# Butcher v. Bloom > Supreme Court of Pennsylvania · February 4, 1966 · 420 Pa. 305 URL: https://www.frixlaw.com/law-library/cases/9699522 ## Case - **Full name:** Butcher v. Bloom - **Court:** Supreme Court of Pennsylvania - **Decided:** February 4, 1966 - **Citations:** 420 Pa. 305; 216 A.2d 457; 1966 Pa. LEXIS 766 - **Precedential status:** Published - **Opinion:** Dissent by Musmanno - **Judges:** Bell, Roberts, Musmanno, Eagen - **Cited by:** 25 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9699522 ## How later opinions describe it (automated extraction) - noting that the Court selected redistricting plans for the Pennsylvania House and Senate after “[t]he deadline set forth in our earlier opinion passed without [the] enactment of the required legislation” ## Opinion text Dissenting Opinion by Mr. Justice Musmanno:. The. Supreme Court of the United States decided, through a series of decisions, that the districts of the various State legislatures must be reapportioned on a one-person one vote basis, thereby overruling many state districting laws which had theretofore prevailed. In effect, as Chief Justice Bell says in his Concurring Opinion, each House of the State Legislatures .(a) must have substantial equality of population among the various districts, (b) the districts must be compact and contiguous, and (c) there must be no invidious discrimination. This Court, with those criteria before it, set out to re-carve the Commonwealth of Pennsylvania so that in the end it might look, representatively speaking, like the ideal State envisioned by the Supreme Court of. the United States. I am afraid that the result announced by the Majority of this Court presents a map bearing little resemblance to the pragmatic representative perfection asked for by the highest court of the land. As I survey the terrain mapped out by the Majority of this Court I see marshes of inequality, swamps of uncompactness, bogs of invidious discrimination and barren wastes of unconstitutional performance. Legislative redistricting is not a matter of technical jurisprudence. It is simply the application of uncomplicated criteria to the raw materials of population, geography, topography, rivers and other natural bound *376 aries, as well as commercial, industrial, economic, social, cultural and regional interests. No one could be more familiar with these factors than the popularly elected representatives in the various districts. Thus, the State Senators, each representing a different district, each primarily concerned with his - own- local obligations, and each ardently championing his political views, nevertheless, through the process of discussion and analysis, and each keeping before him at all times the criteria laid down by the Supreme Court of the United States and this Court, agreed, by a nearly unanimous vote of 47 to 1, on a plan, which was constitutional, fair, equitable and representative of all the many interests involved. No senatorial district under the Senate plan exceeded the 15% variation from the norm of population allotted to each of the 50 senatorial districts. Under the Senate plan, the districts were compact, homogeneous and as equally peopled as the natural barriers, contours, and population concentrations of the State permitted. Not only did this plan squarely meet all- the reapportionment criteria and resolve them correctly, but it was the result of bi-partisan consideration. The Republican and the Democratic senators agreed to it, so that it could not be said that one party derived' any undue advantage over the other. With each side naturally and earnestly striving for a superior position, nevertheless the Republicans and Democrats came to a common understanding and wrote it into a Senate bill which, with but one adverse vote, received the unanimous approval of the upper chamber of the Pennsylvania Legislature. Nothing could have and should have more appealed to this Court as a demonstration of excellent, fair and equitable work done by the representatives of the people than this Senate plan. I urged this Court to accept it. The Majority rejected it. In doing so I believe it *377 committed a grievous error, and then it proceeded to magnify the error by the manner in which it proceeded from that point. Our Court is an appellate court. With very few. exceptions it. is our business to review decisions of.lower courts based on the. records made in those tribunals. But there was no such record in this. case. We did not even hear arguments on the case. Nor did we take original jurisdiction. Thus this Court, in a bizarre procedure acting neither as a trial court nor as an appellate court, served, in effect, a writ of certiorari on a finding by the legislature. With the definitive division of our government into three independent branches,, this ju: dicial invasion of the Legislature’s prerogatives should be enough to cause .the architects of our form, of government to stir in their tombs, and soliloquize. It is true that this Court acted in an appellate fashion when it sat on the case of Butcher v. Bloom, 415 Pa. 438 , and. it is true that it retained jurisdiction of the case, but it is also true that it referred the matter of reapportionment to. the. Legislature and, although both Houses did not enact a final reapportionment law, the Senate, as above stated, practically unanimously approved of a reapportionment plan for the Senate. Why didn’t this Court take that plan? The Majority does not analyze the Senate plan. It merely rejects it. It jettisons the findings of the most knowledgeable persons on the subject. While the Senate plan in some instances showed districts with an appreciable difference in population figures, the districts always stayed, as above stated, within the variation percentage allowed. The plan submitted by the Majority shows districts varying in population density with a differential as high as 43,000. Before this Court undertook to veto the will of the people, as spoken by the State Senators elected by the people, it should at least have had evidence on which *378 to act. It might have appointed a commission; it might have designated a master to take testimony; it might have done a number of things to guarantee due process under the 14th Amendment to the Constitution of the United States. It did none of -these things. In Butcher v. Bloom, supra, this Court said quite properly: “The task of reapportionment is not only the responsibility of the Legislature, it is also a function which can be best accomplished by that elected branch of government. The composition of the Legislature, the knowledge which its members from every part of the state bring to its deliberations, its techniques for gathering information, and other factors inherent in the- legislative process, make it the most appropriate body for the drawing of linesdividing the state into senatorial and representative districts(Emphasis supplied.) This Court accordingly then, in September, 1964, sent the reapportionment problem to the Legislature and the Legislature moved at. once to the fulfillment of its mammoth task. It cannot be emphasized too strongly that the only body charged by the' Constitution with reapportionment is the Legislature. Its findings, therefore, are entitled to maximum constitutional deference. In appreciation of its constitutional duties, the Legislature held hearings, it sent investigating committees throughout the State. It took testimony. The multifarious details inherent in a gigantic reapportionment of legislative districts for 11,319,366 people were discussed, analyzed and debated. There were innumerable conferences between the Senate and the House and its respective members through specially appointed committees. One would assume that this Court would, therefore, look with great respect upon the findings made by the Legislature. The Opinion of the Majority manifests that it more or less ignored this great work accom *379 plished by the highly skilled surveyors in the domain of statewide reapportionment. Instead of accepting the Senate agreements, the Court set about to accomplish reapportionment itself, armed with inadequate surveying instruments and other appropriate engineering equipment. And now the Majority has submitted its result, which clearly manifests the erratum committed in not assigning to the legislative findings the consideration they constitutionally deserved. I repeat that the Majority decision violates the Fourteenth Amendment and other provisions of the constitution of the United States, it fails to.follow the criteria laid down by the Supreme Court of the United States and, in fact, the decisions of this very Court itself. In Butcher v. Bloom, this Court said,- in interpreting our organic law, that there is a constitutional “intention to respect county lines and to utilize counties as units of representation to the maximum extent consistent with the equal-population principle.” Of course, it was impossible not to cross some county lines. The Senate plan held county invasion down to eight crossings, the Majority Plan mandates thirteen such trespasses. The Majority plan, aside from other constitutional and legislative encroachments, violates rules of apportionment, as well as of fairness in the matter of its numbering of senatorial districts. The State has fifty such districts, numbered necessarily odd and even. Strange as it may seem, it often happens that whether a district has an odd or even number determines to a considerable degree whether that district will elect a Republican or á Democratic' senator in given election year's. Statistics appear to indicate that in some districts the Republican or the Démocratic candidates, have a better chance of winning, depending on whether that particular election falls within a presidential election year or a gubernatorial election year. Thus, for *380 tuitously, but nevertheless in the natural law which sometimes governs chance and fate, advantages or disadvantages attend the candidates according to the number their districts bear. The numbering of senatorial districts, in order to achieve any order of methodical sequence, should begin at one end of the State and proceed, with some semblance of consecutiveness, to the other end of the State. The numbering should proceed horizontally,- clockwise, counter-clockwise, or up and down the State in vertical segments, but it should- not leapfrog. For instance, .if the numbering is to begin in Philadelphia, which has nine senatorial districts, the most natural process of numbering would be from 1 to 9. No comparison can be made here with the Senate plan because that plan called for the election of only 25 Senators, whereas the Majority plan calls for the election of all 50 Senators, even if for staggering terms. 1 The Majority, in numbering, the Philadelphia districts, did not follow the numerical sequence of 1 to 9. It used the numbers 1 to 8, .and then, even though not confronted with the problem of avoiding districts not coming up for election, wholly unnecessarily jumped to No. 36. In the adjoining Delaware County or portions thereof, the numbers became 9, 17 and 26.- In another contiguous county or portions thereof, Mont *381 gomery- tlie numbers gambolled through 12, 17 and 24. Then District 21 kangarooed between 41 and 47, or between 47 and '50, depending on the direction of the approach. A glance at the map, under the Majority plan, shows a chaotic jumble of numbers, which, however, when studied in connection with local conditions, will show not chaos, but a very planned arrangement to achieve certain partisan results which certainly fall within the inhibition of invidious discrimination. " This kind of maneuver could influence the election or defeat of' candidates depending on whether the election year is a presidential or gubernatorial one. It has been said that gerrymandering can be accomplished sometimes as effectively by numbers as well as' by formulation of strangely-shaped election districts. In view of the fact that the date for distributing nominating petitions in the May primaries is imminent, the decision of the Court in this case should be filed without delay. Thus, time being of the essence, I cannot write an extended Dissenting Opinion in which I Avould enumerate and discuss the other areas in Avhich I believe the Majority violated the Federal and the State constitutions. I will linger long enough to address my attention to one (of the many) major uncom stitutional provisions in the Majority’s plan for reapportionment of the House of Representatives. The Majority has awarded to Bucks County six House seats. Article It, §17 of the State Constitution declares, inter alia, that “The members of the House of, Representatives shall be apportioned among the several counties, on a ratio obtained by dividing the population of the State as ascertained by the most recent United States census by two -hundred. Every county containing less than five ratios shall have one representative for every full ratio, and an additional representative when the surplus exceeds half a ratio . . . Every county containing five ratios or more shall have *382 one representative for every full ratio.” (Emphasis supplied. ) Under this section the ratio per representative in Pennsylvania is 56,597. Bucks County, with a population of 308,567 is, therefore, entitled to 5.45 representative ratios. Since .45 is not a half and certainly not a full ratio, Bucks is not entitled to six representatives under either ratio definition above quoted. The Majority, in an outright repudiation of the cited constitutional provision, has awarded six House seats to Bucks County. This arbitrary usurpation of legislative power can in no way be justified. If it would be argued that, making the computation in reverse, each district would number a population of 51,000, and thus only 10% below the representative ratio, this, generally speaking, would not be abnormal if it involved only a single representative. Here, however, the minus ratio is repeated in six contiguous districts. Bucks County thus becomes over-represented at the expense of other parts of the State. If the Majority plan for awarding seats in Bucks County were to be followed in Philadelphia and Allegheny Counties, Allegheny County Avould be entitled to three more seats, and Philadelphia County to four additional seats. It must be quite clear, therefore, that the Majority plan, by assigning an advantage to Bucks County, Avhich is denied all other counties in the State, offends against the prohibition of invidious discrimination. In a tight election between the two predominant political parties in Pennsylvania, the election of an additional representative by one party in Bucks County could determine Avhich party would control the House of Representatives. This would mean that legislation affecting the entire Commonwealth could be determined in a closely controverted issue, along partisan lines, by this one single vote which has been handed to Bucks County by the Majority on an unconstitutional silver platter. *383 For these reasons and others for which time will not permit discussion or even enumeration, I dissent. It is true that the Legislature,, in creating a new senatorial district in Philadelphia, numbered it 36, but special circumstances brought this about. The district originally numbered 36 was underpopulated as a district and was ábsorbed into number 30. Another reason is that the newly created seat was to'be filled in the next election,- under the staggered plan of election, which, of course, followed the odd-and-even number sequence. This numbering however-was not controlling on this Court. Therefore, since the majority renumbered the districts on a State-wide basis, there is no reason, why logically it should riot- have given to the new Philadelphia district the number 9, so that it would adhere to a sensible, consecutive numbering. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9699522. Public record. Not legal advice.