By Ben Present
Of the Legal Staff
The state Supreme Court, exercising its King’s Bench powers, has ordered Rep. Samuel H. Smith, R-Jefferson, the speaker of the state House of Representatives, to issue special election writs for six vacancies in the House.
The decision from the high court grants the request of 11 citizens, at least one from every district, who asked the high court to guarantee them elected representation after challenges to the state Legislative Reapportionment Commission’s 2011 legislative maps garnered unprecedented remand from the Supreme Court.
Smith had argued that a provision in Section 2778a of the Election Code allowed him to delay the writs of election indefinitely until a final reapportionment plan has the force of law, the court said.
But the justices disagreed, noting the right to be represented trumped that provision. The 4-3 court said in a per curiam order Wednesday that the provision “obviously is in tension with the plain terms of the Constitution.”
Following the order, the special elections to fill the House vacancies were set to be held on April 24, the same day as the Pennsylvania primary election. In a footnote, the court said the General Assembly has yet to take action to push the primary back. The special elections would fill seats that were elected November 2010 and will finish out 2012. They would run along the 2001 legislative lines and the newly elected representatives would “merely step into the shoes of their predecessors,” the court said.
“We find that petitioners here have met their burden and are entitled to a writ of mandamus ordering  Smith to issue writs of election for special elections to fill the currently vacant seats in the House of Representatives,” the order said. “The right at issue is the fundamental right to representation in these House districts.”
The vacancies fall in Legislative Districts 22, 134, 153, 169, 186 and 197, the order said. Three of those district seats are in Philadelphia County.
Justice Thomas G. Saylor filed a dissenting statement in which he agreed with Smith that Section 2778a granted him discretion to put off issuing writs of special election until a final reapportionment plan. Justices Joan Orie Melvin and J. Michael Eakin joined Saylor.
Eakin filed a separate dissenting statement, joined by Orie Melvin.
Kevin Greenberg, one of the attorneys for the petitioners, said that if the court had ruled the other way, more than a quarter of a million Pennsylvanians would likely not have been represented for the upcoming hearings on the state budget.
“We’re gratified the court recognized the importance of representation of these approximately 350,000 citizens,” said Greenberg, of the Philadelphia office of Flaster Greenberg. “The speaker was abusing his authority and was on course to unnecessarily extend the disenfranchisement due to these six representatives being elected to other [offices].”