This month, the Court issued 1 (maybe) precedential opinion and 10 grants of allocatur. 

On the opinion side, on March 9, the court issued its highly anticipated decision in Carter, adopting a remedial Congressional redistricting plan proposed by the Carter petitioners, a citizen-group represented by a prominent national-Democratic-aligned elections firm, in light of the extant inability of the General Assembly and Governor to agree on a map.  The Carter plan's main (or at least a major) goal was to manage Pennsylvania's loss of a Congressional seat while accomplishing the "least change" from Pennsylvania's 2018 court-ordered map.  Other groups offered maps that featured goals such as the mathematical optimization of traditional and other redistricting goals, significant public input, durability of partisan fairness during anomalous elections, and deference to the legislature, to name a few.

As I wrote last month, there were a few issues that would be of significant importance in this and future cases, primarily the relative importance of traditional redistricting criteria, such as compactness and the avoidance of splitting political subdivisions into multiple Congressional districts, and partisan fairness following its 2018 decision in League of Women Voters v. Commonwealth.  On that issue, the court had essentially three options: (1) traditional redistricting criteria are primary, and any resulting artificial partisan tilt is acceptable; (2) traditional redistricting criteria and partisan fairness are all factors to be considered; and (3) traditional redistricting criteria must be complied with and avoid artificial partisan tilt.

The majority opinion, authored by Chief Justice Max Baer, and joined by Justices Christine Donohue, Kevin Dougherty, and David Wecht seems to suggest a blend of the latter two, finding the citizen-group's plan superior or comparable to its peers, ultimately concluding that it "best abides by the traditional core criteria with attention paid to the subordinate historical considerations and awareness of partisan fairness."  Frankly, the majority opinion reads like one ensuring that it is a majority opinion.

But did it? The other three Justices in the majority authored concurring opinions glossing on the pertinent analysis.  Justice Donohue appeared to favor the second approach, opining that when competing plans comply with traditional redistricting criteria, "consideration of the degree of partisan fairness must . . . drive the ultimate selection of a plan[,]" albeit disqualifying other plans which scored better on that metric because they disrupted communities of interest.  Justice Dougherty viewed the plan's "least change" approach as a tiebreaker of sorts, and Justice Wecht expressed similar sentiments.

Justice Debra Todd, for her part, dissenting, preferred the first approach, and, consequently, would have adopted a plan proposed by a citizen-group of primarily mathematicians and statisticians that optimized traditional redistricting criteria.  Justice Sallie Mundy also expressed a desire to confine the task to the traditional redistricting criteria, offering a fairly compelling statistical analysis as to the Carter plan's shortfalls in that regard. And finally, now-Justice Brobson authored an opinion arguing that the adopted plan violated the federal constitutional principle of "one person, one vote," because some districts had a population deviation of two persons and chiding the majority for considering partisan fairness as a step beyond the proverbial "political thicket" and into a "partisan quagmire."

What is the analysis after Carter, other than that the Court adopted a particular map?  It's hard to say.  The procedural posture of the case, in which the Court was not called on to declare that a particular map was illegal, but, rather, to choose a map, obscures the degree to which its reasoning will be binding or even useful in the future.  And, in substance, what degree of compliance with the "traditional core criteria" is necessary to make a map lawful?  How much attention must be paid to subordinate considerations like the combining of communities of interest into a single Congressional district?  And how much "awareness" of partisan fairness is appropriate?  Is the question now whether a plan is *too* unfair?

In this author's opinion, the Court missed an opportunity to ensure that future plans are truly fair to voters by failing to adopt a clear rubric and allowing some unspecified degree of dilution of their votes in service of other goals.  It's certainly true that the Carter plan has a lot going for it, but one suspects that the leeway Carter gives to mapmakers can and will be used for good and ill in ten years, when the political geography of Pennsylvania, or the Court, may look quite different than it does today.

Precedential Opinions

Carter v. Chapman, 7 MM 2022 (Opinion by Baer, C.J.) (adopting a remedial Congressional redistricting plan in light of the extant impasse in legislatively adopting one)

• See also Concurring Opinion by Donohue, J.
• See also Concurring Opinion by Dougherty, J.
• See also Concurring Opinion by Wecht, J.
• See also Dissenting Opinion by Todd, J.
• See also Dissenting Opinion by Mundy, J.
• See also Dissenting Opinion by Brobson, J.

Allocatur Grants

Commonwealth v. Smoot, 98-105 MAL 2021 (granting review to consider whether a defendant's lack of counsel for three of the four months before his trial constituted denial of his right to counsel)

Commonwealth v. Dunn, 81 WAL 2021 (granting review to consider whether the Commonwealth's failure to provide notice of its intent to call an expert witness violated a statutory notice provision and/or the Rules of Criminal Procedure and/or the defendant's federal and state constitutional rights to due process)

Vellon v. PennDOT, 555 MAL 2021 (granting review to consider whether charged, but not adjudicated DUIs constitute prior offenses for purposes of a drivers' license suspension statute)

Franczyk v. The Home Depot, Inc., 315 WAL 2021 (granting review to consider whether an employee injured by a non-employer third-party is precluded by the Workers' Compensation Act from suing in tort)

South Bethlehem Assoc. v. Zoning Hearing Bd. of Bethlehem Twp., 95 MAL 2021 (granting review to consider standing in zoning appeals)

Commonwealth v. Taylor, 609 MAL 2021 (granting review to consider whether harmless error analysis applies where a trial judge considers an impermissible factor in certifying a juvenile delinquency case to criminal court and whether juveniles who "age out" of the juvenile justice system remain subject to criminal proceedings)

Franks v. State Farm, 563 MAL 2021 (granting review to consider whether the deletion of a vehicle from an automobile policy is a "purchase" triggering the obligation to obtain a new waiver of uninsured/underinsured coverage "stacking")

The Bert Co. v. Turk, 320 WAL 2021 (granting review to consider several issues related to the constitutionality of punitive damage awards under the federal constitutional right to substantive due process).

Pa. State Police v. ACLU, 662 MAL 2021 (granting review to consider whether an appellate court abuses its discretion by sua sponte remanding a Right-To-Know matter to the Office of Open Records for additional fact finding)

Salsberg v. Mann, 433 EAL 2021 (granting review to consider whether to recognize claims by an employee of intentional interference with a third party's performance of a contract committed by the employee's supervisor outside the scope of employment)