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May 7, 1969

Leonard J. MAHONEY, Plaintiff,
Robert D. BURKHARDT, Secretary of State, the General Assembly of the State of New Jersey, the Senate of the State of New Jersey, the Speaker of the General Assembly of the State of New Jersey, and the President of the Senate of the State of New Jersey, Defendants

The opinion of the court was delivered by: MCLAUGHLIN

This is a suit to enjoin the June 3, 1969 primary election in New Jersey under the interim apportionment plan certified by the Supreme Court of New Jersey on April 22, 1969. Plaintiff seeks postponement of that election in order to permit the presentment of alternative interim apportionment plans for the conduct of the November general election. He alleges that the said apportionment violates the Fourteenth Amendment of the Constitution of the United States and asserts that "postponement of the primary elections will almost certainly provide New Jersey with a better apportionment scheme for the November, 1969 elections * * *".

 The case is replete with procedural irregularities. For example, plaintiff filed and served upon defendant a "Notice of Motion for Summary Judgment, Or, In the Alternative, Interlocutory Injunctive Relief" on April 28, 1969 just three days before the return date before this Court on May 1, 1969. In the state of the proofs before us the summary judgment application is plainly frivolous. It will be denied. That brings us to the examination of plaintiff's injunction request which involves important constitutional issues.

  Legislative apportionment in New Jersey has a long and difficult history. Knowledge of the state's patient, good faith efforts to obtain acceptable apportionment is vital to an understanding of the current situation. We note, at the outset, that its Supreme Court as early as 1964 ( Jackman v. Bodine, 43 N.J. 453, 205 A.2d 713) and from then on has exercised constant supervision over the problem. Those continuing endeavors to formulate a constitutional apportionment in this complex transitional area of the law must not be ignored. Following the first Jackman decision temporary legislation was enacted to formulate an interim apportionment plan. See L. 1965, c. 19; N.J.S.A. 52:10B-1 et seq. In 1965 the New Jersey Supreme Court, retaining reapportionment jurisdiction under Jackman v. Bodine, found that legislative plan temporarily feasible and a subsequent challenge within the Jackman title was rejected. 44 N.J. 414, 209 A.2d 825. At p. 418, 209 A.2d at p. 827 the Court stated:

"In indicating in our second opinion in this cause that the General Assembly as now constituted could continue for temporary purposes, we had in mind that while the deviations might well be too great in a permanent plan, those deviations would be tolerable in a transitional one, if the total temporary plan were compatible with the objective of Reynolds v. Sims [377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506]."

 Argument was scheduled on the question whether a permanent reapportionment plan could be devised only by a Constitutional Convention. Prior to hearing, legislation was passed providing such Constitutional Convention. That Convention, duly elected and convened, established a new apportionment plan for New Jersey. In November, 1966 the electorate approved the plan. Suit was brought in the state Supreme Court challenging this plan. See Elizabeth Daily Journal v. Burkhardt, 49 N.J. 406, 231 A.2d 193 (1967). In reviewing the plan the Court frankly stated at p. 415, 231 A.2d at p. 198:

"We cannot see in either of these factors a justification for the substantial deviations in question when they can be reduced to the extent indicated by reshuffling of contiguous counties."

 In that opinion some Senate districts were invalidated and the 11-man Apportionment Commission (created by the Constitutional Convention to draw the Assembly Districts) was given the task of preparing new assembly districts in accordance with the Court's ruling.

 While the Court was working its way through the Elizabeth Daily Journal suit, a complaint and order to show cause was filed in the Federal District Court, New Jersey District, Rabkin v. Burkhardt, Civil Action No. 758-67 (1967). That cause was heard and disposed of promptly. The order denying the injunction and dismissing the complaint stated:

"We are also, in the exercise of our discretion, entirely satisfied, even assuming our jurisdiction in this action, that we should abstain from acting therein during the orderly state process of working out the said reapportionment."

 As a result of the holding in the Elizabeth Daily Journal litigation, the 11-man Apportionment Commission was to continue in office and "make a seasonable recertification of Assembly districts for the 1969 election". ( Elizabeth Daily Journal, supra, 49 N.J. p. 420, 231 A.2d p. 201).

 In March, 1969 the Apportionment Commission petitioned the New Jersey Supreme Court for instructions, apparently uncertain regarding the standards to apply in recertifying Assembly districts. That petition was dismissed but the Court conducted a hearing and directed the Commission to file its plan with the Court as well as the Secretary of State. The plan was filed April 7, 1969. On April 21, 1969 the Court heard argument from six objectors. The plaintiff herein did not choose to object in the State Court proceeding although ample opportunity was offered. The opinion of the Court, filed April 22, 1969, in effect rejected the various objections. In upholding the Commission's plan the Court said:

"It is clear that the Commission abided faithfully by the computer output."

 Meanwhile prior to the hearings on the objections to the 1969 apportionment plan, on April 9, 1969, the United States Supreme Court filed its opinions in Kirkpatrick v. Preisler, 394 U.S. 526, 89 S. Ct. 1225, 22 L. Ed. 2d 519, April 7, 1969, and Wells v. Rockefeller, 394 U.S. 542, 89 S. Ct. 1234, 22 L. Ed. 2d 535, April 7, 1969. These, at the very least, rendered New Jersey's state election reapportionment views doubtful. The state Court facing their possible impact, the probable conflict of the New Jersey basic reapportionment plan with the State constitution and the imminency of the coming election, certified the plan for the 1969 elections, retained ...

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