For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None.
In the prior opinion in this cause, Jackman v. Bodine, 43 N.J. 453 (1964), we found that the Legislature of our State is not apportioned in accordance with the requirements of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. We concluded in part that another election could not be held under the existing legislative article of the New Jersey Constitution. This conclusion we found to be required by the views expressed in Reynolds v. Sims, 377 U.S. 533, at p. 585; 84 S. Ct. 1362, at p. 1393; 12 L. Ed. 2 d 506, at p. 541 (1964):
"* * * It is enough to say now that, once a State's legislative apportionment scheme has been found to be unconstitutional, it would be the unusual case in which a court would be justified in not taking appropriate action to insure that no further elections are conducted under the invalid plan. However, under certain circumstances, such as where an impending election is imminent and a State's election machinery is already in progress, equitable considerations might justify a court in withholding the granting of immediately effective relief in a legislative apportionment case, even though the existing apportionment
scheme was found invalid. In awarding or withholding immediate relief, a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws, and should act and rely upon general equitable principles. With respect to the timing of relief, a court can reasonably endeavor to avoid a disruption of the election process which might result from requiring precipitate changes that could make unreasonable or embarrassing demands on a State in adjusting to the requirements of the court's decree. * * *"
In the light of that expression we were compelled to conclude that the election to be held in November 1965 was sufficiently distant to permit the formulation of plans for an election of a Legislature in harmony with the requirements of the equal protection clause. We further held that as a matter of necessity the Legislature could by statute enact a temporary plan for that election leaving the formulation of a permanent plan to others. We left open the question whether the permanent plan must be adopted by a Constitutional Convention or whether it could be accomplished through the amendatory process upon the initiative of a properly apportioned Legislature to be elected in 1965. We went on to say that the present Legislature, although not properly constituted, could initiate the constitutional process utilizing a plan of election to the convention which would fully comport with the rule of "one person, one vote."
The President of the Senate now applies to us for modification of the judgment to the end that a further election may be held this November under the present State Constitution and in connection therewith advises us of plans, still tentative, for the calling of a Constitutional Convention. We have examined the application carefully and considered the argument advanced in support of it and we cannot find any circumstance which would justify the failure to elect a properly apportioned Legislature at the November 1965 election. Reynolds v. Sims makes plain that it would be "the unusual case" in which such further delay could be justified. As the Court there said in amplification of its concept of "the unusual case," the critical fact warranting a delay would be insufficiency
of time to provide a constitutional plan in advance of the next scheduled general election. Obviously there is no such difficulty in the present case.
We add that we do not think the proposal to call a Constitutional Convention constitutes a sufficient circumstance within the meaning of Reynolds v. Sims. For one thing we have no way of knowing whether a convention will result in a proposal which will be self-operative as distinct from one requiring implementing legislation. If further legislation should be required then the State would be confronted by the same problem which it now has of attempting to achieve a detailed plan through the action of a malapportioned Legislature. In any event, as we have said, the call of a convention is not a fact which would relieve us from our obligation to abide by the mandate of the highest court in the land. Hence the application of the President of the Senate must be denied.
We directed argument on two further questions, namely, (2) whether we should at this time undertake to direct the specific basis for the November 1965 election and, if so, (3) what temporary plan we should establish. We are satisfied that we ought not to take any action at this point. As we said in our earlier opinion the temporary problem is basically one for statutory remedy. The primary responsibility and opportunity rest with the Legislature and the Governor in the exercise of their respective roles relating to the enactment of legislation. We cannot find in the moving papers satisfactory evidence that both the Senate and General Assembly have determined that they are unable to resolve this demand upon them. Until a resolution to that effect is adopted by both Houses we should leave the Legislature free to deal with the matter subject, however, to a time limitation necessary to insure orderly preparations for the election in November 1965.
Accordingly, we need not consider what temporary plan the Court should adopt unless (1) both Houses resolve they are unable to adopt a temporary plan, or (2) a statute embodying a temporary ...