OPINION OF THE COURT
ROBERTS, Justice.
These are consolidated appeals from the Final Legislative Reapportionment Plan, which was filed by the Pennsylvania Legislative Reapportionment Commission on October 13, 1981. For the reasons set forth, we hold that the reapportionment plan complies with all of the requirements of the United States Constitution and the Constitution of this Commonwealth.
The plan challenged on these appeals is the second reapportionment plan to be adopted by the Legislative Reapportionment Commission, which, since 1968, has been constitutionally vested with the obligation to reapportion the legislative districts of the Commonwealth “[i]n each year following that in which the Federal decennial census is officially reported.” Pa.Const. art. II, § 17(a).1 Pursuant to the [531]*531Constitution, the Commission consists of five members who act by majority vote: the majority and minority leaders of both the Senate and House of Representatives (or deputies appointed by each of them), and a chairman who is selected either by the other four members of the Commission or, if the four Commission members are unable to do so within the time prescribed, by this Court. Pa.Const. art. II, § 17(b). The present Legislative Reapportionment Commission, which consists of the majority and minority members of each house and a chairman selected by them, unanimously adopted the Final Legislative Reapportionment Plan now before this Court for review.
Appellants appeal pursuant to Pa.Const. art. II, § 17(d), which provides that “any aggrieved person may file an appeal from the final plan directly to the Supreme Court within thirty days after the filing thereof.” Pursuant to that same constitutional provision, appellants have the burden of establishing “that the final plan is contrary to law.” See Commonwealth ex rel. Specter v. Levin, 448 Pa. 1, 19, 293 A.2d 15, 24 (1972), appeal dism’d for want of substantial federal question, 409 U.S. 810, 93 S.Ct. 44, 34 L.Ed.2d 65 (1972).2
I
The law which governs these appeals and circumscribes this Court’s review of the Commission’s Final Legislative Reapportionment Plan is set forth in Article II, Section 16 of the Pennsylvania Constitution and the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. In interpreting the Equal Protection Clause, the Supreme Court of the United States has repeatedly recognized that reapportionment “is [532]*532primarily a matter for legislative consideration and determination.” Reynolds v. Sims, 377 U.S. 533, 586, 84 S.Ct. 1362, 1394, 12 L.Ed.2d 506 (1964). Accord, e.g., Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973); Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973); Ely v. Klahr, 403 U.S. 108, 91 S.Ct. 1803, 29 L.Ed.2d 352 (1971); Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966). In addressing the limited, constitutional nature of judicial review of reapportionment matters, the Supreme Court of the United States has rejected a litigant’s claim that a state reapportionment plan should be invalidated merely because the alternative plan proposed by the litigant is a “better” one:
“And what is to happen to the Master’s plan if a resourceful mind hits upon a plan better than the Master’s by a fraction of a percentage point? Involvement like this must end at some point, but that point constantly recedes if those who litigate need only produce a plan that is marginally ‘better’ when measured against a rigid and unyielding population-equality standard.
The point is, that such involvements should never begin. We have repeatedly recognized that state reapportionment is the task of local legislatures or of those organs of state government selected to perform it.”
Gaffney v. Cummings, supra, 412 U.S. at 750-51, 93 S.Ct. at 2330. Thus, to prevail in their challenge to the final reapportionment plan, appellants have the burden of establishing not, as some of the appellants have argued, that there exists an alternative plan which is “preferable” or “better,” but rather that the final plan filed by the Pennsylvania Reapportionment Commission fails to meet constitutional requirements.
The principle that reapportionment is a legislative function is evident from the plain language of this state’s Constitution. Article II, Section 17(d) directs not only that the Legislative Reapportionment Commission file a reapportionment plan but also that, in the event a final plan is determined by this Court to be invalid, the plan be remanded [533]*533to the Commission for a second attempt at reapportionment.3 As this Court stated in Commonwealth ex rel. Specter v. Levin, 448 Pa. 1, 7, 293 A.2d 15, 17-18 (1972), the constitutional delegation of responsibility for reapportionment to the Legislative Reapportionment Commission is designed to retain “the Legislature’s expertise in reapportionment matters.”
II
The constitutional requirements which govern this Court’s review are set forth in detail in Commonwealth ex rel. Specter v. Levin, 448 Pa. 1, 293 A.2d 15 (1972), where this Court reviewed, and sustained as constitutional, the 1971 reapportionment plan, the first to be effectuated under Article II, Section 16 of the Pennsylvania Constitution. In Specter, this Court made clear that the federal constitutional requirement of equal protection, which mandates “ ‘that a State make an honest and good faith effort to construct districts, in both houses of its Legislature, as nearly of equal population as is practicable,’ ”4 is incorporated as a matter of state constitutional law in Article II, Section 16, which provides that districts be “composed of compact and contiguous territory as nearly equal in population as practicable.... ” In Specter, this Court also made clear that, as a matter of both federal and state law, equality of population must be the controlling consideration in the apportionment of legislative seats. As the Supreme Court of the United States has stated,
“the basic principle of representative government remains, and must remain, unchanged — the weight of a citizen’s vote cannot be made to depend on where he lives. Popu[534]
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION OF THE COURT
ROBERTS, Justice.
These are consolidated appeals from the Final Legislative Reapportionment Plan, which was filed by the Pennsylvania Legislative Reapportionment Commission on October 13, 1981. For the reasons set forth, we hold that the reapportionment plan complies with all of the requirements of the United States Constitution and the Constitution of this Commonwealth.
The plan challenged on these appeals is the second reapportionment plan to be adopted by the Legislative Reapportionment Commission, which, since 1968, has been constitutionally vested with the obligation to reapportion the legislative districts of the Commonwealth “[i]n each year following that in which the Federal decennial census is officially reported.” Pa.Const. art. II, § 17(a).1 Pursuant to the [531]*531Constitution, the Commission consists of five members who act by majority vote: the majority and minority leaders of both the Senate and House of Representatives (or deputies appointed by each of them), and a chairman who is selected either by the other four members of the Commission or, if the four Commission members are unable to do so within the time prescribed, by this Court. Pa.Const. art. II, § 17(b). The present Legislative Reapportionment Commission, which consists of the majority and minority members of each house and a chairman selected by them, unanimously adopted the Final Legislative Reapportionment Plan now before this Court for review.
Appellants appeal pursuant to Pa.Const. art. II, § 17(d), which provides that “any aggrieved person may file an appeal from the final plan directly to the Supreme Court within thirty days after the filing thereof.” Pursuant to that same constitutional provision, appellants have the burden of establishing “that the final plan is contrary to law.” See Commonwealth ex rel. Specter v. Levin, 448 Pa. 1, 19, 293 A.2d 15, 24 (1972), appeal dism’d for want of substantial federal question, 409 U.S. 810, 93 S.Ct. 44, 34 L.Ed.2d 65 (1972).2
I
The law which governs these appeals and circumscribes this Court’s review of the Commission’s Final Legislative Reapportionment Plan is set forth in Article II, Section 16 of the Pennsylvania Constitution and the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. In interpreting the Equal Protection Clause, the Supreme Court of the United States has repeatedly recognized that reapportionment “is [532]*532primarily a matter for legislative consideration and determination.” Reynolds v. Sims, 377 U.S. 533, 586, 84 S.Ct. 1362, 1394, 12 L.Ed.2d 506 (1964). Accord, e.g., Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973); Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973); Ely v. Klahr, 403 U.S. 108, 91 S.Ct. 1803, 29 L.Ed.2d 352 (1971); Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966). In addressing the limited, constitutional nature of judicial review of reapportionment matters, the Supreme Court of the United States has rejected a litigant’s claim that a state reapportionment plan should be invalidated merely because the alternative plan proposed by the litigant is a “better” one:
“And what is to happen to the Master’s plan if a resourceful mind hits upon a plan better than the Master’s by a fraction of a percentage point? Involvement like this must end at some point, but that point constantly recedes if those who litigate need only produce a plan that is marginally ‘better’ when measured against a rigid and unyielding population-equality standard.
The point is, that such involvements should never begin. We have repeatedly recognized that state reapportionment is the task of local legislatures or of those organs of state government selected to perform it.”
Gaffney v. Cummings, supra, 412 U.S. at 750-51, 93 S.Ct. at 2330. Thus, to prevail in their challenge to the final reapportionment plan, appellants have the burden of establishing not, as some of the appellants have argued, that there exists an alternative plan which is “preferable” or “better,” but rather that the final plan filed by the Pennsylvania Reapportionment Commission fails to meet constitutional requirements.
The principle that reapportionment is a legislative function is evident from the plain language of this state’s Constitution. Article II, Section 17(d) directs not only that the Legislative Reapportionment Commission file a reapportionment plan but also that, in the event a final plan is determined by this Court to be invalid, the plan be remanded [533]*533to the Commission for a second attempt at reapportionment.3 As this Court stated in Commonwealth ex rel. Specter v. Levin, 448 Pa. 1, 7, 293 A.2d 15, 17-18 (1972), the constitutional delegation of responsibility for reapportionment to the Legislative Reapportionment Commission is designed to retain “the Legislature’s expertise in reapportionment matters.”
II
The constitutional requirements which govern this Court’s review are set forth in detail in Commonwealth ex rel. Specter v. Levin, 448 Pa. 1, 293 A.2d 15 (1972), where this Court reviewed, and sustained as constitutional, the 1971 reapportionment plan, the first to be effectuated under Article II, Section 16 of the Pennsylvania Constitution. In Specter, this Court made clear that the federal constitutional requirement of equal protection, which mandates “ ‘that a State make an honest and good faith effort to construct districts, in both houses of its Legislature, as nearly of equal population as is practicable,’ ”4 is incorporated as a matter of state constitutional law in Article II, Section 16, which provides that districts be “composed of compact and contiguous territory as nearly equal in population as practicable.... ” In Specter, this Court also made clear that, as a matter of both federal and state law, equality of population must be the controlling consideration in the apportionment of legislative seats. As the Supreme Court of the United States has stated,
“the basic principle of representative government remains, and must remain, unchanged — the weight of a citizen’s vote cannot be made to depend on where he lives. Popu[534]*534lation is, of necessity, the starting point for consideration and the controlling criterion for judgment in legislative apportionment controversies.”
Reynolds v. Sims, 377 U.S. at 567, 84 S.Ct. at 1384 (footnote omitted).
The Final Legislative Reapportionment Plan reflects the Legislative Reapportionment Commission’s adherence to the goal of equal population among legislative districts. When the population of the Commonwealth is divided by the 50 seats constitutionally mandated for the Senate and the 203 seats constitutionally mandated for the House of Representatives, the ideal district of “one person, one vote” is composed of 237,334 people for the Senate and 58,456 people for the House.5 Under the final plan of the Legislative Reapportionment Commission, the range of deviation between the highest and lowest populated districts is only 1.9% from the ideal Senate district and 2.8% from the ideal House district. There is no doubt that this plan, which more nearly achieves the goal of equal population than did the 1971 reapportionment plan in Specter, satisfies equal protection requirements. ■ Indeed, as is demonstrated by the table contained in the accompanying footnote, the final plan achieves an equality of population among legislative districts closer to the constitutional ideal of “one person, one vote” than any previous reapportionment plan in the history of the Commonwealth.6
[535]*535Ill
Appellants contend that the Final Legislative Reapportionment Plan goes too far toward achieving the constitutional goal of “one person, one vote” and, in so doing, fails to achieve the additional state constitutional goals of Article II, Section 16, that districts be compact, and that no political subdivision be divided unnecessarily. Article II, Section 16 provides in full:
“Legislative districts
The Commonwealth shall be divided into fifty senatorial and two hundred three representative districts, which shall be composed of compact and contiguous territory as nearly equal in population as practicable. Each senatorial district shall elect one Senator, and each representative district one Representative. Unless absolutely necessary no county, city, incorporated town, borough, township or ward shall be divided in forming either a senatorial or representative district.”7
A.
Appellants’ argument is based on the premise that the goals of compactness and maintenance of political subdivisions are as important as the goal of maximum population equality among districts. Thus, appellants argue, district deviations from compactness and subdivision boundaries are constitutionally permissible only if these deviations are absolutely necessary to survive federal equal protection analysis.
Contrary to appellants’ premise, this Court has held that the state constitutional mandate that districts be “as nearly of equal population as is practicable” requires that “the object of any reapportionment plan must be substantial equality of population” and that, if need be, the concerns for compactness and adherence to political subdivision lines must yield to this “overriding objective.” 448 Pa. at 13, 293 [536]*536A.2d at 21. In Specter, where the Court was first called upon to interpret Article II, Section 16 of the Constitution, we looked not only to federal constitutional principles but also to the language of the Pennsylvania Constitution. This Court recognized that, with a fixed number of legislative seats to be apportioned “as nearly equal in population as practicable” and a “population density of this state [that] is quite uneven,” in any apportionment scheme there is a “certain degree of unavoidable noncompactness” and a “certain amount of subdivision fragmentation [that] is inevitable.” Specter, 448 Pa. at 17-18, 293 A.2d at 23.
B.
Appellants rely upon decisions of the Supreme Court of the United States rendered since Specter that have upheld state reapportionment plans with greater district deviations from the ideal population than in Specter or in this case. See, e.g., White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973); Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973). Appellants argue that, because a greater deviation from the population ideal than exists in the final plan would constitute “substantial equality of population” under federal equal protection standards, that greater deviation must define Pennsylvania’s standard for substantial equality of population. According to appellants, it is constitutionally impermissible to create districts that more closely approach the ideal of “one person, one vote” if to do so would also render districts more noncompact and divide more political subdivisions.
Appellants’ argument disregards the critical fact that adherence to a percentage deviation that is at the outside limits of constitutionality cannot be squared with the overriding constitutional objective of “substantial equality of population” among districts. The Pennsylvania Constitution plainly states that districts shall be “as nearly equal in population as practicable.” Thus, the clear constitutional directive is that reapportionment shall strive to create districts as equal, not as unequal, as possible. As this Court has stated,
[537]*537“ ‘if, even as a result of a clearly rational state policy of according some legislative representation to political subdivisions, population is submerged as the controlling consideration in the apportionment of seats in the particular legislative body, then the right of all the State’s citizens to cast an effective and adequately weighted vote would be unconstitutionally impaired.’ ”
Specter, 448 Pa. at 9, 293 A.2d at 19, quoting Reynolds v. Sims, 377 U.S. at 581, 84 S.Ct. at 1391.
Moreover, there is no predetermined percentage deviation from the ideal of “one person, one vote” that satisfies the federal constitutional requirement of “substantial equality of population.” As the Supreme Court of the United States has stated, “[w]hat is marginally permissible in one State may be unsatisfactory in another, depending on the particular circumstances of the case.” Reynolds v. Sims, 377 U.S. at 578, 84 S.Ct. at 1390. Accord, Mahan v. Howell, 410 U.S. 315, 328-29, 93 S.Ct. 979, 987, 35 L.Ed.2d 320 (1973) (“citations to numerous cases decided by state and lower federal courts [are] of limited use in determining the constitutionality of Virginia’s statute”); Swann v. Adams, 385 U.S. 440, 446, 87 S.Ct. 569, 573, 17 L.Ed.2d 501 (1967) (“fact that a 10% or 15% variation from the norm is approved in one State has little bearing on the validity of a similar variation in another State”).
Nor can appellants prevail on the theory that this Court should review the final plan of the Legislative Reapportionment Commission to determine whether there is a standard of population deviation greater than that adopted by the Commission, but less than the maximum deviation permissible under the federal Constitution, which would more closely achieve the goals of compactness and undivided political subdivisions. As the Court of Appeals of New York recognized in dismissing a similar claim, the role of the Court in reviewing a reapportionment plan is not to substitute a more “preferable” plan for that of the Commission, but only to assure that constitutional requirements have been met. See Schneider v. Rockefeller, 31 N.Y.2d 420, 340 N.Y.S.2d 889, 293 N.E.2d 67 (1972).
[538]*538The invalidity of appellants’ premise that there is a predetermined percentage deviation with which any reapportionment plan must comply is evident from the disruptive effect such a theory would have on the respective roles of the Legislature and the Court in reapportionment. Under appellants’ approach, the Court — rather than the legislative branch as represented by the Legislative Reapportionment Commission — would have the ultimate responsibility of deciding the precise mathematical formula to be applied in dividing the population of the state among legislative districts. This usurpation of the legislative function would not only be inappropriate but also might well interfere with the Commission’s ability to achieve the goals of compactness and preservation of subdivision lines with which appellants are concerned.
IV
It is well settled that, “in determining whether a good faith effort to establish districts substantially equal in population has been made, a court must necessarily consider a State’s legislative apportionment scheme as a whole.” Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713, 735 n.27, 84 S.Ct. 1459, 1473 n.27, 12 L.Ed.2d 632 (1964). We conclude that the Final Legislative Reapportionment Plan reflects a constitutionally permissible judgment on the part of the Commission that the deviations from mathematical compactness and political subdivision boundaries contained in the plan are necessary to achieve the overriding constitutional goal of districts “as equal in population as practicable.”
With a constitutional mandate- that there shall be 50 Senate districts and 203 House districts it is inevitable that some of the State’s 67 counties and 2,569 municipalities, with their widely divergent populations, must be divided among legislative districts. Yet, even with this large number of disparately populated political subdivisions and the closest adherence in the history of the Commonwealth to the ideal [539]*539of “one person, one vote,” the Commission’s Senate Plan has preserved the boundaries of 41 counties and all but two municipalities. So too, with the ideal population of a House district set at 58,456, a figure far exceeded by the populations of numerous counties and municipalities, the House Plan has nonetheless preserved the boundaries of 19 counties and all but 87 municipalities. None of the arguments presented by appellants convinces us that the drawing of district lines, which necessarily involves value judgments by the Commission, has been based upon impermissible considerations. Mere dissatisfaction with the fact that certain political subdivisions have been divided or have been included within particular legislative districts is not sufficient to invalidate the Final Reapportionment Plan as unconstitutional. Moreover, the Supreme Court of the United States has made clear that “neither history alone, nor economic or other sorts of group interests, are permissible factors in attempting to justify disparities from population-based representation.” Reynolds v. Sims, 377 U.S. at 579-80, 84 S.Ct. at 1391 (1964).
Allegations that districts have been the subject of gerrymandering to dilute the voting strength of minorities are not supported. A reapportionment plan may be invalid because it fences out a racial or ethnic group “so as to deprive them of their pre-existing municipal vote,” Gomillion v. Lightfoot, 364 U.S. 339, 341, 81 S.Ct. 125, 127, 5 L.Ed.2d 110 (1960), or because it operates “to minimize or cancel out the voting strength of racial or political elements of the voting population,” Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401 (1965). See Gaffney v. Cummings, 412 U.S. at 751, 93 S.Ct. at 2330. To sustain a constitutional claim that district lines have been racially or ethnically gerrymandered, it is essential to prove a discriminatory purpose. It must be proved that the challenged plan was “conceived or operated as [a] purposeful [device] to further racial discrimination.” Whitcomb v. Chavis, 403 [540]*540U.S. 124, 149, 91 S.Ct. 1858, 1872 (1971). Such proof is utterly absent here.8
V
Thus, we are satisfied that, as in 1971, this Commonwealth’s Legislative Reapportionment Commission has utilized the relevant population data to fashion a legislative districting plan in full compliance with both the Constitution of the United States and the Constitution of this Commonwealth. Accordingly, by the mandate of Article II, Section 17(e) of the Pennsylvania Constitution, the Final Plan of the Commission, filed October 13, 1981, shall have the force of law, and shall be used in all forthcoming elections to the General Assembly until the next constitutionally mandated reapportionment shall be approved.
Plan in compliance.
NIX and LARSEN, JJ., file dissenting opinions.
KAUFFMAN, J., files a dissenting opinion in which LARSEN, J., joins.