For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Weintraub, C.J. Haneman, J. (concurring).
In Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2 d 663 (1962), the Supreme Court of the United States held justiciable the question whether the basis established by a State for election to its legislature denies equal protection of the law in violation of the Fourteenth Amendment to the Federal Constitution. It held also that the federal courts had jurisdiction of the controversy.
The majority opinion expressly refrained from stating a test to measure compliance with the equal protection provision. A view upon that topic appeared but obliquely in the majority's discussion of the claim that the lack of manageable judicial standards made the issue political and nonjusticiable. In that connection the majority opinion said (369 U.S., at p. 226, 82 S. Ct., at p. 715, 7 L. Ed. 2 d, at p. 691):
"* * * Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary and capricious action."
In the matter now before us, plaintiffs sought an adjudication that the provisions of our State Constitution fixing the composition of the State Legislature run afoul of the equal
protection clause. On motion the trial court held those provisions are valid because they reflect a rational policy, thus meeting the standard of the equal protection clause suggested by the above quotation from Baker v. Carr. Jackman v. Bodine, 78 N.J. Super. 414 (Ch. Div. 1963).
We certified the ensuing appeal before the Appellate Division considered it. The matter was argued before us on November 6, 1963. Aware of causes pending in the Supreme Court of the United States, we withheld decision in the hope that the opinions in those matters would spell out the demands of equal protection in this area. On June 15, 1964 the Supreme Court decided Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2 d 506; WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S. Ct. 1418, 12 L. Ed. 2 d 568; Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 84 S. Ct. 1429, 12 L. Ed. 2 d 595; Davis v. Mann, 377 U.S. 678, 84 S. Ct. 1441, 12 L. Ed. 2 d 609; Roman v. Sincock, 377 U.S. 695, 84 S. Ct. 1449, 12 L. Ed. 2 d 620; Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713, 84 S. Ct. 1459, 12 L. Ed. 2 d 632 (1964). We then called for and received further briefs and argument with respect to the impact of those cases.
Counsel for the Speaker of the General Assembly asks that we stay our hand until the Legislature has had an opportunity to act. We do not see how we can do nothing or how such abstention would help.
There are two basic questions involved in this litigation. One is whether the legislative article of our State Constitution is invalid in the respects alleged by plaintiffs. The other, if such invalidity is found, is what must be done to meet the federal demand. Counsel's request that we abstain for the time being may be appropriate with respect to the second question, as to which we shall say more later in this opinion. But as to the first question, we cannot refuse to decide a controversy
that is fully accrued and justiciable. Nor, if we delayed, could the legislators conclude the quarrel. If they unanimously resolved the Legislature was validly constituted, surely plaintiffs would not accept their judgment. And if the legislators unanimously resolved their branch was not validly constituted, some citizen or taxpayer would likely demand the Court's judgment upon the issue; indeed, counsel for the President of the Senate urges the Legislature is properly constituted. Hence that critical question would likely persist until settled judicially.
In Reynolds v. Sims, supra, 377 U.S., at p. 568, 84 S. Ct., at p. 1385, 12 L. Ed. 2 d, at p. 531, the Court, accepting as applicable the aphorism "one person, one vote," concluded:
"We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated, an individual's right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State. * * *"
These two sentences are fused in the companion opinions into the single statement that both houses of a bicameral state legislature must be apportioned "substantially on a population basis." See, e.g., WMCA v. Lomenzo, supra, 377 U.S., at p. 652, 84 S. Ct., at p. 1428, 12 L. Ed. 2 d, at p. 580.
Ours is a bicameral legislature. Art. IV, § I of the Constitution of 1947 provides that "The legislative power shall be vested in a Senate and General Assembly." Section II, par. 1 reads:
"The Senate shall be composed of one Senator from each county, elected by the legally qualified voters of the county, for a term beginning
at noon of the second Tuesday in January next following his election and ending at noon of the second Tuesday in January four years thereafter."
Section III, par. 1 reads:
"The General Assembly shall be composed of members elected biennially by the legally qualified voters of the counties, respectively, for terms beginning at noon of the second Tuesday in January next following their election and ending at noon of the second Tuesday in January two years thereafter. The members of the General Assembly shall be apportioned among the several counties as nearly as may be according to the number of their inhabitants, but each county shall at all times be entitled to one member and the whole number of members shall never exceed sixty. The present apportionment shall continue until the next census of the United States shall have been taken. Apportionment of the members of the General Assembly shall be made by the Legislature at the first session after the next and every subsequent census, and each apportionment when made shall remain unaltered until the following census shall have been taken."
It is at once evident that these provisions of our Constitution, on their face, do not meet the quoted test of Reynolds v. Sims. As to the General Assembly, the apportionment is basically upon population, and it may readily be urged that the apportionment is substantially on population notwithstanding that each county is entitled to one member and the whole number of members may not exceed 60.*fn1 But as to the Senate, it is perfectly plain that the apportionment basis is indifferent
to population. This is true in the literal terms of the constitutional provision; it is equally true in its actual operation because the counties vary widely in population.*fn2
If the Senate is malapportioned, we need not consider whether the General Assembly could pass muster. In Lucas
the Supreme Court held that if one house is malapportioned, the deficiency vitiates the entire legislative structure, obviating the need for considering whether the second house could withstand an attack upon it if it were the sole legislative body. 377 U.S., at p. 713, 84 S. Ct., at p. 1459, 12 L. Ed. 2 d, at pp. 646-47. The reason is that a court cannot fairly assume the people would have intended the one house to survive as the lone repository of the legislative power. Hence, if the Senate is fatally constituted, an expression by us upon the General Assembly would be wholly advisory, there being no remedial proposal before us continuing a legislative body structured as is the General Assembly.
In view of the allocation of one senator to each county, none of the parties before us suggests that our Legislature literally meets the quoted standard of Reynolds v. Sims, but counsel for the President of the Senate, while conceding that much, does contend that our constitutional plan is nonetheless beyond the thrust of Reynolds v. Sims for other reasons to which we now turn.
The principal argument upon which Reynolds is sought to be distinguished runs this way: our legislative plan is essentially the same as that of the Congress and is republican in form; the conclusion in Reynolds that both houses must be apportioned upon population stems from the concept of "one person, one vote"; and since the people at a statewide poll approved the present Constitution on the basis of "one person, one vote," it should follow that the demands of equal protection of the law were met.
One component of the argument is that the state and federal legislatures are essentially the same in structure. We think this is correct. As to the Senate, both Constitutions provide for equal representation of people of existing political areas without regard to their numbers, the Federal Constitution providing for two senators "from each State" (Art. I, §
3; Seventeenth Amendment), while the State Constitution, quoted above, provides for one member "from each county." (Art. IV, § II, par. 1.) As to the lower house, both Constitutions call for apportionment according to population and both assure one representative to each "State" in the case of the Federal Constitution (Art. I, § 2) and to each "county" in the case of the State Constitution (Art. IV, § III, par. 1). The Federal Constitution does not specify the maximum membership of the House, beyond saying that the number of representatives shall not exceed one for every 30,000 people, while the State Constitution fixes the membership at not more than 60. We see no significance in this difference.*fn3
In this connection we note that the counties of our State were established to meet the needs of population centers as they developed, and that whatever partisan advantage may have been thought to reside in the creation of a particular county, county lines have not since been manipulated for such gain. No new counties have been established since 1857, and as a practical matter under our existing Constitution no one today would attempt to gerrymander county lines for partisan purposes. The citizens of each county have a community of interest by virtue of their common responsibility to provide
for public needs and their investment in the plants and facilities established to that end. Anciently, and still today, the counties reflect different economic interests, atlhough of course these economic interests are not perfectly contained or separated by any political line, municipal, county or State. So, certain counties have a dominant concern with manufacturing and commerce; others have a large stake in agriculture; still others lean heavily upon the resort industry; and finally a few counties have a special interest in the products of the sea. And of course there may be competing area interests in such matters as highways, taxation, and water supply.
Hence we think it correct to say that our State Legislature does parallel the federal plan. We think it also true that our legislative structure is a republican form of government within the meaning of Article IV, § 4 of the Federal Constitution under which "The United States shall guarantee to every State in this Union a Republican Form of Government." Our present legislative plan is essentially the same as that provided in our Constitution of 1776.*fn4 The forms of government in the States at the time the Union was formed are deemed to be "republican." Minor v. Happersett, 21 Wall. 162, 88 U.S. 162, 22 L. Ed. 627, 631 (1875).
This brings us to the question whether the comparability of structure of our State Legislature with that of the Federal Congress can be significant in this controversy.
The contending views upon the "federal analogy," as it is called, are well known. On the one hand, it is urged that equal protection requires an equal voice in the selection of legislators to the end that the power to legislate shall reside with the majority of the voters; that both houses, if there are more than one, must be so constituted as to assure the majority will; that the voters' rights are not equal if the amount of their representation depends upon the place where they live or the numbers of their neighbors; that the argument that the minority who elect the majority of one house, being unable to legislate without the concurrence of the popular house, can exercise only a restraining role in the legislative process is of no force because, for protection against the majority, the minority must look to the Bill of Rights and the other limitations upon the popular will to be found in our constitutional plan of government; that area interests receive adequate voice when elections are held in districts rather than at large; and finally that the federal plan cannot be deemed to reflect a different view of the demands of equal protection because the federal structure was devised as a compromise by 13 sovereign States, whereas the counties are mere political divisions or agencies of the State without any sovereignty of their own.
The argument the other way notes that actually the 13 States had already agreed "that the Union shall be perpetual" by the Articles of Confederation, Art. XIII, but nonetheless, if it be granted that the 13 States (perhaps more strictly their inhabitants, i.e., "WE THE PEOPLE of the United States") bargained as sovereigns in the formation of a new constitution, still it does not follow that the "compromise" they reached was an arbitrary invention which denied the people of the United States something so fundamental as equal protection of the law.*fn5 Rather, it is argued, the States agreed
upon that plan because it was well suited to meet the needs of the people, needs which are the same whether the relationship involved is between the people and the Federal Government or between the people and the State Government; that the plan thus accepted was not originated at the Constitutional Convention of 1787, but in fact was an existing form of government, New Jersey for one having that form and of course having adopted it without the pressure of the need for a political union among sovereign entities.
The argument continues that so long as the membership in one house is based on population, the affirmative power to legislate remains in the majority of the people for the reason that the house apportioned on the basis of area can exercise only a veto power; that this veto power is no different in principle from the sundry other restraints upon the majority will which give character to our constitutional plan of government. The point pressed is that no man is a member of the majority upon all issues and hence all the citizens have in common a concern that their interests as members of sundry minorities may not be heard or adequately considered by the majorities of the moment upon a particular issue; that there is no single way for the majority to express its will upon the many topics which arise in the Legislature, even political parties being inadequate to that end; that although county lines surely do not mark the boundaries of most interests, still they reflect enough to permit the majority to vest a veto in a house in which each such area has an equal voice; that despite the constant threats of deadlock and doom which abound in our constitutional system, the necessary statesmanship appears when the need is great, and the experience at the federal level so demonstrates.
Indeed, they argue, the election of State legislators from districts rather than at large from the entire State bespeaks the existence of area interests. More than that, elections by districts involve the same or equal vice, if such it is, of denying a person a meaningful vote because of the place where he
lives; that this is so because a man who votes with the minority party in the county casts a vote which, while it will be counted, surely will not count in the election to these State legislative offices, whereas if the legislators were chosen at large in a statewide election, his vote would not be trapped by district lines. Hence, unless all State legislators are elected at large, it must follow in one way or another that a person will be denied a truly equal vote because of the place in which he lives, while others gain a voice on that very account. In fact, as Mr. Justice Stewart points out in WMCA, 377 U.S., at p. 633, 84 S. Ct., at p. 1418, 12 L. Ed. 2 d, at p. 585, n. 12, districting necessarily means that something less than 50% of the voters may carry the day, and permits a percentage a little over 25 to elect, on party lines, a majority of the legislators.
This debate is not new in our State. The same subject was discussed 120 years ago in like terms and with specific reference to the validity of the "federal analogy." The occasion was the Constitutional Convention of 1844, and the dialogue ran virtually throughout the period of the Convention as reported in Proceedings of the New Jersey State Constitutional Convention of 1844.
The proponents of pure majority rule not only assailed the election of senators on a basis other than population, but also attacked the gubernatorial veto as "anti-republican and anti-democratic" (p. 191), contending it intruded upon the power of a majority to legislate, while defenders of the veto spoke of it as "guarding against hasty legislation" and cited the federal plan to support their position (p. 180). Upon the same majority theme, it was urged that a majority vote should suffice to amend the Constitution, and again the validity of the federal analogy was argued (pp. 57-70). The critical proposal that senators be elected from districts of equal population was finally defeated 37 to 15 (pp. 512-13). It is interesting that the delegates to the Convention, which included many of the distinguished figures of that day, Introduction, Proceedings of the New Jersey State Constitutional Convention
1844, p. 1xx, were well selected upon the basis of the ...