on to note that an 89 percent deviation was upheld by the U.S. Supreme Court in Brown v. Thompson 462 US 835 (1983), which is larger than the deviation alleged by Speaker Smith.

Pennsylvania’s 2001 reapportionment map was upheld as constitutional when written, with no finding of invidious discrimination. That map does not lose its constitutional validity simply because it is no longer equal in population. If it did, the 2008 and 2010 elections – held using that map – would also have been unconstitutional since there were large population deviations then as there are today.

The only way to have districts with equal population every election would be to have much more frequent reapportionment. But the Supreme Court in Reynolds was very clear on this point:

“We do not regard the Equal Protection Clause as requiring
daily, monthly, annual or biennial reapportionment, so long
as a State has a reasonably conceived plan for period readjust-
ment of legislative representation.”
377 US at 583.

In fact, the Court did not even require reapportionment every 10 years, saying:

“While we do not intend to indicate that decennial
reapportionment is a constitutional requisite, compliance
with such an approach would clearly meet the minimal
requirements for maintaining a reasonably current scheme
of legislative reapportionment.”
377 US at 583.

Thus, it would have been constitutional for Pennsylvania to choose not to reapportion at all in 2011, but instead to do so in 2012, regardless of population disparities between districts.

In Kentucky, there was a dispute regarding the 1990-91 state legislative reapportionment. The Kentucky Supreme Court recognized the importance of proceeding with their upcoming elections with a minimum of disruption. They thus ordered the election to proceed with final redistricting, (including the equalizing of population between districts) to occur after that election. As the court stated:

“The next legislature must be elected under it {the current plan}, and
we have no doubt the members, impelled by their sense of duty, the
obligations of their oath of office, together with that spirit of justice
which is the heritage of the race, will redistrict the state as the constitution requires,”
Fischer v. State Board of Elections, 879 S.W. 2nd at 481.

Speaker Smith has filed suit which, if successful, would force a rushed reapportionment without proper deliberation and input and the obviating of the will of the voters who are this very day signing petitions to put candidates they prefer on the ballot in their current districts.

More to the point, Speaker Smith has filed a suit that a simple review of the relevant law demonstrates he has no realistic chance of winning and is legally frivolous. The better course of action would be for the Speaker to begin the process of drawing a reasonable, bi-partisan, non-gerrymandered map so that we can have fair elections in 2014.