PROTECTING VOTER EQUALITY
Mark Nordenberg on the changed circumstances and timeless values that shaped Pa.’s new legislative maps
In his Gettysburg Address, Abraham Lincoln urged the living to honor those who died on the battlefield by ensuring “that government of the people, by the people, for the people shall not perish from this earth.” That famous passage underscores the bonds that must exist between government and the governed in a democracy. Most fundamentally, representative government must reflect the will of the people as expressed through votes cast in fair elections.
One critical element of fairness is that votes be weighted equally. For this reason, the boundaries of legislative districts are adjusted after every census, ensuring that the weight of votes is not distorted by population shifts.
In the last decade, Pennsylvania experienced two significant shifts. First, there was substantial population growth in urban areas, especially in the Southeast, coupled with widespread population losses in rural areas. In fact, the population of Southeastern
Pennsylvania grew by more than 344,000, while the rest of the state suffered a collective population loss. The second major change was the continued growth of racial and ethnic minority groups. In the last two decades, Pennsylvania’s minority population climbed from 1.97 million to 3.46 million, a jump of 76%.
These changes left many House districts severely malapportioned. A swath of rural districts had populations from 10% to nearly 14% below the target for a district, while some urban districts had populations 15% to 21% above that target. Without adjustments, then, two House members would have equal votes in Harrisburg, even though one represented well over 20,000 more people. Such differences significantly exceed constitutionally permissible deviations, requiring changes to existing districts.
In 1968, voters overwhelmingly approved amendments to the state Constitution taking from legislators the power to re-draw legislative districts and rejecting past practices through which legislators had misused reapportionment by prioritizing their own reelection prospects. The amendment transferred reapportionment responsibilities to an independent Commission, consisting of the four legislative caucus leaders and a fifth member who serves as Chair. The current Commission, on which I served as Chair, worked diligently to meet a range of challenges and produce a plan clearly meeting constitutional standards.
Ten years ago, in a more typical census
cycle, one state Supreme Court Justice described reapportionment as “complex beyond words.” Much of that complexity is tied to language in the state Constitution requiring that “unless absolutely necessary,” counties and municipalities should be left intact when forming electoral districts. This requirement is important to guard against splitting communities of interest by drawing misshapen districts.
Nonetheless, compliance is daunting. Pennsylvania has one of the nation’s largest legislatures, with 253 members. It also has over 2,600 municipalities and counties. Simply as a
matter of geometry, minimizing divisions and boundary cuts is challenging.
This also was not a typical census cycle. Pandemic-related problems caused lengthy delays in the delivery of census data. Since Pennsylvania’s primary elections, which should be conducted under reapportioned maps, are held early, the Commission was compelled to complete its work in considerably less time than allowed for by the Constitution.
At the same time, expectations for public participation were higher than ever, leading to an historically open process, which was very constructive but also timeconsuming. The Commission conducted 7 public meetings and 16 public hearings; took testimony from 181 witnesses; and received more than 6,000 submitted maps and comments, each of which was read by two members of the Commission’s team and then catalogued.
The resulting plan dramatically reduced county and municipal splits and fared better on virtually every other measure than prior maps. It was approved by a 4 to 1 bipartisan vote within the Commission, and was unanimously upheld by the Pennsylvania Supreme Court. The U.S. Supreme Court, though agreeing to review reapportionment cases from several other states, declined to review this plan.
Each of these steps validated the Commission’s plan, as did the recent mid-term election, which attracted considerable attention because of an apparent shift in control of the state House of Representatives. A fair map must be responsive to the voters and, in a purple state like Pennsylvania, should provide both parties with an opportunity to secure the majority. The map cannot be gerrymandered to ensure that the party holding the majority retains it indefinitely.
Certainly if the anticipated redwave election had materialized, but even if voting trends had been more even, it is very unlikely that control of the House would have shifted. However, Democrats won statewide races for Governor and U.S. Senator, as well as a majority of Pennsylvania’s Congressional seats while gaining a seat in the state Senate. Given these results, the fact that House seats were nearly evenly split confirms what most analysts had said — that the map remains biased in favor of Republicans, but not as biased as it had been.
Both during reapportionment and after the election, some politicians and commentators asserted inaccurately that Pennsylvania’s “political geography” — with Democrats clustered in cities and Republicans more widely dispersed — precluded the creation of a level playing-field. More specifically, they said that any map not significantly disadvantaging Democrats necessarily must include districts shaped like pizza slices or the spokes of a bicycle’s wheel. However, this House map contains no such districts.
Other observers said that the House map ignored state constitutional requirements to the disadvantage of communities of interest, claims that were rejected unanimously by the state Supreme Court, and with good reason. This map fares better than past maps when measured against constitutional mandates intended to preserve communities of interest.
Given their substantial population growth and their ongoing underrepresentation in the Legislature, racial and ethnic minority groups clearly deserved attention. The new House map also served that interest, with at least seven additional members of minority groups being elected last month.
In considering the extent to which political geography should be a factor in drawing districts, the language of the U.S. Supreme Court in the landmark case of Reynolds v. Sims is telling: “Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government . . . the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system.” It was this constitutional imperative, combined with significant population shifts, that shaped the Commission’s plan.