STRETTON ATTORNEY AT LAW 301 SOUTH HIGH STREET P.O.

BOX 3231 WEST CHESTER, PA 19381-3231 (610) 696—4243 FAX (610) 696—2919 January 9, 2012

SAMUEL C.

RECEIVED
JAN 1 ~

REAPPORTIONMENT

“‘V

TI~ BENJAMIN FRANKLIN HOUSE 834 CHESTNUT STREET, SUITE 206 PHILADELPHIA, PENNSflVI2TIA 19107 (215) 627—8653

Charles O’Conner, Jr., Executive Director 2011 Legislative Reappointment Commission 104 North Office Building Harrisburg, PA 17120—3079 Re: Mayor Carolyn Comitta, et al. v. 2011 Legislative Reappointment Commission

Dear Mr. O’Conner: Please be advised I represent the Petitioners, Mayor Carolyn Comitta, et al., in the captioned matter. Enclosed please find a copy of the Notice to Participate and Certificate of Service, a copy of which has been sent to the Supreme Court for filing. Also enclosed is the Petition for Review filed with the Pennsylvania Supreme Court. ry truly yours,

-Samuel C.

tretton

SCS: jac Enc. Cc: Honorable Linda Kelly, Attorney General of Pennsylvania VIA FEDERAL EXPRESS, OVER NIGHT DELIVERY

SAMUEL C. STRETTON ATTORNEY AT LAW 301 SOUTH HIGH STREET P.O. BOX 3231. WEST CHESTER, PA 19381—3231 (610) 696—4243 FAX (610) 696—2919 January 9, 2012

THE EENJMCN PRANaIN HOUSE

834 CHESTNUT STREET, SUITE 206 PHILADELPHIA, PENNSXLVANIA 19107 (215) 627—8653

Irene M. Bizzoso, Esquire Prothonotary Supreme Court of Pennsylvania Pennsylvania Judicial Center 601 Commonwealth Ave., Suite 4500 Harrisburg, PA 17120 Re: Mayor Carolyn Comitta, et al. v. 2011 Legislative Reappointment Commission

Dear Ms. Bizzoso: Please be advised I represent the Petitioners, Mayor Carolyn Comitta, et al., in the captioned matter. Enclosed please find the original and nine (9) copies of the Petitioners’ Petition for Review and Certificate of Service. Pursuant to your request, I am simultaneously sending a copy of the Petition for Review by Federal Express, over-night delivery to the Respondent. I have also enclosed a check in the amount of $73.50 for the filing fee. Finally, I have enclosed a copy of the “Notice to Participate” which was also sent by Federal Express to the Respondent. I would ask for your assistance in filing this of record, and if you would return a time stamped copy to me

Irene M. Bizzoso, Esquire January 9, 2012 Page Two in the self—addressed, stamped envelope provided, it would be most appreciated. Thank you. Very truly yours,

Samuel C. Stretton SCS : jac Enc. Cc: Charles O’Conner, Jr. Honorable Linda Kelly Mayor Carolyn Comitta Council President Holly Brown William J. Scott, Jr. Herbert A. Schwabe, II Jane Heald Close Floyd Robert Bielski David Laleike E. Brian Abbott Nathaniel Smith W. Donald Braceland VIA FEDERAL EXPRESS, OVER-NIGHT DELIVERY

SAMUEL C. STRET~ON
ATIORNEY AT LAW 301 SOUTH HIGH STREET WEST CHESTER, PENNSYLVANIA 19382

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BEFORE THE SUPREb~ COURT OF PENNSYLVANIA MIDDLE DISTRICT ~YOR CAROLYN COMITTA, COUNCIL PRESIDENT HOLLY BROWN,

: :

SUPRE~C COURT DOCKET

NO.

WILLIAM J. SCOTT, JR., HERBERT A. SCHWABE, II, JANE HEALD CLOSE, FLOYD ROBERT BIELSKI, DAVID LALEIKE, E. BRIAN ABBOTT, NATHANIEL SMITH and W. DONALD BRACELA}ID, PETITIONERS V. 2011 LEGISLATIVE REAPPOINT~NT COMMISSION, RESPONDENT NOTICE TO PARTICIPATE TO THE 2011 LEGISLATIVE REAPPOINTMENT COMMISSION: If you intend to participate in this proceeding in the Supreme Court, you must serve and file a Notice of Intervention

under Rule 1531 of the Pennsylvania Rules of Appellate Procedure within thirty (30) days. Respectfully submitted,

Samuel C. Stretton, Esquire Attorney for Petitioners, P.O. Box 3231 301 South High Street West Chester, PA 19381 (610) 696—4243 Attorney 1.13. No. 18491

BEFORE THE SUPRE~€ COURT OF PENNSYLVANIA MIDDLE DISTRICT MAYOR CAROLYN COMITTA, COUNCIL PRESIDENT HOLLY BROWN, WILLIAM J. SCOTT, .JR., HERBERT A. SCHWABE, II, JANE HEALD CLOSE, FLOYD ROBERT BIELSKI, DAVID LALEIKE, E. BRIAN ABBOTT, NATHANIEL SMITH and W. DONALD BRACELAND, PETITIONERS V. 2011 LEGISLATIVE REAPPOINT~CNT COMMISSION, RESPONDENT

:

SUPRE)~ COURT DOCKET NO.

PROOF OF SERVICE

I hereby certify I am this date serving a copy of the Notice to Participate in the captioned matter upon the following persons by Federal Express, over—night delivery, which services fulfills the requirements of Pa.R.A.P. 121: 1. Charles O’Conner, Jr., Executive Director 2011 Legislative Reappointment Commission 104 North Office Building Harrisburg, PA 17120—3079 Honorable Linda Kelly Attorney General of Pennsylvania ~ Floor, Strawberry Square Harrisburg, PA 17120 Respectfully submitted, Date Samu C. Stretton, Esquire Attorney for Petitioners 301 South High Street P.O. Box 3231 West Chester, PA 19381—3231 (610) 696—4243 Attorney I.D. No. 18491

2.

BEFORE THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT Mayor Carolyn Comitta 155 S. Brandywine Street West Chester, PA 19382 and Council President Holly Brown 122 E. Bittle Street West Chester, PA 19380 and William J. Scott, Jr. 405 N. FranWin Street West Chester, PA 19380 and Herbert A. Schwabe, II 133 W. Barnard Street West Chester, PA 19382 and Jane Heald Close 300 W. Virginia Avenue West Chester, PA 19380 and Floyd Robert Bielski 615 5. Bradford Avenue West Chester, PA 19382 and David LaLeike 400 W. Nields Street West Chester, PA 19382 and E. Brian Abbott 416 Clinton Alley West Chester, PA 19382 and Nathaniel Smith 513 W. Nields Street West Chester, PA 19382 and W. Donald Braceland 423 W. Nields Street West Chester, PA 19382, PETITIONERS No.

VS. 2011 Legislative Reapportionment Commission, RESPONDENT

PETITION FOR REVIEW In The Nature of An Appeal From The Final Plan of the 2011 Legislative Reapportionment Commission Splitting the Borough of West Chester In The New 156”~ and
160(h

Legislative Districts

Pursuant to Section 17(d) of Article 2 of the Pennsylvania Constitution and Pennsylvania Rule of Appellate Procedure 3321, the Petitioners, Mayor Carolyn Comitta, Council President Holly Brown, William J. Scott, Jr., Herbert A. Schwabe, Jane 1-leald Close, Floyd Robert Bielski, David LaLeike, F. Brian Abbott, Nathaniel Smith and W. Donald Braceland (“Petitioners”), as individual voters in the Commonwealth of Pennsylvania in either the
156th

or

160th

Legislative Districts, file this Petition for

Review, seeking this Court’s review of the December 12, 2011 final reapportionment plan (“Final Plan”) approved by the 2011 Legislative Reapportionment Commission (“Commission”). In support of the Petition, the Petitioners state as follows: Statement of Jurisdiction 1. The basis for the jurisdiction of this Court is Section 17(d) of Article 2 of the Pennsylvania Constitution and 42 Pa. C.S. 725(1), which provides that the Supreme Court shall have exclusive jurisdiction of appeal from final Orders of certain constitutional and judicial agencies, including the Legislative Reapportionment Commission.

2. This appeal is addressed to the Court’s appellate jurisdiction and is in the nature of a Petition for Review, pursuant to Rule of Appellate Procedure 3321. Identity of Parties Seeking Review 3. Mayor Carolyn Comitta is a citizen and resident of the Commonwealth of Pennsylvania residing therein at 155 S. Brandywine Street, West Chester, PA 19382. Further, she is the elected Mayor of the Borough of West Chester and a registered voter in Chester County, Pennsylvania in the
160th

Legislative District and brings this Petition

as an elected official and an individual registered Democratic voter who is aggrieved by the Final Plan. 4. Council President Holly Brown is a citizen and resident of the Commonwealth of Pennsylvania residing therein at 122 E. Bittle Street, West Chester, PA 19382. Further, she is the elected Council President of the Borough of West Chester and a registered voter in Chester County, Pennsylvania in the 1 56th Legislative District and brings this Petition as an elected official and an individual registered Democratic voter who is aggrieved by the Final Plan.

5. William J. Scott, Jr. is a citizen and resident of the Commonwealth of
Pennsylvania residing therein at 405 N. Franklin Street, West Chester, PA 19380. Further, he is also a registered voter in Chester County, Pennsylvania in the
156th

Legislative District and brings this Petition as an individual registered Democratic voter who is aggrieved by the Final Plan. 6. Herbert A. Schwabe, II is a citizen and resident of the Commonwealth of Pennsylvania residing therein at 133 W. Barnard Street, West Chester, PA 19382. Further, he is also a registered voter in Chester County, Pennsylvania in the I 56°’

Legislative District and brings this Petition as an individual registered Republican voter who is aggrieved by the Final Plan. 7. Jane Heald Close is a citizen and resident of the Commonwealth of Pennsylvania residing therein at 300 W. Virginia Avenue, West Chester, PA 19380. Further, she is also a registered voter in Chester County, Pennsylvania in the
156th

Legislative District and brings this Petition as an individual registered Independent voter who is aggrieved by the Final Plan. 8. Floyd Robert Bielski is a citizen and resident of the Commonwealth of Pennsylvania residing therein at 615 S. Bradford Avenue, West Chester, PA 19382. Further, he is also a registered voter in Chester County, Pennsylvania in the
160th

Legislative District and brings this Petition as an individual registered Republican voter who is aggrieved by the Final Plan. 9. David LaLeike is a citizen and resident of the Commonwealth of Pennsylvania residing therein at 400 W. Nields Street, West Chester, PA 19382. Further, he is also a registered voter in Chester County, Pennsylvania in the
160th

Legislative District and

brings this Petition as an individual registered Independent voter who is aggrieved by the Final Plan. 10. E. Brian Abbott is a citizen and resident of the Commonwealth of Pennsylvania residing therein at 416 Clinton Alley, West Chester, PA 19382. Further, he is also a registered voter in Chester County, Pennsylvania in the 16O~ Legislative District and brings this Petition as an individual registered Independent voter who is aggrieved by the Final Plan.

11. Nathaniel Smith is a citizen and resident of the Commonwealth of Pennsylvania residing therein at 513 W. Nields Street, West Chester, PA 19382. Further, he is also a registered voter in Chester County, Pennsylvania in the l6O~ Legislative District and brings this Petition as an individual registered Independent voter who is aggrieved by the Final Plan. 12. W. Donald Braceland is a citizen and resident of the Commonwealth of Pennsylvania residing therein at 423 W. Nields Street, West Chester, PA 19382. Further, he is also a registered voter in Chester County, Pennsylvania in the 160111 Legislative District and brings this Petition as an individual registered Independent voter who is aggrieved by the Final Plan. Identity of Respondent 13. The Respondent is the 2011 Legislative Reapportionment Commission. 14. Pursuant to Section 17(b) of Article 2 of the Pennsylvania Constitution, the Commission is composed of Senator Dominic Pileggi, the majority leader of the Senate; Senator Costa, the minority leader of the Senate; Representative Michael Turzai, the majority leader of the House of Representatives; Representative Frank Dermody, the minority leader of the House of Representatives; and the Honorable Stephen McEwen, the fifth member selected by this Court after the other four Commission members were unable to agree on a fifth member. Judge McEwen served as Chair of the Commission. Determination to be Reviewed 15. The determination for which the Petitioners seek review is the Final Plan for the Pennsylvania House for new Districts 156 and 160 splitting the Borough of West Chester. Attached and marked Exhibit “A” is the Final Plan for the Pennsylvania House

new Districts 156 and 160. Attached and marked Exhibit “B” is the map of the Final Plan for the Pennsylvania House Districts as published in the Daily Local News of Chester County on January 5,2012. Attached and marked Exhibit “C” is the Legislative District Plan for Chester County as published in the Daily Local News on January 5, 2012. Controlling Constitutional Provision 16. Section 16 of Article 2 of the Constitution states: “The Commonwealth shall be divided into fifty senatorial and two hundred three representative districts, which shall be comprised 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.” Article 2, Section 16 of the Pennsylvania Constitution (emphasis supplied). Relevant Procedural Background 17. Pursuant to Section 17(a) of Article 2 of the Pennsylvania Constitution, in 2011, the year following the Federal decennial census, the 2011 Legislative Reapportionment Commission was constituted for the purpose of reapportioning the Commonwealth. 18. Pursuant to Article 17(c) of Article 2 of the Pennsylvania Constitution, the Commission approved a preliminary reapportionment plan on October 31, 2011, by a 3 to 2 vote, with Commission members Costa and Dermody dissenting. (Preliminary Plan”). 19. The Preliminary Plan was not revealed to the Senate and House minority leader members of the Commission until one-half hour in advance of the time scheduled for voting on the Preliminary Plan and no meaningful opportunity for review of the Preliminary Plan was provided.

20. The Commission conducted public hearings on the Preliminary Plan on November 18 and November 23, 2011, and allowed for the submission of written comments and concerns. 21. During the course of the hearings, witnesses from across the Commonwealth testified as to the importance of not dividing political subdivisions unnecessarily. 22. A number of people of West Chester Borough objected to the redistricting at the hearing. Those persons included some of the Petitioners such as Mayor Carolyn Comitta, Nathaniel Smith, and William J. Scott, Jr. Also included among those persons were members of the West Chester University student body since West Chester University was also divided by the new Plan. 23. The aforementioned Final Plan divided West Chester, the County seat of Chester County. Wards 1, 2,6 and 7 in the Borough of West Chester are now in the new
1561h

Legislative District. Wards 3,4 and 5 in the Southern part of the Borough of West
160th

Chester are now in the newly created of West Chester was in the old
156th

Legislative District. Previously, the Borough

Legislative District.

General Statement of Objections to the Final Reapportionment Plan Splitting The Borough of West Chester in the
156h

Legislative District into the

New 136°’ and new 160°’ Legislative Districts 24. The Petitioners object to the determination that divides the Borough of West Chester, the County seat of Chester County, in half placing three Wards into the new 160th Legislative District and four Wards into the new 156°’ Legislative District. 25. Previously, all of the Borough of West Chester was in the 156°’ Legislative District.

26. This determination divides the County seat in half. 27. The said division violates the Pennsylvania Constitution under Article 2, Section 16. 28. This Constitutional section prohibits the division of townships and boroughs I forming a Representative District. “The Commonwealth shall be divided into fifty senatorial and two hundred three representative districts, which shall be comprised 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.” Article 2, Section 16 of the Pennsylvania Constitution (emphasis supplied). 29. The said division of the Borough of West Chester in half violates this particular provision of the Constitution. 30. The Petitioners have prepared an alternative plan, which maintains the Borough of West Chester in one Legislative District. Attached and marked Exhibit “D” is the alternative Plan where the Borough of West Chester can be maintained intact and meet all the requirements of the Redistricting. 31. There is no absolute necessity for dividing the Borough of West Chester. 32. Further, the Borough of West Chester, in 1987, was the subject of Court decisions and Findings that there had been 100 years of voting discrimination against the minority population. See In the Matter of Petition to Establish Wards in the Borough of West Chester, 36 Chester County Reporter 12(1988). This decision is attached and marked Exhibit “E”. 33. That decision found there had been intentional discrimination and disenfranchisement of the minority population.

34. The current division in West Chester will divide the minority voting block

and minority voters.
35. This objection being made now is that, because there has been a finding in the past of racial discrimination, the Borough of West Chester should not be divided. 36. Further, this would violate Section 5 of the Federal Voting Rights Act of 1965. For a district with a history of racial discrimination, there has to be a preclearance. 37. There is such a finding of past voting discrimination based on race in the Borough of West Chester, as referenced in the aforementioned In the Matter of Petition to Establish Wards in the Borou h of West Chester Opinion. 38. The Petitioners object based on case law in Pennsylvania, which precludes gerrymandering based on racial or ethnic bases. 39. Because of the past history of discrimination and because the minority population is split with the current gerrymandering in the Borough of West Chester, the Petitioners contend that this will dilute the voting strength of minorities in the new Legislative Districts. See In Re Reapportionment Plan for the General Assembly of Pennsylvania, 442 A.2d 661, 668 (Pa., 1981). 40. The Petitioners contend that the aforementioned new reapportionment fences out racial and/or ethnic groups with a purpose to minimize or cancel out the voting strength of racial or political elements of the voting population in the new Legislative Districts. 41. The Petitioners object that the redistricting of the Borough of West Chester into two Legislative Districts, the lS6~’ and
160Lh

does not meet the Constitutional

requirements of Article 2, Section 16 of the Pennsylvania Constitution.

42. The Petitioners object in that the division of the Borough of West Chester, which is primarily a Democratic borough where all elected officials are from the Democratic party, was an attempt by the Republican party to dilute the Democratic strength in the
156th

Legislative District and was done solely for the purpose of ensuring
156Lh

that a Republican will win the two new divided Districts, the

and

160th•

43. The Petitioners contend that there was no good faith effort by the Respondent, 2011 Legislative Reapportionment Commission, in establishing equal districts when they divided the Borough of Wcst Chester in half. 44. The Petitioners object in that the redistricting and cutting in half the Borough of West Chester fails to note that the County seat and Borough is a community that needs to be within one Legislative District to protect its shared interests. 45. Splitting the district into a lower half, the 160111, which goes into Delaware County and which has no connection with Chester County, ignores the community interest and Borough interest. Relief Requested by the Petitioners The Petitioners, by their counsel, Samuel C. Stretton, Esquire, respectfully request that this Honorable Court, pursuant to Article 2, Section 17(d) of the Pennsylvania Constitution, remand the Plan and direct the Commission to reapportion the Legislative Districts to allow the Borough of West Chester to remain intact since the current Plan violates Article 2, Section 16 of the Pennsylvania Constitution and also dilutes and divides minority votes. The request, therefore, is to include in the
156uhi

Legislative

District all Wards 1 through 7 of the Borough of West Chester, as reflected in the alternative proposal, which is attached and marked Exhibit “D”. Respectfiully u mi ed,

Samuel C. Stretton, Es’~th≥a Attorney for Petitioners Attorney ID 18491 301 S. High Street P.O. Box 3231 West Chester, PA 19381-323 1 610-696-4243

BEFORE THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT MAYOR CAROLYN COMITTA, COUNCIL PRESIDENT HOLLY BROWN, WILLIAM J. SCOTT, JR., HERBERT A. SCUWABE, II, JANE HEAJJD CLOSE, FLOYD ROBERT BIELSKI,

: :

SUPREME COURT DOCKET NO.

DAVID LALEIKE, E. BRIAN ABBOTT, NATHANIEL SMITH and W. DONALD BRACELAND, PETITIONERS V. 2011 LEGISLATIVE REAPPOINTMENT COMMISSION, RESPONDENT PROOF OF SERVICE I hereby certify I am this date serving a copy of the

aforegoing Petition for Review in the captioned matter upon the following persons by Federal Express, over—night delivery, which services fulfills the requirements of Pa.R.A.P. 121: 1. Charles O’Conner, Jr., Executive Director 2011 Legislative Reappointment Commission 104 North Office Building Harrisburg, PA 17120—3079 Honorable Linda Kelly Attorney General of Pennsylvania ~ Floor, Strawberry Square Harrisburg, PA 17120 Respectfull Date submi3tted,

2.

Samuel C. Str~tton, Esquire Attorney for Petitioners 301 South High Street P.O. Box 3231 West Chester, PA 19381—3231 (610) 696—4243 Attorney I.D. No. 18491

HOUSE OF REPRESENTATIVES DISTRICTS

Dist.

155

CHESTER County. Part of CHESTER County consisting of the TOWNSHIPS of East Brandywine, East Pikeland, Upper Uwchlan, Uwchlan, West Brandywine and West Vincent and the BOROUGHS of Phoenixville (PART, Wards Middle [PART, Division 01], North [PART, Division 03] and West [PART, Division 01]) and Spring City. Total population: 62,940

Dist.

156

CHESTER County. Part of CHESTER County consisting of the TOWNSHIPS of East Bradford (PART, District North), East Goshen, West Goshen and Westtown (PART, Precincts 01, 02, 03 and 05) and the BOROUGH of West Chester (PART, Wards 01, 02, 06 and 07) ~&I~opuatioi 62, 874 CHESTER and MONTGOMERY Counties. Part of CHESTER County consisting of the TOWNSHIPS of Schuylkill and Tredyffrin and the BOROUGH of Phoenixville (PART, Wards East, Middle [PART, Divisions 02 and 03], North [PART, Divisions 01 and 02) and West [PART, Divisions 02 and 03]) and Part of MONTGOMERY County consisting of the TOWNSHIPS of Lower Providence (PART, District 03 [PART, Divisions 01 and 02)) and Upper Providence (PART, Districts Mont dare and Oaks). Total population: 62,145 CHESTER County. Part of CHESTER County consisting of the TOWNSHIPS of East Marlborough, Highland, Kennett, London Britain, New Garden, Newlin, Pennsbury, Pocopson, West Bradford and West Marlborough and the BOROUGHS of Avondale and Kennett Square. Total population: 60,831

Dist.

157

Dist.

158

A

/‘

II

HOUSE OF REPRESENTATIVES DISTRICTS

Dist.

159

DELAWARE County. Part of DELAWARE County consisting of the CITY of Chester and the TOWNSHIPS of Chester, Lower Chichester, Nether Providence (PART, Ward 01), Ridley (PART, Wards 01 [PART, Division 01], 02 [PART, Division 02] and 07 [PART, Division 02]) and Upper Chichester (PART, Ward 02 [PART, Division 02]) and the BOROUGHS of Eddystone, Marcus Hook, Swarthmore (PART, Precincts Eastern and Western) , Trainer and Upland. Total population: 60,874

C~

~

CHESTER and DELAWARE Counties. Part of CHESTER County consisting of the TOWNSHIPS of Birmingham and East Bradford (PART, District South) and the BOROUGH of West Chester (PART, Wards and 05) and Part of DELAWARE County consisting of the TOWNSHIPS of Bethel, Chadds Ford, Concord and Upper Chichester (PART, Wards 01, 02 [PART, Division 01], 03, 04 and 05) Total population: 63,438

Dist.

161

DELAWARE County. Part of DELAWARE County consisting of the TOWNSHIPS of Aston (PART, Wards 01, 04, 06 and 07), Marple (PART, Wards 02 [PART, Division 02] and 05), Nether Providence (PART, Wards 02, 03, 04, 05, 06 and 07), Ridley (PART, Wards 01 [PART, Division 03], 02 [PART, Divisions 01 and 03], 03, 05, 07 [PART, Division 01] and 08), Springfield (PART, Ward 03 [PART, Divisions 02 and 02]) and Upper Providence (PART, Precincts 02, 03 and 05) and the BOROUGHS of Brookhaven, Parkside, Rose Valley, Rutledge and Swarthmore (PART, Precinct Northern). Total population: 63,144

~1ê~ES E-~

g73 ~
HOUSE OF REPRESENTATIVES DISTRICTS
District 13 CHESTER and LAN CASTER Counties. Part of CHESTER County consisthg of the TOWN SHIPS of East Nottingham. Elk, Fianfriin, London Grove. Londonderiy, toweroxford, New London,. Penn. Upper Oxford. West FaIk,wfiel& and West Nottingham and the BOROUGHS of Atglen,~OxforØ. and West Grove and Part of I.ANCASTER County consisting of the TOWNSHIP of Sadsbury and the BOROUGH of Chdstiana. Total population: 62.174 District 26 CHESTER and MONTGOMERY Counties. Part of CHESTER Cauqty cqnstst I the TOWNSHIPS of East Coventry, East Nantineal. EastVinc&it. Honey Brook. North Coventry, SbUth Coventry, Wallace. Warwick West CaIn, WestNantme6l and West Sadsbuiyandthe BOROUGHS — of Elverson and Honey Brook and Part of MONTGOMERY County consisting of the BOROUGH of Pottstown (PART. Districts 01.02 (PARE Division 01) and I]? IPAST DMisionO11).~rotalpcpuIationç 62,855 District 45 CHESTER County. Part of CHESTER County consisting of the Clii of Coatesville and the TOWNSHIPS of Cat East CaIn, East Fallowfield, Sadsbury and Valley and the BOROUGHS of Down ingrown, Modena, Parkesburg and South Coatestille. Total population: 62.890 District 155 CHESTER County. Part of CHESTER County consisting of the TOWNSHIPS of East Brandywine, East Rkeland, Upper Uwchlan, ~chlan, West Brand~iine and West Vincent and j)ie BOROUGHS of Phoenixville (PAST, Wards Middle (PART Division 01). North IPAJTE Divi~ioii’O3j and West (PART Division 01)) and Spring City. Total popviation: 62,940 District 156 CHESTER County. Part of CHESTER County consisting of the TOWNSHIPS of East Bradford (PART. District North). East Geshen, West Goshen and Westtown (PART Precincts 01.02,03 and 05) and the BOROUGH of West Chester (PART, Wards 01.02 06 and 07). Total population: 62,874 District 158 CHESTER County. Part of CHESTER County consisting of the TOWNSHIPS of East MacP borough. Highland, Kennett, London Britain, New Garden. Newlin, Paonsbury, Pocopson, West Bradford and West Marlborough and the BOROUGHS of Avondale and Kermett Square. Total popw lation: 60,831 Oistnct 160 CHESTER and DELAWARE Counties. Part of CHESTER Countyconsisting of the TOWNSHIPS of Birmingham and East Bradford (PART District South) and the BOROUGH of West Chester PART Wards 03, 04 and 05) and Part of DELAWARE County consisting of the TOWNSHIPS of Sethel, Chadds Ford, Concord and Upper Chichester (PART, Wards 01,02 [PART. Divisional), 04 and 05). Total population: 63.438 District 167 CHESTER County. Part of CHESTER County consisting of the TOWNSHIPS of Charlestown, East Wiiteland, Easttown, West Pikeland, West ~ATh’aeIand and Wllistown and the BOROUGH of Malvern. Total population: 62,591 District 168 CHESTER and DELAWARE Counties. Part of CHESTER County consisting of the TOWN SHIPS of Thombury and Westtown (PART Precinct D4) and Part of DELAWARE County consisting of the TOWNSHIPS of Aston (PART Wards 02, 03 and 05). Edgmont MiddletovaçNewtown (PART Precincts 01. 02, 04.05, 06 and 08). Thornbury and Upper Providence (PART Precincts 01 and 04) and the BOROUGHS of Chester Heights and Media Total population: 62,208

SENATORIAL DISTRICTS
District 09 CHESTER and DELAWARE Counties. Part of CHESTER County consisting of the TOWNSHIPS of Birmingham, East Goshen, East Marlborough, Kenneti, London Britain, New Garden, Newlin, Pannsbury. Pricop son, Thornbury and Westtown and the BOROUGH of Kennett Square and Part of DELAWARE County consisting of the Clii of Chester and the ItWNSHIPS of Aston. Bethel, Chadds Ford, Chester. Concord, Edgmont. Lower Chichester, Middletown, Nether Providence, Thornbury and Upper Chicfiester and the BOROUGHS of Brookhaven, Chester Heights. Eddystone, Marcus Hook, Parkside, Rose

44

CONSTITUTIONALLY COMPLIANT PROPOSAL FOR REDISTRICTING
Dist. 156 CHESTER County Part of CHESTER County consisting of the TOWNSHIPS of East Bradford (PART District South, Precinct 01), East Goshen, West Goshen, and the BOROUGH of West Chester. Total Population: 62,282

Dist. 158 CHESTER County Part of CHESTER COUNTY consisting of the TOWNSHIPS of East Bradford (Part, District North, District South Precinct 02), Highhind, East Marlborough, Kennett, London Britain, New Garden, Newlin, Pennsbury, West Bradford, and West Marlborough and the BOROUGHS of Avondale and Kennett Square. Total Population: 62,262

Dist. 160 CHESTER and DELAWARE Counties Part of CHESTER County consisting of the TOWNSHIPS of Birmingham, Thornbury, and Pocopson and Part of DELAWARE County consisting of the Townships of Bethel, Chadds Ford, Concord, Thornbury (PART, District 01, 02, 04, 05), and Upper Chichester. Total Population: 63,236

Dist. 168 CHESTER and DELAWARE Counties Part of CHESTER County consisting of the Townships of Westtown and Part of DELAWARE County consisting of the townships of Aston (PART Wards 02, 03, 05), Edgmont, Middletown, Newtown (PART Precinct 0 I, 02, 04, 05, 06, 08), Thornbury (PART District 3), and Upper Providence (PART, Precincts 01, 04), and the BOROUGHS of Chester Heights and Media. Total Population: 61,571

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12 CRESTER COUNTY REPORTS In The Matter Of The Petition To Establish Wards In The Borough Of Wst Chester

( 36 Ches. Co. Rep.

12 (1988))

CHESTER COUNTY REPORTS In The Matter Of The Petition To Establish Wards In The Borough Of West Chester

13

In the Matter of the Petition to Establish Wards in the Borough of West Chester (Opinion #1)
Constitutional law Borough Code, 53 PS. §45601, et seq.—Jurisdicuon—Riglit to vote Equal protection Vote dilution. 1. Under the Borough Code, 53 P.S. §45601, the Court of Quarter Sessions has the authority and power to alter, amend or otherwise change voting districts. 2. The nght to vote in local, state and federal elections, and to have those votes counted, is a constitutionally protected right.

Stively, S. 1, September 9, 1987:—
DECISION

The instant matter, which was commenced pursuant to the Borough Code, 53 P.S. §45601, et seq.. by the filing of a petition signed by some 654 registered
voters in the Borough of West Chester, seeks the division of the said Borough into wards for purposes of voting in councilrnanic elections. Following the presentation of extensive evidence by petitioners and intervenors, (7 hearings, 1115 pages of testimony, 55 exhibits) we enter the following findings of fact and conclusions of law. FINDINGS OF FACT 1. The Borough of West Chester, Pennsylvania, the seat of county government for the County of Chester, has a population of 17,435 according to the last decennial (1980) census. (N.T. 4/14/87, 30, 82).
C

M

7<

3. The right to vote may be enforced under the Equal Protection clause of the Federal Constitution in that each citizen’s vote must have the same significance and impact as that of every other citizen. 4. The Equal Protection clause is violated, and the right to vote is unconstitutionally impaired when the weight of the vow of one citizen is in a substantial fashion diluted as compared to the weight given the vote of another citizen living in another part of the state or municipality. 5. Voting systems which operate to minimize or cancel out the voting strength of racial minorities are not unconstitutional per se. 6. The test for unconsitutionality is whether the political processes are not open to participation to the minority group in a meaningful way 7. To show impermissible vote dilution, the Petitioner must prove both intent and results by a preponderance of the evidence. 8. On petition to change the current system of electing members to West Chester Borough Council, which is an at-large system, to one of ward representation, the Court He14 the Court has jurisdiction over the subject matter and the parties pursuant to the Borough Code. The Court further He14 (1) the current system was implemented (in 1892) with the intention of depriving the black citizens of West Chester of their right to vote by minimizing the impact and strength of each vote relative to the vote of the white citizens; (2) the current system has resulted in the discriminatory effects of preventing the election of Borough Council members who are responsive to the needs of the Black electorate; and (3) that West Chester’s current system is violative of the Equal Protection clause of the Federal Constitution, is invalid, and must be replaced by a Ward Representation system. I.lXfl. C.? Chester County, No. 85-07949, Civil Action Establish Wards in the Borough of West Chester. &ztnuel C Stretron, for petitioners. Law; In the Matter of the Petition to

+

2. Twenty percent (20%) of the population of the Borough of West Chester is black. (N.T. 12/19/86, 60, 63; Exhibits P-l0 through P-21). 3. The local government of West Chester Borough consists of a mayor and a seven-member Borough Council, whose members serve four-year terms. (N.T. 1/29/87, 337-339; 4/14/87, 10; Exhibit P.5). Presently, four members of Borough Council were elected in the municipal election of 1985, three members will be elected in the municipal election scheduled for November, 1987. 4. There are twelve voting precincts located throughout the Borough of West Chester with polling places designated therein for voting in all national, state and local elections. (Exhibit P-2). 5. The majority of the black population in West Chester resides in what is presently the Third, Fourth and 9-1 Precincts. The remaining precincts have a predominantly white population; there are no other precincts in West Chester with a predominantly black or non-white populace. (N.T. 12/19/86,209-21,3536, 53-54; 1/29/87, 330-336; 3/16/87, 28-29, Exhibit P~9A).

it

6. Since 1892, voting in councilmanic elections has been conducted at large whereby all residents of the Borough vote for the same candidates or group of candidates and those candidates who are the top vote-getters are elected to Borough Council. (Exhibit P.8). 7. In 1875, the Borough of West Chester converted from an at-large electoral system to a defacro four ward system. Between 1882 and 1892, a total of five black residents were elected to and served one-year terms on Borough Council. (NJ. 1/29/87, 387400; 3/16/87, 31-32, Exhibit P.8). 8. By 1886, the black population in what was then the east ward had

Daileti Hemphill for intervenors.

14

CHESTER COUNTY REPORTS

In The Matter Of The PetWon To Establish Wards In The Borough Of West Chester

t 36 Ches. Co. Rep.

12(1988)) 408, Exhibit R9B).

CHESTER COUNTY REPORTS In The Mane, Of The Petition To Establish Wards In The Borough Of West Chester

15

become nearly equal to the white population in that area The black citizens voted cohesively and were therefore able to elect all of the east ward representatives that year. (N.E 1/29/87, 388-389, 392; Exhibit P.8). 9. Following the council election of 1886, a petition was presented to the county Court of Common Pleas to divide the east ward into two separate voting precincts. If granted, the effect would have been the reduction of the voting strength of the black residents of that area while increasing the voting power of the ward’s white residents. The petition was subsequently denied and the ward system continued to operate. (N.E 1/29/87, 388-392). 10. In 1892, the Baker Ballot Law was passed which apparently prompted the Borough government to again consider dividing the wards. Various options were considered, among these, dividing the east ward into three precincts by drawing the lines so as to cluster the black neighborhoods along the precinct lines while merging them with the larger, predominantly white neighborhoods in each precinct. Increasing the number of council people to nine was also considered, so as to reduce the black representation from one in seven to one in nine. (N.E 1/29/87, 392-395; Exhibit P.8). 11. Later in 1892, all ward voting in both the candidate selection and election processes was abolished and was replaced by the at-large system. This was apparently done with the intention of reducing or diluting the voting power of the black voters. (N.E 1/29/87, 395-398; 3/16/87, 9-10, Exhibit P.8). 12. After 1892, no other black council persons were seated until 1968 when one Fred Beckett was appointed to fill a vacancy. Mr. Beckett thereafter ran for re-election, but was defeated. (N.E 12/19/86, 4546; 3/16/87, 15-19.) 13. In 1971, Robert Butler, a black, was appointed to fill a then-open council seat. Mr. Butler was subsequently re-elected in 1973 and served one full, four-year term. (N.T. 12/19/86, 45-56; 3/16/87, 35-36 14. In 1985, Anne AcHe, a black woman, was elected to Borough Council when she ran as part of a unified Democratic party ticket. (N.E 12/19/86, 4849, 51; 1/29/87, 346-347, 352-354; 3/16/87, 35). 15. Neither Fred Beckett, Robert Butler or Anne AcHe were residents of the Third or Fourth Precincts. (N.E 12/19/86, 45-49; 3/16/87, 35). 16. At present, there are no blacks serving on any of the governmental service boards such as Zoning Hearing, Fire or Planning. (N.E 12/19/86, 5559). 17. Between 1980 and 1983, three of the elected members of Borough Council were residents of the First Precinct. In 1984, four of the seven council persons serving resided in the First Precinct. All of the councilpersons who served during those years were white. (N.T. 12/19/86, 52-53; 1/29/87, 275-276; 407-

18. Between 1980 and 1983, the Fifth, 6-2, Seventh and 9-1 Precincts each had one elected councilperson serving on Borough Council. (N.E 1/29/87, 406407; Exhibit P-9B). 19. Between 1980 and 1985, there were no councilpersons elected from the Second, Third, Fourth, 6-1, 6-3 and 9-2 Precincts. (N.E 1/29/87, 403-406; Exhibit P9B). 20. On the present Borough Council, three members and the Mayor are residents of the First Precinct. (N.T. 12/19/86, 51; 1/29/87, 274-276,407409). 21. In 1977, Mitchell Crane, a resident of the Fifth Precinct, was elected to Borough Council and subsequently served from 1978 to 1982. Prior to Mr. Crane’s election, no one had been elected to Borough Council from the Fifth Precinct in at least twenty-five years. (N.E 3/16/87, 164-165). 22. Prior to Mitchell Crane’s election to Borough Council, the residents of the Fifth Precinct had repeatedly registered complaints about inadequate parking, the extensive conversion of single-family homes to boarding houses and apartments, and insufficient maintenance of area parks and recreation facilities, before Council without result. Within six months of Mr. Crane’s election, Borough Council had passed ordinances designed to remedy these problems. (N.E 3/16/87, 166-168). 23, At various times over the last twenty years, the residents of the Third Precinct have registered numerous complaints about the excessive travel of heavy trucks along their neighborhood streets to the members of Borough Council. As a result, the Third Precinct residents have been forced to make costly repairs to their damaged water lines. Borough Council, however, has never addressed or attempted to resolve this problem. (NT. 1/29/87, 500-504; 12/19/86, 71-72). 24. With the exception of the Third, Fourth and 6-3 Precincts, every precinct in the Borough of West Chester has at least one municipally owned or supported recreation facility or urban residential park; there are no municipal parks or recreation facilities in either the Third, Fourth or 6-3 Precincts. (N.E 1/29/87, 372-375; 12/19/86, 74-79). 25. Residents of those precincts which regularly have no one serving on Borough Council generally believe that they do not have adequate means to address their complaints to Borough government insofar as councilpersons who do not reside in their neighborhoods are unfamiliar with the problems and difficulties which exist therein. (N.E 12/19/86, 81-85; 1/29/87, 499-505; 3/ 16/87, 167-169, 186-187). 26. In the 1977 general election for Borough Council in which there were four available seats. John Harris ~ hbirk Rpn,,hlir’nn woe flu. vvth nlnna

16

CHESTER COUNTY REPORTS a The Mailer Of The Petition To Establish Wards In The Borough Of West Chester [36 Ches. Co. Rep. 12(1988))

CHESTER COUNTY REPORTS In The Matter Of The Petition To Establish Wards In The Borough Of ~Vest Chester

candidate with a vote total of 1,756. Mr. Harris, who missed obtaining a council seat by only 13 votes, received twice as many votes as any other candidate in the Third Precinct and 34 more votes than the candidate who ultimately defeated him in the Fourth. (N.T. 1/29/87, 338-340, 451-452; Exhibit P.6). 27. In the 1979 Borough Council race in which there were six candidates running for three positions (three from each party), Anderson Porter, a black, received more votes than any other candidate in the Third, Fourth and 9-I Precincts and finished second in the Fifth Precinct. Nevertheless, Reverend Porter missed election by 112 votes. (N.T. 1/29/87, 340-341, 450-451; Exhibit P-6). 28. In 1983, Judy Ray, a black Democrat who ultimately finished last in the balloting out of a field of six candidates, was the top vote-getter in both the Third and Fourth Precincts and fmished second in 9-I. (NJ. 1/29/87,356-357; Exhibit P-6). 29. In the November, 1985 Borough Council election in which the Democratic ticket swept all four openings, Anne Aerie, a black woman, and Richard Fazio finished tied for first place. In the Third, Fourth and 9-1 Precincts, however, Mrs. Aerie had 25, 23 and 53 votes more, respectively, than her closest competitor. (N.t 1/29/87, 352-355; Exhibit P-6). 30. Norman Bond, a black resident of the third precinct, was a three time unsuccessful candidate for Borough Council on the Democratic ticket in the 1970’s. Insofar as he does not believe that he could ever be elected under the present at-large system, Mr. Bond, a former recreation commission president, has stated that he refuses to ever run for office again. (NT 1/29/87, 491-499). 31. Leon Bell, a black teacher and former West Chester resident active in community affairs, never ran for Borough Council solely because he believed that he could not win. (NJ. 3/16/87, 3943). 32. As the election returns for Borough Council for the years 1977-1985 demonstrate, black candidates consistently run well in the Third, Fourth, and 9I Precincts and the black population in those precincts votes consistently for black candidates and on issues of interest to the black community. White voters, on the other hand, generally vote for white candidates. (NT. 1/29/87, 466468). 33. The at-large system in the Borough of West Chester consistently discourages qualified black individuals from participating in local government. (N.T. 1/29/87, 461465, 491-499; 3/16/87, 3943). DISCUSSION As noted above, this case involved the alleged violation of the voting rights of certain segments of the population of the Borough of West Chester and relief is sought in accordance with the following provision of the Borough Code, 53 P.S. §45601:

“The Court of Quarter Sessions, upon petition, may divide boroughs into wards, erect new wards out of two or more adjoining wards or parts thereof, consolidate two or more wards into one ward, divide any ward already erected into two or more wards, alter the lines of any two or more adjoining wards or cause the lines or boundaries of wards to be ascertained or established or abolish all wards. No borough shall be divided or redivided into more than tlurteen wards.” By way of their initial pleading, the petitioners herein have specifically asserted that the current system for electing the members of West Chester Borough Council fails to provide adequate or fair representation for all residents of the Borough and that the establishment of wards for purposes of voting in Council elections is necessary to achieve that result.2 Consequently, the threshold issue in this case, as we perceive it, is whether all of the voters in the Borough are given equal representation on Council, regardless of their race or religion or the neighborhood or precinct in which they live.3 It has long been held that all qualified voters have a constitutionally protected right to vote in state and federal elections and to have their votes counted. United States it Mosleft 238 U.S. 383, 35 S.Ct. 904, 59 L.Ed. 1355 (1915). That this rationale applies to all local as well as state and federal elections
‘This provision has been repealed insofar as it is inconsistent with the later enactment of 53 PS. ~ 11604, which is captioned “Petition for Reapportionment.” See Also: 53 P.S., II 609(a)(7). The sections arc consistent, for our current purposes, in that each grants this court jurisdiction over the subject matter of this petition. 1The precise language of the petition is as follows: “3. Petitioners believe, and therefore aver, that a ward system for the election of public officials, specifically for the election of Borough Council members in the Borough of West Chester, is necessary for the fair representation of all segments of the population and all geographical areas of the Borough of West Chester. Petitioners further endorse and suggest the adoption of the division into six wards proposed by the Revitalization Committee (September 18, 1985) of the West Chester Borough Council, such wards would be as follows: Ward A consisting of the presently existing precinct I Ward B consisting of the presently existing precincts 2, 3, and 4 Ward C consisting of the presently existing precinct 5 Ward I) consisting of the presently existing precincts 6-2 and 6-3 ~rd E consisting of the presently existing precincts 6-I, 7 and 8 Ward F consisting of the presently existing precincts 9-1 and 9-2” 3W1,ile we agree with the Intervenors’ contention that the decision to divide the Borough of West Chester into ward, presents a political question, the resolution of which is more properly a legislative rather than a judicial function, no arm of local government, including Borough Council itself has thus far been willing to tackle the issue. As so often happens in such controversial matters, this case has made its way to this Court and it is now our obligation to decide it. See Baker ~ Carr, 369 U.S. 186, 82 S.Ct. 691,7 LEd.2d 663 (1962).

18

CHESTER COUNTY REPORTS

in The Matter Of The Petition To Establish Wards In The Borough Of West Chester

(36 Ches. Co. Rep.

12 (1988)]

CHESTER COUNTY REPORTS In The Matter Of The Petition To Establish’ Wards in The Borough Of SWat Chester

is similarly well-settled. Avery u Midland Counry~ Texas, 390 U.S. 474, 88 S.Ct. 1114,20 L.Ed.2c1 45(1968); Penn Hills Township Rediyision, 216 Pa.Super. 327, 264 A.2d 429 (1970); In Re Petition to Abolish Wards in Hanover Township, 45 Pa.Cmwlth. 146,405 A.2d 586(1979). According to the U.S. Supreme Court in the apportionment case of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, L.Ed.2d (1964), this viewpoint has its origins in: the concept of equal protection, which has been traditionally viewed as requiring the uniform treatment of those persons standing in the same relation to the governmental action questioned or challenged. With respect to the allocation of legislative representa tion, all voters, as citizens,. stand in the same relation regardless of where they live. Since the achieving of thir and effective representation for all citizens in concededly the basic aim of Legislative apportionment, we conclude that the Equal Protection Clause guarantees the opportunity for equal participation by all voters in the electoral process. Diluting the weight of votes because of plate of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discrimination based upon factors such as race or economic status. 377 U.S. at 566, 84 S.Ct. at 1383-1384; (citations omitted).
. . . .

Ct. at 1384-1385? Although it has long been recognized that multimember districts and at large voting schemes may operate to minimize or cancel out the voting strengti of racial minorities in the voting population, such voting systems are not deemec unconstitutional per se.6 Thornburg v. Gingles, U.S.______ 1063. Ct.2752 2765, 92 L.Ed.2d 25 (1986); White M Regester, 412 U.S. 754, 93 S.Ct 2332, L.Ed.2d (1973); Burns it Richardson, 384 U.S. 73, 88, 8( S.Ct. 1286, 1294, 16 L.Ed.2d 376 (1966). As a general rule, then, the burder is on the plaintifl~ to produce evidence to support a finding that the politica processes leading to nomination and election are not open to participation b) a particular minority group—that its members have less opportunity than othe: residents to participate in the political processes and elect the representatives o their choice. White it Regester, supra., 93 S.Ct. at 2339; Whitcomb it Chavis 403 U.S. 124, 91 5.0. 1858, 29 L.Ed.2d 363 (1971). Moreover, in vote dilution cases brought on equal protection grounds, thc
test is one of proving both “intent” and “results” by a preponderance of thc evidence.’ Specifically, plaintiffs in such cases are required to demonstrate first that the voting mechanism being challenged was intentionally created or operatec to diminish the political efficacy of a particular raciaL group; and second, that thc said mechanism had the discriminatory impact and intended effect. Davis 5WhiIe we note that the constitutional safeguards afforded by the Fourteenth and Fifteenti Amendments were essentially codified in Section 2 of the Federal Voting Rights Act, 42 U.S.C 1973, that Act was never plead by these petitioners and it therefore has no application here See.’ S.Rep.No. 417, 97th Congress 2d Seas. 193 (1982); U.S. Code Congressional S Administrative News 1982, p. 196. Consequently, only that evidence which goes to the issu. of equality of representation can be considered in these proceedings. We note further that ha the instant petition to establish wards been commenced pursuant to the Voting Rights Act o been amended to aver a Section 2 violation, this Court would have been divested of it jurisdiction insofar as the U.S. District Courts have the exclusive power to hear such cases See Generally: 28 U.S.C. 1331, 1343(3) (4); 1965 U.S. Congressional & Administrative New 2437. ‘The theoretical basis for this type of impairment is that where minority and majority voter consistently prefer different candidates, the majorit3c by virtue of its numerical superiority, wit regularly defeat the choices of minority voters. Thornburg it Ging(es supra., 106 S.Ct. at 276~ 7With the 1984 VoLing Rights Act amendment, the test in vote dilution claims brought unde Section 2 of that Act is now simply one of “results,” Congress having thereby specificall rejected the Supreme Court’s plurality holding in City of Mobile it .Bolden, 446 U.S. 55, lOt S.Ct. 1490, 64 L.Ed.2d 47 (1980), which required a showing that the contested electora practice was adopted or maintained with the intent to discriminate against minority voten Thornburg Gingles, supra., 106 S.Ct. at 2763. See Also: S. Rep. 16, U.S. Code Cong. S Admin. News 1982, p. 193. Subsequent U.S. Supreme Court decisions, however, have mad’ it clear that a showing of intentional discrimination is still required to make out a case brough under the Fourteenth and Fifteenth Amendments. See Generalfr Davis p. Bandemer,_ U.S , 106 Sf1’. 2797W L.Ed.21~ (1986).

Interference with an individual’s voting privileges therefore constitutes a violation of the equal protection guarantees of the Fourteenth and Fifteenth Amendments to the U.S. Constitution, and the mere fact that a citizen is permitted to physically cast his or her vote is not, in and of itself, dispositive of this issue.4 Additionally, each citizen’s vote must have the same significance as that of every other citizen and the equal protection clause is violated and an individual’s right to vote is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with the votes of other citizens living in another part of the state or municipality. Reynolds it Sims, supra., 377 U.S. at 566-567, 84 S.

1~

4Essentially, those Amendments state, in pertinent part: Amendment XIV Section 1.. . . No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shalt any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within itsjurisdiction the equal protection of the laws. Amendment XV Section I. The right of citizens of the United States to vote shall not be denied or abridged by the United Stated or by any state on account of race, color or previous condition of servitude.

20

CHESTER COUNTY REPORTS In The Matter Of The Petition To Establish Wards In The Borough Of West Chester (36 Ches Co. Rep.

[

r
12(1988)] CHESTER COUNTY REPORTS In The Matter Of The Petition To Establish lYards In The Borough Of West Chester
2I

Bandemer, U.S. 106 S.Ct. 2797, 2808, 92 L.Ed.2d 85 (1986); Hunter v. Underwoo4 471 U.S. 222, 105 S.Ct. 1916, 85 L.Ed.2d 254 (1985); In Re Reapportionment Plan for Pennsylvania General Assenzbly~ 497 Pa. 525,442 A.2d 661 (1981). Although in the instant case, petitioners have not expressly averred that the current at-large system violates their Fourteenth and Fifteenth Amendment rights, we find that the allegation that “a ward system for the election of. borough council members. .is necessary for the fair representation of all segments of the population and all geographical areas of the Borough of West Chester” does indirectly allege just such an equal protection violation. See Reynolds it Sims, supra. Accordingly, petitioners here must prove both of the “intent” and “results” prongs to be successful.
-, . . .

The evidence here presented establishes that the chief purpose behind the institution of the present at-large system was to reduce the voting power which the black residents had previously enjoyed under the defacto ward system. (See: NT. 1/29/87, 387-400; Exhibit P-8). Thus, insofar as intentional disenfranchise ment was clearly a motivating factor behind the adoption of the mechanism used today for the election of the Borough’s public officials, we find that petitioners have sufficiently satisfied the first prong of the equal protection test. See Generally: Hunter it Underwoo4 supra_ 105 S.Ct. at 1919, citing Arlington Heights it Metropolitan HousingDevelop,ne,’j Coip., 429 U.S. 252,270,97 S.Ct. 555, 566, L.Ed.2d~ (1977) and Mt Healthy City Board ofEducation it Doyle, 429 U.S. 274,287, 97 S.Ct. 568, 576, 50 LEd.2d 471 (1977). We further find that the second prong of establishing art equal protection violation. ~that of discriminatory effects, has also been proven by these petitioners. For one, the evidence shows that, with two exceptions, no black candidates have been eLected to Borough Council since 1892. (See: N.T. 12/19/ 86, 45-46, 48-49; Exhibit P-8). The evidence further shows that, of those blacks who have served on Borough Council since 1892, none were residents of the predominantly black third or fourth precincts.
.

recreation facilities in the third or fourth precincts. (See Ni’. 12/19/86, 74-80, 133-134; 1/29/87, 372-375). Problems and complaints with truck traffic, damaged water lines and flooding unique to the third and fourth precincts have essentially gone unanswered by Council. (See N.T. 12/19/86, 77-84, 165-168, 208-209; 1/29/87, 500-505). Insofar as evidence of each of the preceeding factors has consistently been held sufficient to support a finding of unconstitu tional vote dilution, we similarly now find that the plaintiffs-petitione~ in the instant case have successfully established, by a preponderance of the credible evidence, that the Borough of West Chester’s at-large system for electing local officials is violative of the Fourteenth and Fifteenth Amendments to the U.S. Constitution. See Generally: Davis it Bandemer, U.S._.~ 106 5.0. 2797, 92 L.Ed.2d 85 (1986); Rogers it Lodge, 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982). Accordingly, we now adopt the following CONCLUSIONS OF LAW I. This Court has jurisdiction over the subject matter and the parties to this litigation pursuant to The Borough Code, 53 P.S. §45601, eL seq. 2. The current at-large system of electing the members to West Chester Borough Council was implemented in 1892 with the intention of depriving the black citizens of West Chester of their constitutionally-protected right to elect the representatives of their choice. 3. The current system of electing Borough Council members at-large continues to have the same discriminatory effects as when it was first implemented by submerging the black vote in the white majority, and thereby diluting the political effectiveness of the votes cast by the black citizenry. 4. West Chester’s current at-large system for electing borough councilper sons is therefore violative of the 14th and 15th Amendments to the U.S. Constitution and the petitioners herein are entitled to relief in the form of an Order dividing the borough into wards for purposes of voting in Council elections, ADDENDUM Thus we are hereby ruling that the present at-large system for the election of members of West Chester Borough Council violates the rights of the petitioners under the 14th and 15th Amendments to the Federal Constitution. Said at-large system must therefore be set aside. In its place, the Court Orders a Council election system requiring the division of the Borough into wards, with each ward then being represented on Council. Obviously, the first step in carrying out this change is to determine the number and boundaries of the wards. Both petitioners and intervenors have submitted recommendations and evidence on this issue, and the same has been

Moreover, as is reflected by the borough council elections of 1977, 1979, 1983 and 1985, those candidates who are heavily favored by the black community cannot and do not win without the electoral support of the white voting majority. (See N.T 1/29/87, 466). The black vote is thereby effectively submerged in and diluted by those votes cast by the larger white populace and, as a result, many black residents are now reluctant to participate in the political process. Consequently, black candidates seldom run for public office in the Borough of West Chester. (See N.T. 1/29/87, 338-356, 491-499; Exhibit P.8). In addition, Borough Council is frequently unaware of and unresponsive to many of the needs of the black community. Unlike nearly all of the other districts in the borough, there are no municipally owned or funded parks or

7

22

CHESTER COUNTY REPORTS
In The Matter Of The Pe(ition To Establish Wards In The Borough Of West Chester

[36 Ches. Co. Rep.

carefully considered by the Court. However, this is a matter of substantial importance and concern to all the citizens of West Chester not just these litigants. Therefore, the Court believes that a prompt public hearing must be held so that all citizens of the Borough will have an opportunity to be heard on the subject aforesaid, viz., the number and boundaries of the wards.
-

Further, we must also determine the effective date of the implementation of the ward system. At the up-coming municipal election (November 3rd, 1987), three West Chester Borough Councilpersons will be elected, presumably from among those nominated in the 1987 spring primary held under the at-large system. it seems clear that the ward system cannot be utilized at an election among nominees selected under the at-large system. This issue (the proper cffective date of the ward system) was never addressed by either party at the numerous hearings held in this matter. Therefore, the issue of the effective date, wifl also be considered at the public hearing described above,
-

ORDER AND NOW, this 9th day of September, 1987, after numerous hearings, for the reasons set forth in the foregoing Findings of Fact, Discussion, and Conclusions of Law, it is ORDERED that the present method of nomination and election of members of West Chester Borough Council, i.e., the method known as the “at-large” system, shall be SET ASIDE as being violative of petitioners’ rights under the 14th and 15th Amendments to the Federal Constitution. In its stead, the “ward system” of nomination and election of Councilpersons will be utilized. For the reasons set forth in the Addendum, the number, and boundaries of the wards and the effective date of the implementation of the ward system will be Ordered by this Court following a public hearing, on these two tscuec only to be held on Monday, September 28, 1987 at 7:30 PM. in Court Room No. 1, Court House, West Chester, PA. Due notice of the time and place of the aforesaid public hearing shall be given by advertisement in the Daily Local News once a week for the weeks of September 14th and 21st. At said public hearing, members of the public desiring to be heard shall be considered to be Court witnesses, and thus subject to cross-examination by both litigants. Further, at said public hearing, the parties to this action may submit evidence on the two issues as aforesaid, but said parties will not be permitted to repeat evidence previously given.’

‘Precedent for this method of handiing this situation can be found in a 1987 Order of the U.S. District Court for the Central District of Illinois in McNeil el at City of Spring!1e14 Ill et at, No., 85-2365. Therein, the Court found a violation of the Federal young Rights Act; found that the plaintiffs were “entitled to a remedy”; and set a later hearing “to declare a remedy”

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